Fenato v Chief Commissioner of State Revenue

[2010] NSWCA 80

Reported Decision: 78 NSWLR 20

New South Wales

Court of Appeal

CITATION:	Fenato v Chief Commissioner of State Revenue [2010] NSWCA 80
HEARING DATE(S):	22 March 2010
JUDGMENT DATE:	15 April 2010
JUDGMENT OF:	Beazley JA; Macfarlan JA; Gzell J
DECISION:	1. Leave to appeal is granted. 2. Appeal is allowed. 3. Decision of Delaney DCJ is set aside. 4. Default judgment entered on 26 November 2008 is set aside. 5. Applicants granted leave to file a defence within 28 days. 6. Respondent to pay the Applicants' costs of the appeal and of the proceedings in the District Court.
CATCHWORDS:	TAXES AND DUTIES - Land Tax - summary disposal - default judgment - setting aside default judgment - defective statement of claim - where moneys sought for unpaid land tax and interest under the Taxation Administration Act 1996 - whether pleadings failed to summarise material facts constituting cause of action - where service of the notices of assessment or payment due date not pleaded - whether deficiencies in pleadings overcome by recourse to r 14.11 of the Uniform Civil Procedure Rules 2005 - discussion of the balancing task involved in exercising discretion under r 36.15(1) and 36.16(2)(a) - power of District Court to set aside default judgment under the Rules
LEGISLATION CITED:	Taxation Administration Act 1996 Uniform Civil Procedure Rules 2005 Land Tax Management Act 1956 Interpretation Act 1987 Supreme Court Rules 1970
CASES CITED:	Shepherd v Hills (1855) 11 Exch 55; 156 ER 743 Lloyd v Burrup (1868) LR 4 Exch 63 Richardson v Willis (1872) LR 8 Exch 69 Booth v Trail (1883) 12 QBD 8 May v Chidley [1894] 1 QB 451 Roberts v Plant [1895] 1 QB 597 Lewis v Nortex Pty Ltd (in liq); Lamru Pty Ltd v Kation Pty Ltd [2005] NSWSC 482 Tricontinental Corporation Ltd v HDFI Ltd (1990) 21 NSWLR 689 Cameron v Cole (1943-1944) 68 CLR 571 Taylor v Taylor (1978-1979) 143 CLR 1 Hoskins v Van Den-Braak (1998) 43 NSWLR 290 DJL v The Central Authority [2000] HCA 17; (2000) 201 CLR 226 AVS Australian Venue Security Services Pty Ltd v Criminale [2006] NSWCA 368 Grassby v The Queen (1989) 168 CLR 1 Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129 Pelechowski v The Registrar Court of Appeal [1999] HCA 19; (1999) 198 CLR 435 Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170 Deputy Federal Commissioner of Taxation v Thai 93 ATC 4530 Deputy Federal Commissioner of Taxation v Swain 93 ATC 4886
TEXTS CITED:	Ritchie’s Uniform Civil Procedure NSW Carter and Harland, Contract Law in Australia, 4th ed, Butterworths, Australia, 2002
PARTIES:	John Fenato (First Applicant) Julian Fenato (Second Applicant) Robert Fenato (Third Applicant) Peter Fenato (Fourth Applicant) Chief Commissioner of State Revenue (Respondent)
FILE NUMBER(S):	CA 2009/00298281
COUNSEL:	I Young (Applicants) CD Wood (Respondent)
SOLICITORS:	VL Macri Lawyers (Applicants) Matthews Folbigg Solicitors (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	168/2008
LOWER COURT JUDICIAL OFFICER:	Delaney DCJ

CA 2009/00298281

BEAZLEY JA
MACFARLAN JA
GZELL J

THURSDAY 15 APRIL 2010

JOHN FENATO & ORS v CHIEF COMMISSIONER OF STATE REVENUE

Judgment

1 BEAZLEY JA: I agree with Gzell J.

2 MACFARLAN JA: I agree with Gzell J.

3 GZELL J: This is an application for leave to appeal from the decision of Delaney DCJ refusing the application of the applicants, John Fenato, Julian Fenato, Robert Fenato and Peter Fenato to set aside a default judgment in favour of the respondent, the Chief Commissioner of State Revenue, that was entered in the absence of the public on 26 November 2008. The court heard the application as if on appeal.

