Deputy Commissioner of Taxation v Miller - [2021] WADC 29

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   DEPUTY COMMISSIONER OF TAXATION -v- MILLER [2021] WADC 29
CORAM:   RUSSELL DCJ
HEARD:   19 FEBRUARY 2021
DELIVERED          :   23 FEBRUARY 2021
FILE NO/S:   CIV 2244 of 2017
BETWEEN:   DEPUTY COMMISSIONER OF TAXATION
Plaintiff
AND
WAYNE ROBERT MILLER
Defendant

Catchwords:

Practice and procedure - Application for leave to extend time for filing affidavit evidence - Case management principles - Application for further discovery - Orders sought would require vacation of trial - Turns on own facts

Legislation:

District Court Rules 2005 (WA) r 6, r 48B(3)
Rules of the Supreme Court 1971 (WA) O 1 r 4A, O 1 r 4B, O 26 r 6, O 26 r 7, O 26 r 6(3), O 37 r 6(3A)
Taxation Administration Act 1953 (Cth) s 269-15, s 269-15(2)(a), s 269‑15(2)(a)(i), s 269-35(2), s 269-35(2)(a)

Result:

Application dismissed

Representation:

Counsel:

Plaintiff	:	Mr P A Walker
Defendant	:	Mr H Q Vu

Solicitors:

Plaintiff	:	Minter Ellison
Defendant	:	Forbes Kirby

Case(s) referred to in decision(s):

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Brocx v Hughes [2010] WASCA 57
DCT v Saunig (2002) 55 NSWLR 722
Firmware Technologies Inc v Asia Platinum Group Ltd [2016] WASCA 179
Perpetual Trustees Co Ltd v Burniston [2012] WASC 26
Roche v DCT [2015] WASCA 196
Rowe v Stoltze [2013] WASCA 92
Singh v Friedman [2013] WASC 78
Westraint Resources Pty Ltd v BHP Iron Ore Ltd [No 4] [2009] WASC 17

RUSSELL DCJ:

This decision was delivered extemporaneously on 23 February 2021 and has been edited from the transcript.

Introduction

This action is listed for trial for four days commencing on 2 March 2021.
On 19 February 2021, I heard the defendant's application by chamber summons filed on 5 February 2021 seeking:
1.leave to extend the time for filing and serving his affidavit and to adduce his affidavit as his evidence in chief at trial; and
2.further and better discovery of documents referred to as Microsoft Office Communicator records between 2009 and 2017 as set out in the chamber summons.
The application is supported by the following affidavits:
1.affidavit of Mr Huan Vu sworn on 5 February 2021, a solicitor employed by Forbes Kirby legal, the defendant's solicitors; and
2.affidavits of Wayne Robert Miller, the defendant, affirmed on 5 February 2021 and 19 February 2021.
The Affidavit of Mr Miller affirmed on 19 February 2021 was filed on the morning of the hearing of the application and not brought to my attention until the commencement of the hearing. Counsel for the plaintiff had also had very little notice of the further affidavit, but had had an opportunity to briefly consider it and did not object to it.
The plaintiff did object to par 12 of Mr Vu's affidavit sworn on 5 February 2021. I address this separately in dealing with the application for further discovery.
The plaintiff opposes the defendant's application and filed a written outline of submissions on 16 February 2021.
The defendant filed a written outline of submissions at approximately 10.00 pm on 18 February 2021.
By order 6 of the orders made on 3 February 2020 (Orders) this action was originally listed for trial for five days commencing on 3 August 2020.
I have considered each of the affidavits filed in support of the application, the parties' written and oral submissions and, in relation to the procedural history and orders made in this matter, I have also had regard to the documents filed and held on the e-file.

