Deputy Commissioner of Taxation v Shorthouse

[2012] QDC 207

[2012] QDC 207

DISTRICT COURT

CIVIL JURISDICTION

JUDGE R JONES

No 2929 of 2011

DEPUTY COMMISSIONER OF TAXATION	Plaintiff
and
ERIC BRETT SHORTHOUSE	Defendant

BRISBANE

..DATE 23/07/2012

..DAY 1

ORDER

HIS HONOUR: I am concerned with two applications by the applicant. First, an application pursuant to rule 868 of the Uniform Civil Procedure Rules for payment by instalment orders. Second, an application for the adjournment of the hearing of that application. For the following reasons, both applications are dismissed.

Judgment was entered against the applicant. Subsequent to that under section 255-15 of Schedule 1 to the Taxation Administration Act 1953 (Cth), he sought the respondent’s consent to pay the judgment debt by instalments. The respondent refused that request. The applicant then sought relief under rule 868.

Having regard to the cases referred to me, Mozuren v. The Deputy Commissioner of Taxation [1990] FCA 330, Deputy Commissioner of Taxation v. Zarisky [1990] 96 ALR 146 and of particular relevance, Pollock v. The Deputy Commissioner of Taxation [1991] FCA 496, I have reached the conclusion that this Court does not have the jurisdiction to usurp the discretion granted to the Deputy Commissioner of Taxation under section 255 of Schedule 1 of the Taxation Administration Act 1953 of the Commonwealth.

An application was made to the Deputy Commissioner to have the debt paid by instalments.  That was refused.  As I have said, this Court does not now have the jurisdiction to usurp the Deputy Commissioner's discretion.

The reason why the adjournment was refused is because it appears to me that on the authorities that I have been referred to the cause is a hopeless one likely to incur the debtor in only further costs.  I also accept Ms Evans' submissions that to allow this matter to continue would have negative public policy ramifications in circumstances where the cause to me appears to be a hopeless one.

I should also point out here that given the nature of the letter forwarded to the debtor's solicitors, which really set out in sufficient detail what the Deputy Commissioner's case would be today, in my view, the debtor, through its lawyers, could have, and should have, if they intended to properly deal with this application, including an application for adjournment, considered appointing counsel or, alternatively, asking the town agent firm they employed to ensure that a lawyer from that firm with sufficient tax knowledge to perhaps deal with the matters more fully should have been sent to the Court. In making those observations, I will make it abundantly clear that I mean no disrespect to Ms Healy.  It seems to me that Ms Healy was put in a very difficult situation.

That matter that I have just raised is really only a secondary consideration.  The real reasons for dismissing the application and refusing the adjournment are that the cause seems to be a hopeless one and the public policy considerations to which I have referred.

As to the question of costs, there seems to be no good reason to depart from the general rule that costs follow the event.  The costs sought are in the amount of $458 which seem to be appropriate, if not modest, in my view.  These costs are not ordered to punish the debtor in any way.  They are meant to reimburse the Deputy Commissioner for having to come today and
successfully respond to the application brought.

I reserve the right to tidy up those reasons before they are published on the Net but the substance of them will not change.

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