4 The default judgment was obtained on a statement of claim in the District Court that under a heading “Relief Claimed” sought $150,076.98 in respect of unpaid land tax together with interest under the Taxation Administration Act 1996 of $35,602.49 the details of which were set out in a schedule to the pleading. The Chief Commissioner also claimed amounts for fees and costs leading to a total claim of $186,446.67.

5 The “Schedule of Interest” calculated interest at varying rates on $71,467.00 for the period 16 August 2005 to 4 December 2007. There was then a calculation of interest on an amount of $122,406.30 for the period 5 December 2007 to 25 February 2008. Finally there was a calculation of interest on $145,039.60 for the period 26 February 2008 to 25 July 2008, the date of the statement of claim. The interest totalled the amount claimed of $35,602.49.

6 Under the heading “Pleading and Particulars” the following appeared with the omission of a table to par 2 and a table to par 3:

“The Plaintiff relies on the following facts and assertions:
1 The plaintiff was appointed pursuant to the provisions of the Taxation Administration Act 1996 and is entitled to recover and take legal proceedings for the recovery of New South Wales taxes and stamp duty.
2 At all material times the Defendant was the registered owner of land described as follows:
….
3 The Plaintiff issued Assessment Notice/s to the Defendant for land tax in respect of the property. Particulars of the land tax payable are as follows:
….

4 Since the issue of the assessment(s), payments have been made or credits have accrued to the amount of $0.00 , which have reduced the amount of the assessment/s to $150,076.98.
5 The Defendant has failed to pay the land tax, and the Plaintiff claims the sum of $150,076.98 together with interest in the sum of $35,602.49 calculated to 25/07/2008.”

7 The table to par 2 identified two lots of land at Rossmore. The table to par 3 identified an assessment date of 6 July 2005 with respect to the 2001 to 2005 land tax years, an assessment date of 25 October 2007 with respect to the 2006 and 2007 land tax years and an assessment date of 16 January 2008 with respect to the 2008 land tax year. It identified original tax for those land tax years totalling $145,039.60. No penalty tax was raised. Late lodgement interest totalled $5,037.38 resulting in the total land tax claimed of $150,076.98.

8 In support of the motion to set aside the default judgment the applicants relied upon an affidavit of Vince Macri, their solicitor. He deposed that the applicants disputed the amount of land tax asserting that the Chief Commissioner had not applied the principal place of residence exemption to one of the lots in the 2001 to 2006 land tax years. If the exemption applied, he argued that the land tax would be $82,804.60 which sum had been tendered to the Chief Commissioner. He said formal objection to the assessments had been drafted and was being settled. He said that a defence was not filed in time due to pressure of work and restructuring of his office. He swore that the Chief Commissioner had issued and served a bankruptcy notice on the applicants.

9 Neither the notice of objection nor a draft defence was in evidence and counsel for the applicants informed Delaney DCJ that he did not know whether the applicants had a defence on the merits.

10 The Chief Commissioner relied upon an affidavit of Mark Dinaro. He annexed three notices of assessment. They had the issue dates set out in the table to par 3 of the statement of claim. The amounts claimed, however, differed from those set out in the Schedule of Interest. But nothing turns on that. The matter was not raised in the court nor in the court below and the amounts upon which interest was claimed in the Schedule of Interest were lower.

11 The first notice of assessment was in an amount of $76,504.35 and called for payment by 15 August 2005. The second was for $132,950.80 and specified a due date of 4 December 2007. The third had a total amount of $168,047.90 with a due date of 25 February 2008.

12 On the applicants’ motion that the default judgment be set aside and they be let in to defend, Delaney DCJ noted their submission that the Uniform Civil Procedure Rules 2005, Pt 14 r 14.7 requiring a pleading to contain only a summary of the material facts on which a party relied and not the evidence by which those facts were to be proved, was not satisfied because material facts necessary to establish a liability for unpaid land tax and interest had not been summarised in the statement of claim. His Honour noted the submission that what should have been pleaded was the due making or issue of an assessment; service of that notice of assessment on the taxpayer; the establishment of a due date on which the tax was due and payable; and that the taxpayer had failed to pay the tax on that due date.

13 Delaney DCJ recorded the applicants’ submission that the default judgment was irregularly entered and should be set aside. That was a reference to Pt 36 r 36.15(1) of the Rules. It provided that a judgment or order of the court in any proceedings might, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered or the order was made, irregularly, illegally or against good faith.