The plaintiff's claim and the defence to it

I will briefly set out the plaintiff's claim and the defences pleaded by the defendant.
The plaintiff, the Deputy Commissioner of Taxation (Commissioner), claims payment from the defendant, Mr Wayne Robert Miller, of directors' penalties in the amount of $361,841 under div 269 of the Taxation Administration Act 1953 (Cth) (TAA), together with interest and costs.
The plaintiff claims that the directors' penalties arise from Pay As You Go withholding amounts withheld from wages and salaries of employees of two companies of which Mr Miller was director. Those two companies are ACI Broking (WA) Pty Ltd (a wholly owned subsidiary of Insured Group Ltd) and Australian Consolidated Insurance Pty Ltd.
It is not in dispute on the pleadings that the companies withheld amounts and failed to meet their obligations under the TAA to pay each of the amounts withheld to the Commissioner.
Nor is it disputed that Mr Miller, as a director of the companies at the relevant times, was under an obligation under s 269-15 in sch 1 of the TAA to cause the companies to comply with their obligations to pay the amounts withheld to the Commissioner by each due day.
However, Mr Miller denies the amount claimed and raises the following positive defences.
First, he claims that he took all reasonable steps to cause the companies to comply with their obligations for the purposes of s 269‑15(2)(a) of sch 1 of the TAA and, as such, is not liable to pay the penalties by reason of the statutory defence in s 269-35(2)(a) of sch 1 of the TAA. There are 14 positive steps alleged by the defendant, which are pleaded in some detail in schedule 1 to the defence.
Secondly, he claims that the plaintiff is estopped from bringing the claim against him or has waived the right to do so. There are three alternative pleas in this regard.
First, the defendant pleads an estoppel, to the effect that the Commissioner induced an assumption that she agreed that the steps being taken by the defendant were reasonable steps to cause the companies to comply with their obligations to pay the amounts withheld and would not, without notice, resile from the assumed position while the defendant took those steps. The defendant alleges that the assumption was induced either by the plaintiff making a representation or by conduct by negotiating with the defendant in relation to the defendant's execution or fulfilment of the steps and not taking legal action to compel payment or to otherwise have the companies wound up. This estoppel claim is set out in detail in the pleading, but in essence, the defendant claims that he relied on the assumption, the plaintiff knew that and is estopped from resiling from it by the issue of these proceedings and asserting that the steps taken by the defendant were not reasonable steps for the purpose of s 269‑35(2)(a) of the TAA.
There are alternative pleas of an estoppel by convention and an election or waiver by the plaintiff to the effect the plaintiff would not resile from the alleged position that the steps taken by the defendant were reasonable.
The third positive defence is that the companies made certain payments against the Pay As You Go withholding amounts, which are pleaded in schedule 2 to the defence.
The plaintiff generally joins issue with the defence.

Procedural history and orders relating to trial

This matter was commenced by writ on 27 June 2017.
The current iteration of the statement of claim - the further amended statement of claim was filed on 31 August 2018.
The latest iteration of the defence - the amended defence was filed on 16 January 2020.
The plaintiff's reply to amended defence was filed on 29 January 2020.
The plaintiff filed its affidavit of discovery on 11 December 2018 and has filed further affidavits of discovery on 11 February 2020, 11 June 2020 and 27 July 2020.
The defendant filed his affidavit of discovery on 30 January 2019.
The action was originally listed for trial at a listing conference before Registrar Kingsley on 3 February 2020. The trial was listed for five days commencing on 3 August 2020.
The Orders made on 3 February 2020, included (relevantly):
1.Order 7 - that the evidence in chief of all witnesses at the trial be given by affidavit;
2.Order 8 - no later than 49 days before the date of the trial the plaintiff must serve a signed and dated affidavit sworn by each witness to be called by the plaintiff containing the evidence in chief of the witness and annexing all documents to be tendered through the witness.
3.Order 10 - An order was also made in those terms in relation to the defendant except that he was required to serve a signed and dated affidavit sworn by each witness to be called by the defendant at the trial no later than 35 days before the trial date.
4.Order 15 - no party may adduce evidence from a witness who has not sworn an affidavit which has been filed and served in accordance with the Orders.
5.Order 16 - each party must make available the deponent of each affidavit filed on behalf of a party pursuant to this order for cross examination at trial unless each other party has consented in writing to the witness being excused from attending the trial.
On 11 June 2020, the plaintiff filed and served its affidavit evidence for trial as required by Order 8 of the Orders - affidavit of Yi Deng sworn 11 June 2020.
By letter filed on 1 July 2020, the plaintiff wrote to the Court stating that the defendant was in default of Order 10 of the Orders as he had not filed affidavit evidence for trial, which was to be filed 35 days before the commencement of trial on 3 August 2020. That is 29 June 2020.
The matter was listed for a hearing before Registrar Kubacz on 3 July 2020.
The defendant's then solicitor, Ms Julie Grant of Capital Legal, gave evidence by affidavit sworn on 3 July 2020, amongst other things, to the effect that Mr Miller had not filed his affidavit evidence for trial because he was seeking to resolve the matter, had made offers of compromise and expected the matter could be resolved by negotiation before trial. She also gave evidence to the effect that on the reasonable expectation that settlement could be negotiated, Mr Miller instructed her that due to his financial position he could not finance the costs of the expert witness and sought to mitigate legal costs in preparing for trial generally.
Ms Grant stated in her affidavit that she believed Mr Miller would be prejudiced if the trial was not vacated and relisted at a time that permitted him a reasonable opportunity to continue negotiations to settle the matter or alternatively to obtain finances required to run his defence and comply with the mandatory trial preparation timetable.
The defendant now submits that the reason the original trial dates were vacated was because the defendant was not in a financial position to continue to retain his then current legal counsel and instructing solicitors and that he would not be able to prepare for trial in time as a litigant in person. Whatever the true position was, orders were made by Registrar Kubacz on 3 July 2020 vacating the trial at the request of the defendant and for it to be relisted on the first available date after 1 October 2020.
The defendant's current legal representatives, Forbes Kirby Lawyers filed notice of change of representation on 22 July 2020 and have been the solicitors on record for the defendant since that time.
By order of Registrar Kingsley dated 27 July 2020 the trial was relisted for four days commencing on 2 March 2021.

