Deputy Commissioner of Taxation v O'Hara

[2001] QCA 9

[2001] QCA 9

COURT OF APPEAL

McPHERSON JA
WILLIAMS JA
MULLINS J

Appeal No 7404 of 2000

DEPUTY COMMISSIONER OF TAXATION      Plaintiff/Respondent

and

DARYL O'HARA  Defendant/Appellant

BRISBANE

..DATE 01/02/2001

JUDGMENT

McPHERSON JA:  This is an application to extend time for appealing against a judgment in favour of the Deputy Commissioner of Taxation against a taxpayer. 

Wishing to recover from the defendant Mr O'Hara the sum of $296,839 claimed to be due to the Commonwealth of Australia as sales tax under the Sales Tax Assessment Act 1992, the Deputy Commissioner, who is Mr Steven Chapman, on 7 December 1999, filed a claim in the Supreme Court to recover that sum as a debt.  The statement of claim is intituled, Deputy Commissioner of Taxation (plaintiff) and Daryl T O'Hara (defendant). In other words, the plaintiff was designated in the claim by his official title and not by his personal name. That course is expressly authorised by s.10(1) of the Sales Tax Procedure Act 1934 which enables unpaid sales tax to be sued for and recovered by a Deputy Commissioner of Taxation suing in his or her official name. Section 10(1) does not of course affect to regulate the way in which such a claim may be proved, which is left to the ordinary rules of evidence and procedure.

Having delivered a statement of claim in which particulars of the debt sought to be recovered are set out, the plaintiff applied for and, on 27 July 2000, obtained summary judgment in the amount claimed.  In order to prove that claim on the application for judgment, an affidavit of debt was prepared and sworn by Mr Bradley Kenneth Bissett.  He is an Australian public servant employed as Legal Collections Officer in the office of the plaintiff at Brisbane.

In his affidavit, he deposes that he is familiar with the records of the plaintiff Deputy Commissioner relating to the liability of the defendant under the Sales Tax Assessment Act and with the attempts to recover the tax indebtedness claimed from the defendant; and also that the relevant file forms part of the ordinary books of account of the plaintiff and contains documents collated by members of the plaintiff's office staff incorporating entries made in the usual and ordinary course of the undertakings of the plaintiff.

Mr Bissett deposes that, from his examination of the file, he is able to swear to the matters set out in his affidavit which he says he believes to be true and correct.  The contents of the affidavit sufficiently establish the existence and amount of the debt and the defendant's liability for it.  Indeed, there was and is no dispute about these matters.  Two submissions that were advanced against the application for judgment and repeated on appeal are that Mr Bissett had no authority at law to make the affidavit of debt on behalf of the plaintiff and that if he had such authority, he should have made the affidavit not in his own name but in the name of Mr Steven Chapman.

Both submissions are, in my opinion, misconceived.  Witnesses giving evidence, whether orally or by affidavit, do so in their own names and not in the names of those by whose "authority" the evidence is given.  In law, no authority, statutory or otherwise, is needed for someone to give evidence at a Court hearing, and there is a duty to do so if called and sworn for that purpose.  It is for counsel acting on instructions from the solicitor to decide which persons are to be called to prove the claim of the client, in this instance the Deputy Commissioner, and it is no concern of the opposing party whether or not such instructions have in fact been validly given or received.  That is a matter between counsel, the solicitor and the client.  Needless to say, no challenge has been made to the instructions held by the plaintiff's solicitor here, who is the Australian Government Solicitor, and if there had been, there is a specific procedure which has to be followed when that course is taken.  The position is, in all respects, precisely the same if the evidence is given, as it was here, by affidavit rather than orally.

Both submissions therefore are doomed to fail.  Speaking generally, any individual may give evidence in Court about any relevant matter that is within his knowledge or means of knowledge.  He or she needs no authority to do so and may, if need be, be compelled to attend and testify under subpoena.  Mr Bissett needed no specific authorisation to give evidence about what he knew of the contents of the relevant file.  Anyone who was conversant with those contents might equally well have done so, whether or not he was at the time an officer of the Commonwealth Public Service. 

All of this, however, is subject to some qualification. It is true that on some occasions a witness may not be permitted to state, but may be prevented by law from saying, what he or she knows about a relevant matter. Legal professional privilege is an obvious example. Some statutory provisions place restrictions on what a witness may say in Court. A prominent instance is to be found in s.16 of the Income Tax Assessment Act 1936. The form of it has varied over the years but, as it was in 1951, s.16(2) prohibited an officer of the Commonwealth Public Service from divulging any information acquired by him in the performance of any duty as an officer. Section 16(3) went on to provide that an officer should not be required to divulge to any Court any matter or thing coming under his notice in the performance of his duties as officer except when necessary to do so for carrying into effect the provisions of the Act.

In Canadian Pacific Tobacco Company v. Stapelton (1952)
86 CLR 1, at 6, Chief Justice Dixon, whose decision was affirmed by the Full High Court, said that in s.16(3) the words "except in the performance of any duty as an officer" ought to receive a wide interpretation and that the word "duty" in that context (which, his Honour said, would be better represented by the word "function"):

"governs all that is incidental to the carrying out of what is commonly called the duties of an officer's employment; that is to say, the functions and proper actions which his employment authorises."

His Honour went on to add (86 CLR 1 at 7) that, in a case of the description before him, it included "the making of an affidavit in this Court in a proceeding for the ultimate obtaining of revenue even if the word 'divulge' is used in a sense which includes the giving of evidence."

In the case of sales tax the comparable provisions of the Sales Tax Procedure Act 1934 are s.4A(3)(b) and s.4A(4) which contain the exception found in section 16(3) of the Income Tax Assessment Act 1936 in substantially the same form as it was in 1951.  The provisions are not identical but they are sufficiently similar for the decision in Canadian Pacific Tobacco to apply here.

In my opinion, making the affidavit of debt in the present case was plainly incidental to carrying out the duties of
Mr Bissett's employment and so was a function that was implicitly authorised by his employment.  He describes himself as the Legal Collections Officer in the Small Business Receivables Management Section of the plaintiff's office and as having, by virtue of his position, access to and familiarity with the records of the defendant as taxpayer.

The proceeding in the action now before us was a proceeding for obtaining revenue under the Act and Mr Bissett made the affidavit for that purpose.  It was within his implied authority to do so.  For these reasons I do not think it is or would be necessary to scrutinise any express authorisation given or conferred, or purported to be conferred, on him, including any power of making affidavits, or to speculate about whether any such authorisation could or could not be delegated to him by or from the plaintiff or anyone in the service hierarchy above him.

In my opinion, it was, quite apart from any such authority, something that was incidental to the functions he was performing as Legal Collections Officer in the office of the plaintiff Deputy Commissioner and he was competent to make that affidavit as part of those functions. 

It follows, in my opinion, that the appeal in this case is doomed to failure.  Although this applicant for an extension of time requires only an extension of a day or so in order to proceed with the appeal in the ordinary way, it is not a case where granting such an extension would serve any useful purpose.  I do not think that there is any point in our giving leave in this case because it cannot lead to a different result from that arrived at by the Judge in the Court below.  The judgment was plainly correct and the appeal cannot succeed.

The application to extend time for appealing should be dismissed with costs.

WILLIAMS JA:  I agree.

MULLINS J:  I agree.

McPHERSON JA:  That is the order that we will make.

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