Deputy Commissioner of Taxation v Miller

This matter came before Russell DCJ in the District Court of Western Australia. The Deputy Commissioner of Taxation (the Commissioner) sought a ruling against Wayne Robert Miller for directors' penalties under the Taxation Administration Act 1953 (Cth). The Commissioner claimed payment of $361,841 together with interest and costs. The matter was listed for trial for four days commencing on 2 March 2021. On 5 February 2021, the defendant filed an application by chamber summons seeking leave to extend the time for filing and serving his affidavit evidence and to adduce his affidavit as his evidence in chief at trial. The defendant also sought further and better discovery of documents referred to as Microsoft Office Communicator records between 2009 and 2017. The plaintiff opposed the defendant's application. The defendant's application for leave to adduce his affidavit evidence at trial was dismissed. The court found that the application was made at a very late stage. The defendant had had a sufficient opportunity to present his case and had failed to avail himself of that opportunity. Allowing the application would 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. The defendant's application for further and better discovery was dismissed. The application was made at a very late stage - less than one month before the date fixed for trial. The application failed to meet the criteria for an order to be made requiring the plaintiff to give the further discovery sought. The court was not satisfied that the documents sought exist or have existed or as to the content or likely content of the documents. The affidavit identifying the relevance of the Microsoft Office Communicator records to the matters in question was insufficient for the purpose of compliance with O 26, r 6(3) of the Rules of the Supreme Court 1971 (WA).