The defendant's application to file and serve affidavit evidence and adduce it at trial

I will deal firstly with the defendant's application to file and serve affidavit evidence and adduce it at trial.
Having regard to the relisted trial date of 2 March 2021, Order 10 of the Orders required the defendant to serve any affidavits he intended to rely on and adduce as evidence‑in‑chief at trial by 25 January 2021.
As the time for filing his affidavit evidence for trial has expired, the effect of Order 15 of the Orders is that the defendant cannot adduce any witness evidence at trial.
By his application filed on 5 February 2021, the defendant seeks leave to file and serve affidavit evidence and to adduce it at trial.
Neither the application nor the evidence filed in support provide for when any such evidence will be filed. Nor does the evidence filed satisfactorily explain the reason for the delay. There is no evidence as to what steps, if any, have been taken to prepare the affidavit evidence, the status of any draft affidavit evidence, the extent of the evidence and the time required to complete and serve it.
The defendant's written submissions give reasons for the delay in general terms, though these are at a very high level and not directly supported by the evidence.
The high level reasons given for the delay in the submissions are:
1.The complexity of the matter.
2.The many and varied reasonable steps the defendant took to cause the companies to comply with their obligations over the course of several years as set out in schedule 1 to the amended defence filed on 16 January 2020.
3.The matters about which the defendant must give evidence extending as far back as 10 years.
4.The defendant having only recently appointed new solicitors. In relation to that, I note that the defendant appointed his current solicitors in July 2020 - some seven months ago. That cannot be characterised as only recently.
The other high level reasons stated in the submissions are:
1.The defendant's limited financial resources; and
2.The defendant's medical issues and subsequent surgeries between August 2020 and January 2021, causing delays to the provision of instructions to his solicitors.
In relation to the application for leave to adduce affidavit evidence, Mr Vu gives evidence in his affidavit sworn on 5 February 2021 about his requests for transfer of Mr Miller's file from his former solicitors, Capital Legal, and evidence to the effect that he was informed by them on 20 August 2020 that a USB and hard copy file was available for collection.
In his affidavit affirmed on 5 February 2021, Mr Miller deposes to various medical issues he has had between 29 July 2020 and January 2021. None of these are supported by evidence from a medical practitioner. Nor is there any evidence from a medical practitioner as to how the issues Mr Miller deposes to have or are likely to have affected his ability to provide instructions to his lawyers or to prepare his affidavit evidence.
Mr Miller himself gives very limited and vague evidence about this. He refers briefly (at par 10.7 of his 5 February 2021 affidavit) to having various telephone conferences with his solicitors and being requested to search his archives for documents and provide instructions relating to all companies of which he was a director. At par 10.8 of that affidavit, he says he was unable to gather relevant documents and provide instructions as a consequence of pain and the strong painkillers.
At par 12 of his affidavit of 5 February 2021, Mr Miller refers to taking large doses of painkillers. He says he is advised by his doctors that it is recommended that he be cautious with tasks that require significant concentration. Otherwise, there is no explanation as to what steps, if any, have been taken in relation to preparing the affidavit evidence, including prior to the medical issues deposed to.
In his affidavit affirmed on 19 February 2021, Mr Miller does provide further evidence as to how he says his medical issues have affected his ability to instruct his solicitors, though this is unsupported by evidence from any medical practitioner.
He states that the drugs and surgeries he has referred to in his affidavit affirmed on 5 February 2021 have severely affected his ability to use a keyboard, to concentrate and stay awake and to formulate thoughts or think coherently. He says that the concoction of drugs has affected his ability to provide his solicitors with sufficient instructions. He also says he was incapacitated between October 2020 to January 2021 as a result of the surgeries and number of drugs he was taking as prescribed and that prevented him meeting with his solicitors to provide them with instructions in relation to the preparation of his affidavit.
There is no evidence from Mr Miller's solicitors as to what, if any, instructions they have sought and when or as to any difficulties in obtaining instructions.
Though the defendant appears to rely on the medical issues he has deposed to as a reason for being unable to instruct his solicitors, his evidence tends to suggest that he has not provided instructions to his solicitors to prepare his affidavit to save legal costs.
Specifically, in his affidavit of 19 February 2021, Mr Miller says he has not provided instructions to his solicitors between October 2020 and January 2021 to prevent an increase in legal fees.
In his affidavit affirmed on 19 February 2021, Mr Miller also states that since the commencement of these proceedings, he has suffered significant difficulty in maintaining legal representation and on several occasions has not been able to continue funding his legal representation and has requested his solicitors to cease working for him. He says he has on many occasions contemplated representing himself for the remainder of the proceedings.
He says that in about December 2019, he instructed his previous solicitors, Capital Legal, to cease conducting further work on his matter because he could not afford the associated costs and contemplated terminating his retainer with that firm and representing himself.
He says that he instructed his former solicitors, Capital Legal, to cease conducting further work in around April 2020.
He deposes to having paid approximately $120,000 in legal costs to Capital Legal, which he says he funded from a private venture capital firm. He says he has exhausted all possible avenues in an attempt to retain legal representation to progress this matter to its ultimate conclusion and has suffered significant financial and personal hardship as a result of the proceedings.
Mr Miller states that, notwithstanding the serious financial hardship he has suffered, and continues to suffer, he has instructed his solicitors to prepare an affidavit covering all the reasonable steps he took to cause the companies to comply with their respective obligations. It is not clear from Mr Miller's evidence and Mr Vu's submissions what, if any, work has been done to prepare his affidavit evidence.
Mr Miller sets out at par 30 of his 19 February 2021 affidavit the matters to be included in his evidence for trial. I do not repeat those matters in detail here. They include evidence as to the 14 reasonable steps set out in schedule 1 to the defence, his attempts to sell assets and businesses owned by Insurance Group Ltd and advice sought and his efforts to list Insurance Group Ltd on the Australian and New Zealand Stock Exchanges.
In his oral submissions, in response to questions as to the status of Mr Miller's affidavit and how long it would take for it to be prepared or finalised, Mr Vu did not provide any definitive answer other than to say that Mr Miller's affidavit would not be completed in time for the trial.
Mr Vu submitted that new counsel has only recently been briefed and was presently reading into the brief. He said that counsel has identified deficiencies in the affidavit that will need to be addressed, but did not elaborate in relation to this.
Mr Vu submitted that Mr Miller will be prejudiced if he is not given further time to file and serve his affidavit evidence and not being able to adduce any evidence as to the reasonable steps taken will be fatal to his defence.
Mr Vu has acknowledged that the effect of the court making the order the defendant seeks is that the trial dates must be vacated. He said that if the trial is adjourned for one month the defendant would be in a position for and ready for trial.
However that does not take into account the further time that will be required by the plaintiff to consider the evidence, deal with any evidence in response or other evidentiary matters arising and the effect of the evidence on its preparation for trial.

