Deputy Commissioner of Taxation v Norris

[2007] QCA 331

COURT OF APPEAL

JERRARD JA
KEANE JA
DOUGLAS J

Appeal No 6416 of 2007

DEPUTY COMMISSIONER OF TAXATION	Respondent/Plaintiff
and
MICHAEL JOHN NORRIS	Applicant/Defendant

BRISBANE

..DATE 10/10/2007

JUDGMENT

MR C D MOORE (of Aejis Legal) for the applicant

MS C J CONWAY (instructed by Legal Services Branch, ATO) for the respondent

JERRARD JA:  In this matter the Court has heard an application for an extension of time within which Michael John Norris asks for what would be leave to appeal against an order of this Court made on 21 June 2007 dismissing his application to set aside a default judgment of this Court entered on 4 May 2006.
Merely reciting those dates will demonstrate that there has been a degree of time which has elapsed since the entry of that default judgment and the events which have occurred since then have included an earlier and unsuccessful application dismissed by this Court or dismissed in the trial division of this Court to set aside that default judgment.  There was no appeal from that particular order of this Court in its trial division and instead Mr Norris filed a second application to set aside the default judgment approximately one year after the first one was dismissed.  In between an attempt has been made to have him bankrupted and he has challenged those proceedings in the Federal Magistrates Court.  In that Court the judgment remains undelivered although the proceedings to have the bankruptcy notice set aside has apparently been heard on the merits.

He asks for an adjournment of his application for an extension of time pointing to what he contends is some relevant evidence - possibly fresh, possibly not, now available to him and possibly not available before - which implies that perhaps the applicant or the respondent I should say, Deputy Commissioner of Taxation, has made it difficult for Mr Norris to meet the taxation obligations he is alleged to have had, and which he may have been able to meet had the Commissioner allegedly acted differently.  I do not propose to say anything more about the merits of his material which may be sustained on a further hearing; or may not be. 

It is not challenged by his newly appointed solicitors that any adjournment this morning should be on terms as to payment of costs, and accordingly the Court orders that the application for an extension of time within which to appeal be adjourned to a date to be fixed on the condition that the applicant, Michael John Norris, pay the costs of the respondent, Deputy Commissioner of Taxation, thrown away by the respondent's attendance and preparation for today, fixed by the order of this Court at $8,000, such costs to be paid on or before 31 October 2007, and in the event that condition is not satisfied, the application for an extension of time will stand automatically dismissed without further order of the Court.

MS CONWAY:  Your Honour, if we could have one further order that the appellant file his proposed - if the payment is made on 31 October that he file his amended application for leave to appeal by 9 November 2007.

JERRARD JA:  By when?

MS CONWAY:  9 November 2007.

JERRARD JA:  Any objection, Mr Moore?

MR MOORE:  No, your Honour.  That's acceptable.

JERRARD JA:  In the event that the condition is satisfied the appellant is to file any amended notice of appeal by no later than 9 November 2007.

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