Deputy Commissioner of Taxation v Lewer

[2001] VSC 114

SUPREME COURT OF VICTORIA	Not Restricted
COMMON LAW DIVISION

No. 8014 of 1997

DEPUTY COMMISSIONER OF TAXATION OF AUSTRALIA	Plaintiff
v
GARY LEWER	Defendant

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JUDGE:	Bongiorno J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 March 2001
DATE OF JUDGMENT:	7 March 2001
CASE MAY BE CITED AS:	Deputy Commissioner of Taxation of Australia v Gary Lewer
MEDIUM NEUTRAL CITATION:	[2001]VSC 114

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Taxation – Recovery – Defendant not appearing – R49.02(1)(b) Supreme Court (General Civil Procedure) Rules 1996 (Vic) – s.255-45 Schedule 1 of the Taxation Administration Act 1953 (Cth)

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. P. Sest	Australian Government Solicitor
No appearance for the Defendant

HIS HONOUR:

1. By a writ issued out of this court on 1 December 1997, the Deputy Commissioner of taxation for the Commonwealth of Australia sought the payment of unpaid tax of $1,171,987.95 by the defendant, Gary Lewer.  The matter was defended by Mr Lewer and proceeded through interlocutory stages whilst at the same time Mr Lewer brought review proceedings in the Commonwealth Administrative Appeals Tribunal.

1. Those proceedings resulted in there being a diminution of the tax owing by Mr Lewer and an agreement between him and the plaintiff in respect of tax then due and owing.  The agreement, which is exhibited to the affidavit of John Gleeson of 30 January 2001, provides for a reassessment of the defendant's tax in each of the years ended 30 June 1987 through to 30 June 1996.  In effect, the reduction in tax agreed to by the plaintiff reduced the plaintiff's claim to $373,418.23 in respect of which he issued amended assessments.

1. The plaintiff sought leave to amend his statement of claim in this proceeding.  The defendant took no objection to that application and accordingly on 18 May 2000, the plaintiff was given leave to file and serve an amended statement of claim amending his claim to the sum of $373,418.23 in lieu of the larger sum earlier claimed.

1. On 1 August 2000 the matter came on for directions before Master Kings.  She made an order that the trial of this proceeding take place today, 7 March 2001.  Mr Lewer was present when Master Kings made that order and appeared for himself, his former solicitors having gone off the record at some earlier time and he having not appointed new solicitors.  Mr Lewer did not appear today at court on the hearing of this matter nor did he appear today before the Listing Master.  He was called both here and before the Listing Master and did not appear to either call.

1. I am satisfied that he knew the date upon which this trial was to take place both from the fact that he was present when Master Kings fixed a date and also from the fact that on 20 February he was served by post with a copy of the court book in the proceeding by Ms Donnal Marie Galea who has deposed to that fact. Accordingly, I granted Counsel for the plaintiff's application that the trial of this action proceed pursuant to R.49.02(1)(b) the defendant not having appeared.

1. The Deputy Commission of Taxation enjoys a number of procedural advantages over ordinary litigants conferred upon him by the legislation which permits tax to be collected and arranges for the mechanism to do so. One of those advantages is the ability to conduct a trial of this nature on affidavit, provision being found in s. 255-55 of Schedule 1 of the Taxation Administration Act 1953 (Commonwealth) which provides a number of items of administrative assistance to the Commissioner in proving his claim. For one thing, as I have indicated, he can proceed by way of affidavit. Secondly, he can proceed by way of an evidentiary certificate which provides prima facie evidence of the matters contained in it including matters relating to the service of assessments, the quantum of assessments and the total amount owing.

1. In this case, the plaintiff has amply proved his claim in a number of different ways. For one thing, Mr Gleeson has exhibited a certificate under s. 255-45 of the Taxation Administration Act 1953 to the effect that I have just mentioned, that is to say, that Notices of Assessment were served on Mr Lewer and that the sum of $373,418.23 was owing to the Commonwealth of Australia as at 30 January 2001. The claim has also been proved by the production of the agreement dated 8 October 1999 whereby the proceedings brought by the defendant in the Administrative Appeals Tribunal were compromised in the way I have indicated, again leading to the result that the defendant is indebted to the plaintiff in the amount he now claims. Further, the first affidavit of Mr Gleeson, sworn 3 April 1998, deposes to the complete original assessment and the sum originally claimed in the original writ which, of course, was only owing until the compromise affected at the Administrative Appeals Tribunal.

1. On the basis of all of this material, and in particular the two affidavits of Mr Gleeson to which I have referred and the exhibits to those affidavits, I am satisfied that the defendant is indebted to the plaintiff for unpaid tax in the amount claimed namely, $373,418.03.  And accordingly, there will be judgment for the plaintiff in the sum of $373,418.23 together with interest.

1. Interest is claimed on the amount of $369,899.05 being the principle tax owing as particularised under paragraph 3 of the Amended Statement of Claim to which I have referred.  This figure is slightly lower than the amount in respect of which I have just entered judgment because the plaintiff does not seek interest on additional tax payable pursuant to s. 207 of the Income Tax Assessment Act or interest payable pursuant to s. 207A of that Act.  Accordingly, the amount upon which interest is claimed is some $4,000.00 less than the sum in respect of which judgment has been entered.

1. There will be interest at the appropriate rate pursuant to the Penalty Interest Rate Act (Vic) and upon my being assured by Counsel for the plaintiff that the calculation set out in the documents he has given me is correct, I will add interest of $149,453.03, being the amount calculated up to today so that the total judgment will be $522,768.26. 

1. The plaintiff seeks costs.  I will further order that the defendant pay the plaintiff's costs of the action to be taxed. 

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CERTIFICATE

I certify that this and the 2 preceding pages are a true copy of the reasons for judgment of Bongiorno of the Supreme Court of Victoria delivered on 7 March 2001.

DATED this seventh day of March 2001.

Fiona Ring
Associate to Justice Bongiorno