The lack of evidence and information provided makes it very difficult, if not impossible, for the court and the plaintiff to assess any potential prejudice arising to the plaintiff.
Mr Vu submitted that any prejudice to the plaintiff of vacating the trial could be dealt with by way of a costs order in favour of the plaintiff for the costs thrown away. The limited evidence of Mr Miller's financial position before the court suggests it is unlikely that Mr Miller would be in a position to meet any such costs order. In any event, following Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175, whether any prejudice caused by an adjournment of trial can be compensated by costs, is not the court's sole consideration in the proper exercise of the court's discretion in an application such as this.

The plaintiff's position

The plaintiff opposes the application.
The plaintiff points to this being the second time the defendant has defaulted in serving evidence in compliance with the court's orders. The plaintiff submits that it is ready to proceed to trial and the effect of the orders sought by the defendant is a de facto application to vacate the trial, having stated that the time required for serving his affidavit evidence would defer the trial by at least one month. The trial is due to commence in less than five working days from today.
The plaintiff also states that the essential information the court requires to determine the appropriateness of the grant of leave to adduce evidence late and the effect of it is lacking. There is no evidence as to the length of the affidavit, nor as to the volume of documents to be annexed to it to allow the plaintiff or indeed the court to assess the effect of its late service.
The plaintiff also points to there being no sufficient explanation for the delay in filing the evidence.

