Deputy Commissioner of Taxation v Reslan

[2018] NSWSC 1864

Supreme Court

New South Wales

Medium Neutral Citation:	Deputy Commissioner of Taxation v Reslan [2018] NSWSC 1864
Hearing dates:	4 December 2018
Decision date:	04 December 2018
Jurisdiction:	Common Law
Before:	Adamson J
Decision:	(1) Refuse the defendant’s application for an adjournment of the proceedings.
Catchwords:	PRACTICE AND PROCEDURE – application for adjournment of proceedings to seek legal advice – application refused
Legislation Cited:	Civil Procedure Act 2005 (NSW), Pt 6, ss 56, 57, 58 Income Tax Assessment Act 1936 (Cth) Taxation Administration Act 1953 (Cth), s 14ZZM
Category:	Procedural and other rulings
Parties:	Deputy Commissioner of Taxation (Plaintiff) Samer Reslan (Defendant)
Representation:	Counsel: S Campos, solicitor (Plaintiff) Defendant in person   Solicitors: Craddock Murray Neumann Lawyers (Plaintiff)
File Number(s):	2018/76587
Publication restriction:	None

Judgment – EX TEMPORE

1. Mr Reslan, who appears on his own behalf, seeks to have the hearing of this matter adjourned in order that he can obtain legal advice to defend himself against proceedings commenced by the Deputy Commissioner of Taxation (the plaintiff) by a statement of claim filed on 8 March 2018.

2. Mr Reslan gave no prior notice of his application either to the Court or the plaintiff. He has told me from the Bar Table that he approached the Legal Aid Commission about a month ago but his eligibility for a grant of legal aid has not yet been assessed. He informs me that there is at least one other set of proceedings in which he is involved in the Family Court. He submits that it is necessary, in the interests of justice, that the matter be adjourned since the entry of judgment against him in these proceedings would be detrimental. He explains that he is not a lawyer and does not understand the legal ramifications of the case brought against him. He also submits that he has a number of objections to the assessment by the plaintiff of his tax liability and he wishes to have documentary material produced by the plaintiff in order to use it in his defence to the plaintiff’s claim.

3. In determining whether to adjourn these proceedings, I am bound by the principles set out in Part 6 of the Civil Procedure Act 2005 (NSW), including s 56(1) which provides:

“The overriding purpose of the Act and the rules of court in their application to civil proceedings is to facilitate the judgment, quick and cheap resolution of the real issues in the proceedings."

4. I am required to follow the dictates of justice as set out in s 58 of the Civil Procedure Act and to take into account the provisions of ss 56 and 57. In order to determine where the interests of justice lie, it is necessary to give a short procedural chronology of the matter.

5. As referred to, the statement of claim was filed on 8 March 2018. On 10 May 2018, Mr Reslan filed a defence in which he alleged as follows:

“1.    The defendant does not agree with any paragraph written in the claim.

2.    The defendant has provided copies of invoices and attended an interview with the ATO auditors and would like to request for these documents to be made available and to be used in evidence.

3.    The defendant wishes to challenge the decision in the Court.

4.     The defendant does not agree with any of the amounts claimed against himself [sic].”

6. The matter came before Registrar Kenna for directions on 7 June 2018. On that occasion, by consent, the directions hearing was adjourned to 21 June 2018. On 21 June 2018, the matter came before Registrar Bradford and directions were made by consent which required the plaintiff to file and serve his evidence by 5 July 2018; the defendant to file and serve his evidence by 26 July 2018; and the plaintiff to file and serve any evidence in reply by 2 August 2018. The matter was listed for further directions on 9 August 2018.

7. When the matter came before Registrar Bradford again on 9 August 2018, the directions hearing was adjourned to 6 September 2018. The Registrar directed the plaintiff to advise the defendant of the next listing.

8. When the matter came before the Court on 6 September 2018, Ms Campos appeared on behalf of the plaintiff. The defendant did not appear. However, Ms Campos contacted the defendant by telephone and obtained his consent to the following directions: that the matter be listed for hearing on 4 December 2018; the plaintiff file and serve his written submissions by 5 November 2018 and the defendant file and serve his written submissions by 19 November 2018. The plaintiff advised the defendant of those directions, in accordance with the Registrar’s order.

9. The hearing of the matter commenced before me this morning. After Ms Campos had read the affidavits on which the plaintiff relied, the defendant notified the Court and Ms Campos that he sought an adjournment of the proceedings until a date in 2019.

10. The plaintiff has prepared his case for hearing today. The Court has allocated a courtroom and a Judge for the hearing of the matter. The defendant does not wish the matter to proceed because he wants to obtain legal advice. Although the proceedings have been on foot for almost nine months, the defendant did not approach the Legal Aid Commission until about a month ago. He consented to the fixing of a hearing date and did not apply to adjourn the matter until the plaintiff had closed his case. The interests of justice require me to take into account the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their applications. The lateness of the application for adjournment tells against its grant.

11. In opposition to the application for adjournment, Ms Campos reminds me of the relevant legal principles which include that a notice of assessment is conclusive evidence of the amount for which the taxpayer referred to in the notice is liable to the Deputy Commissioner of Taxation. Whilst the defendant is entitled to object to any such assessment, Ms Campos reminds me of the provisions of s 14ZZM of the Taxation Administration Act 1953 (Cth) which provide as follows:

“The fact that a review is pending in relation to a taxation decision does not, in the meantime, interfere with, or affect, the decision and any tax, additional tax or other amount may be recovered as if no review were pending."

12. Any legal advice obtained by the defendant would be likely to be to the effect that, by reason of the provisions of the Income Tax Assessment Act 1936 (Cth), the Income Tax Assessment Act 1997 (Cth) and the Taxation Administration Act 1953 (Cth), the defendant has no defence to the statement of claim. In these circumstances, an adjournment would be likely to prove futile.

13. Accordingly, I am not persuaded that it is in the interests of justice to grant an adjournment to the defendant.

Order

14. For the reasons given above, I make the following order:

1. Refuse the defendant’s application for an adjournment of the proceedings.

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Decision last updated: 05 December 2018