Disposition

Ordinarily, the court would expect detailed evidence as to the nature and extent of the evidence sought to be adduced so that consideration may be given to the effect of any prejudice caused by allowing it to be filed and served late.
Such evidence has not been provided. It may be inferred that the affidavit evidence is likely to be substantial, given the extent of the matters referred to in schedule 1 of the defence.
The defendant's application must be considered in the light of the decision of the High Court in Aon Risk Services Australia Ltd v Australian National University, in which the court pointed out that the rules concerning civil litigation are no longer to be considered as directed only to the resolution of the dispute between the parties to a proceeding. The achievement of a just but timely and cost‑effective resolution of a dispute has an effect upon the court and upon other litigants. Whilst parties have the right to invoke the jurisdiction and the powers of the court in order to seek a resolution of their dispute, where a party has had a sufficient opportunity to present or plead his or her case, it may be necessary for the court to make a decision which may produce a sense of injustice in that party, for the sake of doing justice to the opponent and to other litigants.
As observed by the Court of Appeal in Brocx v Hughes [2010] WASCA 57 [93] - [94], whilst those observations in Aon were made in respect of a late application to amend a pleading, they are of general application. They were made in the context of rules of court which find their counterpart in O 1 r 4B of the Rules of the Supreme Court 1971 (WA) (RSC). That rule provides, in effect, that the rules and the processes and procedures of the court are to be applied so as to best attain the just determination of litigation, the efficient use of the limited resources of the court, and the timely disposal of the business of the court at a cost affordable by parties.
The principles of case management in Aon [102] - [106] apply in the circumstances of this application. As I have noted, I must also take into account the efficient use of the court's resources and the effect on other litigants waiting to be heard.
That also includes, generally speaking, where a discretion is sought to be exercised in favour of one party, and to the disadvantage of another, an explanation will be called for. Not only will the party need to show that their application is brought in good faith, they will also need to bring the circumstances giving rise to it to the court's attention, so that they may be weighed against the effects of any delay and the objectives of the RSC.
The observations of Chief Justice French in Aon [5] and [30] are also apposite, particularly in relation to applications such as this which have the effect of vacating fixed trial dates and further delaying resolution of the dispute.
The defendant refers in his submissions to the general rule of procedural fairness and to it requiring a party to be given sufficient opportunity to adduce evidence in their defence. Whilst that is generally so, as observed by the Court of Appeal in Firmware Technologies Inc v Asia Platinum Group Ltd [2016] WASCA 179 [45], the rules of procedural fairness do not give the defendant an absolute right to adduce evidence when he has failed to take advantage of that opportunity in conformity with procedural directions and orders made by the court. I also refer to Rowe v Stoltze [2013] WASCA 92 in relation to procedural fairness as to how a reasonable opportunity to present one's case is to be judged having regard to the matters there stated.
The Orders made in this case were clear. The defendant was required, for the purpose of the trial commencing on 2 March 2021, to serve any affidavit evidence he sought to adduce at trial by no later than 25 January 2021. Order 15 of the Orders expressly provide that if he did not do so he could not adduce the evidence.
The defendant's failure to comply with the court's orders and its late application are also relevant considerations.
I do not accept the defendant's submission to the effect that the defendant should not be prevented from filing his evidence late because the plaintiff stands in a superior position to the defendant and will not suffer prejudice because of its access to Commonwealth resources and by reason of s 350-20 of sch 1 to the TAA.
The plaintiff is entitled, as is any other plaintiff, to procedural fairness and to have the dispute determined efficiently and expeditiously and without delay. The plaintiff has complied with the court's orders, having filed the affidavit evidence it intends to adduce at trial in June 2020 before the original trial dates were vacated at the defendant's request.
As I have already observed, there is nothing in the defendant's application or in the evidence filed in support as to the extent of the evidence sought to be filed or the time required for its preparation and filing. Whilst the affidavit filed on the morning of the hearing of the application provides some explanation for the delay, it is lacking in detail of the type ordinarily expected for applications such as this.
There is no satisfactory evidence before me explaining the delay or as to the steps taken in relation to preparation of the affidavit, its state of readiness or otherwise.
Nor is there any evidence as to the volume of the affidavit evidence the defendant seeks to adduce and the documents likely to be attached to allow an assessment of any prejudice arising if leave is given to serve it late.
As I have noted, this action has been on foot since July 2017. The defendant has been on notice since at least that time, of the plaintiff's claims against him.
The pleadings closed over a year ago.
The Orders were made in February 2020, also over a year ago, requiring the parties to file any affidavit evidence they wished to adduce at trial no later than 35 days before the date fixed for the trial.
The trial of this matter has already been vacated once at the defendant's request.
The defendant was originally required to file his affidavit evidence by 29 June 2020, being 35 days before the trial when originally listed for hearing commencing on 3 August 2020. He failed to do so and sought to vacate the trial as he needed further time to prepare his evidence.
The time for filing any affidavit evidence to be adduced at trial by the defendant expired on 25 January 2021.
Whilst I have sympathy for the health issues deposed to by the defendant, they are not supported by medical evidence and no evidence has been given by a medical practitioner as to how those health issues have or may have affected the defendant's ability to prepare the affidavit evidence he now seeks leave to adduce. The defendant's own evidence in this regard is at a very high level and lacking in specificity. There is no evidence from the defendant's solicitors in relation to this.
In any event, though Mr Miller gives evidence of medical issues that he says have hampered preparation of his evidence, his evidence is to the effect that he has instructed his solicitors to cease work and not prepare his affidavit evidence to save incurring legal costs.
Whilst I also have sympathy for the defendant's financial position and the limitations that may impose on him and his ability to finance this litigation and to instruct lawyers, there is no evidence that this position is likely to change and the trial of this matter cannot continue to be vacated and delayed.
Also, as I have noted, there is no evidence before the court as to what steps, if any, the defendant and his solicitors have taken to prepare the affidavit evidence sought to be adduced and when. I would expect that detailed instructions and all relevant documents would have been provided by Mr Miller to his solicitors to enable them and his former counsel to plead the detail of the 14 reasonable steps pleaded in schedule 1 to the defence and for the purpose of discovery.
However, Mr Miller's evidence indicates that no recent instructions have been provided by him in the period July 2020 to January 2021. Whilst he says he has now provided instructions to his solicitors to prepare his affidavit evidence, there is no evidence before me that his ability to provide instructions from a medical or financial perspective has changed from which I can be satisfied that Mr Miller will be in a position to file his affidavit evidence if I give him the opportunity to do so.
I have enquired of each of the parties as to the readiness of this matter for trial on 2 March 2021, leaving aside the matters the subject of the defendant's application.
The plaintiff has confirmed that he is ready to proceed to trial on 2 March 2021. The plaintiff filed and served his list of witnesses and a bundle of materials for trial in accordance with Orders 29 and 30 of the Orders.
The defendant has advised that he is not ready for trial on 2 March 2021 due to non-compliance with Orders 17 - 21 of the Orders in relation to documents to be tendered at trial other than those annexed to affidavit evidence served in accordance with the Orders.
The plaintiff says it does not intend to tender any other documents and as such did not give notice of any additional documents to the defendant under Order 17.
The defendant has not given any notice to the plaintiff of documents it intends to tender at trial that are not annexed to a party's affidavit.
The defendant has stated that he has not complied with Orders 28 or 29 of the Orders and is not in a position to do so until such time as his affidavit evidence‑in‑chief is filed and served. This presupposes that leave to do so will be granted.
If the current trial dates of 2 - 5 March 2021 are vacated, taking into account the court's availability to relist the trial and counsel's availability, the trial could not be relisted until at least late 2021.
Having regard to all of the matters I have outlined, the defendant's application for leave to adduce his affidavit evidence at tiral is dismissed. This is particularly so where the defendant has had the opportunity to put on evidence and has failed to avail himself of that opportunity. Also, to allow the application will result in the trial of the action being vacated for a second time as a result of inaction and a failure to comply with court orders on the part of the defendant.
Having regard to all the matters I have outlined, the defendant's application for leave to adduce his affidavit evidence at trial is dismissed.

Discovery application

I now turn to deal with the defendant's application for further discovery.
The defendant seeks an order that the plaintiff give further and better discovery of Microsoft Office Communicator records of the plaintiff for the period between 2009 and 2017, relating to the matters set out in the chamber summons.
For the reasons that follow, the defendant's discovery application should be dismissed.
The defendant's application for further discovery is made at a very late stage - less than one month before the date fixed for trial.
Rule 48B(3) of the District Court Rules 2005 (WA) (DCR) provides that unless justice otherwise requires, the court will not grant an interlocutory application filed after a case is listed for trial if, to do so, would necessitate adjourning the trial.
If I was to make the orders sought, given the proximity of trial, that would no doubt necessitate adjournment of the trial.
However, and in any event, the application fails to meet the criteria for an order to be made requiring the plaintiff to give the further discovery sought.
The chamber summons heading states that the discovery application is made pursuant to O 26 r 7 of the RSC, though it is expressed in terms of seeking further and better discovery, to which O 26 r 6 applies. The defendant's submissions are also consistent with an application under O 26 r 6.
Order 26 r 6(3) provides that an application under O 26 r 6 must be supported by an affidavit stating the belief of the deponent that the party for whom discovery is sought has, or at some time, has had, in their possession, custody or power the document or class of document specified or described in the application and that it relates to one or more of the matters in question in the cause or matter.
The onus is on the defendant, as the party seeking the further discovery, to satisfy the court that the orders should be made: Perpetual Trustees Co Ltd v Burniston [2012] WASC 26 [26].
The plaintiff's written submissions set out the legal principles that apply to the application at pars 32 and 33. The defendant accepts those principles in his written submissions at par 38. They are those set out in Perpetual Trustees Co Ltd v Burniston to which I have just referred at [29] - [35] and the authorities there cited.
I also note and adopt Justice Allanson's summary of the authorities and general principles relating to discovery in Singh v Friedman [2013] WASC 78 [3] - [4].
The power to order discovery is discretionary. The discretion is to be exercised having regard to the principles in O 1 r 4A and O 1 r 4B of the RSC. This includes:
1.the timely and cost effective disposal of litigation;
2.whether the discovery is necessary for fairly disposing of the proceedings;
3.relevance to the matters in question, which is to be determined by reference to the pleadings, the conduct and any admissions of the parties and the nature of the action; and
4.the notion of proportionality, which requires the court to assess whether the forensic benefit to be derived is proportionate to the cost and delay which will flow from undertaking the process, having regard to the value, importance and complexity of the subject matter of the dispute and the financial position of the parties.
In relation to an application for further and better discovery, and as the defendant accepts, the following three requirements must be satisfied:
1.that the court has reasonable grounds for being fairly certain that the documents (or class of documents) sought exist;
2.that the documents sought are relevant; and
3.the documents ought to have been disclosed.
As the defendant also accepts, even if all those matters are satisfied, there is no right to an order for discovery. The court will only exercise its discretion to order further discovery if it is necessary for the fair and just determination of the issues in contention and for the preparation of, or conduct of, the case at trial.
As noted earlier, the plaintiff gave discovery by affidavit on 11 December 2018 and filed further affidavits of discovery in February, June and July 2020.
As stated by Le Miere J in Westraint Resources Pty Ltd v BHP Iron Ore Ltd [No 4] [2009] WASC 17 [10] and the authorities there cited, an affidavit of discovery is conclusive against the party seeking discovery except where:
… the discovery is shown to be insufficient in one of two ways. The first is that the insufficiency appears from the pleadings, the affidavit(s) of discovery, the documents discovered or from any other source that constitutes an admission of the existence of a discoverable document. The second way is that it appears that the party has excluded documents under a misconception of the case by the party making the affidavit(s) and the court is practically certain that he has in his possession, custody or power, other relevant documents which ought to have been disclosed and which he would have disclosed if he had rightly conceived his case: British Association of Glass Bottle Manufacturers Ltd v Nettlefold [1912] AC 709: Mulley v Manifold (1959) 103 CLR 341, 343.
The evidence in support of the defendant's application for further and better discovery is contained in pars 11 - 15 of Mr Vu's affidavit sworn on 5 February 2021.
Mr Vu states in his affidavit at par 11 that on reviewing the discovery documents and all the documents provided by the defendant's former lawyers, he did not sight any Microsoft Office Communicator records, notes or data. He states that he did observe Siebel Notes and Work Management Activity Notes Report which relate to notes taken by the Australian Taxation Officer (ATO) staff regarding Mr Miller's payment plan proposals and some decisions made by the ATO staff relating to Mr Miller. The reference to ATO staff is, of course, reference to staff of the Australian Taxation Office.
There is no evidence as to when that review took place or why the application for further discovery is only now being made at this late stage of the proceeding and so close to the dates fixed for trial. Discovery was initially given by the plaintiff in December 2018 and supplemented in February 2020, June 2020 and July 2020. No explanation is given for the delay in making the application.
At par 12 of Mr Vu's affidavit, he states that in previous matters in which he has acted for parties against the plaintiff he has knowledge of the matters set out in that paragraph about the use of Microsoft Office Communicator by ATO staff. He describes Microsoft Office Communicator as being used regularly by ATO staff to contact each other to assist with decision making. He says that ATO staff use it internally between internal departments to negotiate outcomes and gives examples of circumstances in which he says it is used by ATO staff.
The plaintiff objects to the admissibility of par 12 of Mr Vu's affidavit on the basis that it is evidence based on information or belief that the deponent has not identified the source of as required by O 37 r 6(3A) of the RSC, which applies in this court by virtue of r 6 of the DCR.
The plaintiff submits that the knowledge Mr Vu deposes to have about the existence of Microsoft Communicator records is said to be based on his experience as a solicitor acting for parties other than the ATO in cases other than this one. It is submitted that he does not have any direct, personal experience of ATO practice or the records kept by the ATO keeps. He is not a former employee of the ATO. His knowledge can only be based on things he has read in documents or things that have been said in his presence by others and that he believes to be true. He is required to state the source of his information and belief. It is not enough for him to say in general terms that he knows things because he has acted against the ATO in the past, in matters other than this.

I uphold the plaintiff's objection to par 12 of Mr Vu's affidavit of 5 February 2021. There is no evidence that Mr Vu has direct knowledge of the matters he deposes to. As stated, the knowledge that Mr Vu deposes to is derived from previous matters in which he has acted for parties against the plaintiff. He does not state when he is said to have derived that knowledge and does not identify the particular source of his knowledge. For example by reference to any particular documents or communications said to be the source of his information and belief of the matters stated.
In any event, I am not satisfied that the matters stated in par 12, nor the following pars 13 - 15, provide reasonable grounds for me to be fairly certain that the particular Microsoft Office Communicator documents or class of documents sought relating to the defendant and the matters in question the subject of this proceeding exist or have existed or as to the content or likely content of the documents.
Nor does the affidavit identify the relevance of the Microsoft Office Communicator records to the matters in question. Bare assertions as to the documents existence and relevance is insufficient for the purpose of compliance with O 26, r 6(3) of the RSC.
The defendant has sought to expand as to relevance of the matters in question on the pleadings in his written and oral submissions. In essence, the defendant submits that Microsoft Office Communicator records are relevant to whether the defendant took reasonable steps for the purpose of s 269-35(2)(a)(i) of sch 1 of the TAA and whether the steps he took were reasonable and to the defendant's estoppel claims pleaded at pars 13 - 16 and pars 25 - 27 of the defence.
On the defendant's own case, Microsoft Office Communicator is an internal communication system used for internal communications between ATO staff. The defendant has pointed to no basis upon which, and it is difficult to discern any basis for, such records being relevant to the issues identified by the defendant.
The defendant submits that the documents sought would provide context to the plaintiff's acceptance of the steps taken by the defendant and whether the steps were reasonable in the circumstances.
What are reasonable steps for the purpose of s 269-35(2) is to be determined objectively, having regard to the circumstances of which the director, acting reasonably, knew or ought to have known: Roche v DCT [2015] WASCA 196 [29], referring to DCT v Saunig (2002) 55 NSWLR 722.
As such, I am not persuaded of the relevance of any Microsoft Office Communicator records of any internal communications between ATO staff to this issue.
As to the defendant's estoppel claims, they are based on assumptions alleged to have been made by the defendant, or representations made to him or conduct of the plaintiff directed to him on which he alleges he relied. They are all external matters, and unlikely to be evidenced in any internal communications between ATO staff. Mr Vu conceded in his oral submissions that the Microsoft Office Communicator documents are remotely relevant to the estoppel claims.
In any event, my discretion is to be exercised having regard to the case management principles in O 1 r 4A and O 1 r 4B of the RSC, which I have already outlined in some detail in relation to the application to adduce affidavit evidence. Relevantly, I am not satisfied that the discovery sought is:
1.Necessary for fairly disposing of the proceedings.
2.Relevant or sufficiently relevant to the matters in question.
3.That any forensic benefit to be derived is proportionate to the cost and delay which will flow from requiring the plaintiff to give the discovery sought, particularly where the application is made at such a late stage in the proceedings.
No explanation has been provided for the delay, and to make those orders would require adjournment of the trial.
For the reasons I have outlined the defendant's application for further and better discovery is dismissed.

Orders

In the circumstances, subject to hearing from counsel for the parties, I will make the following orders:
1.The plaintiff's application by chamber summons filed on 5 February 2021 seeking:
(a)leave to extend the time for filing and serving his affidavit and to adduce his affidavit as his evidence in chief at trial; and
(b)further and better discovery of documents referred to as Microsoft Communicator records between 2009 and 2017 as set out in the chamber summons,
is dismissed.
2.The defendant pay the plaintiffs costs of and incidental to the defendant's application to be taxed if not agreed

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
AD
Associate to Judge Russell
12 APRIL 2021