14 Delaney DCJ took the view that the statement of claim set out clearly and unambiguously that the material facts and the pleading complied with the Pt 14 r 14.7 of the Rules. His Honour said:

“25 The purpose of pleadings is to sufficiently alert the defendant to the basis of the claim made by the plaintiff. In my opinion, the contents of the statement of claim filed by Chief Commissioner set out clearly and concisely the nature of the claim for recovery of tax levied pursuant to the relevant legislation. It was not suggested that the contents of the statement of claim were incorrect, as stated, although there was allegedly a dispute about an assessment which was not the subject of either a draft notice of grounds of defence or any evidence from the applicant.
26 Under Uniform Civil Procedure Rules 14.28 a court may strike out a pleading if it discloses no reasonable cause of action or causes prejudice, embarrassment or delay. In my opinion, the pleadings in the statement of claim in this case do not require the court to dismiss the statement of claim. I reject the argument by the applicants that the statement of claim did not contain sufficient information to enable either the plaintiff’s claim and the question of interest to be determined.
27 In my opinion, the statement of claim sets out clearly that the notices were raised, the penalty notices were sent and the amounts claimed in paragraph 3 are clearly and unambiguously referred to.
28 In my opinion, the statement of claim filed in this case complies with Rule 14.7 and the application by the judgment debtors to set aside the default judgment entered on 26 November 2008 is refused.”

15 I would grant leave to appeal. The pleading is clearly a pro forma statement of claim. If there is a problem with the pleading it has ramifications with respect to other proceedings by the Chief Commissioner for recovery of land tax.

16 The Land Tax Management Act 1956, s 7 provides that land tax at such rates as may be fixed is to be levied and paid on the taxable value of all land situated in New South Wales which is owned by taxpayers other than land exempted under the Act. Section 8 provides that land tax shall be charged on land as owned at midnight on the thirty-first day of December immediately preceding the year for which the land tax is levied. A year is the period of twelve months commencing on the first day of January. That accords with the definition of land tax year in s 3 of the Act.

17 Section 14(1) of the Management Act provided that the Chief Commissioner should from returns and any other information in his possession, and whether any return had been furnished or not, cause an assessment to be made of the taxable value of the land owned by any taxpayer and of the land tax payable thereon.

18 There is no provision in the Management Act requiring service of a notice of assessment. But the Administration Act applies with respect to assessments under the Management Act for the following reasons.

19 Section 8(1) of the Administration Act, which is in Pt 3, provides that the Chief Commissioner may make an assessment of the tax liability of a taxpayer. The term assessment is defined in s 3(1) as an assessment made under Pt 3 of the tax liability of a person under a taxation law. Taxation laws are defined in s 4 to include the Management Act.

20 Thus the eight assessments made by the Chief Commissioner in this case under s 14(1) of the Management Act were also assessments to which Pt 3 of the Administration Act applied.

21 Section 14(1) in Pt 3 of the Administration Act provides that the Chief Commissioner may issue a notice of assessment showing the amount of the assessment. The provision is permissive in form and contrasts with the Chief Commissioner’s mandatory obligation to issue a notice of assessment upon a request by a taxpayer under s 14(2); with respect to a reassessment under s 14(3); or with respect to the withdrawal of an assessment under s 14(4).

22 Thus the Chief Commissioner may issue a notice of an assessment made by him under s 14(1) of the Management Act.

23 Unless the Chief Commissioner serves notice of an assessment the assessed land tax will not become due and payable. Section 39 of the Management Act was in the following terms:

“(1) Land tax payable by a taxpayer is due and payable as required by the relevant notice of assessment served on the taxpayer concerned.

(2) (Repealed)

(3) No payment of land tax is required earlier than 30 days after service of the notice of assessment on the taxpayer.

(4), (5) (Repealed).”

24 Land tax, then, becomes due and payable, if a notice of assessment is served on a taxpayer, on the date specified in that notice provided it is not earlier than 30 days after service of the notice of assessment.

25 Tax that is payable, is payable to the Chief Commissioner under s 43 of the Administration Act and if not paid to the Chief Commissioner as required, the Chief Commissioner may recover the unpaid amount as a debt to the Chief Commissioner under s 44 of the Administration Act.

26 One of the elements that must be established before the Chief Commissioner may recover an unpaid amount of land tax is service of a notice of assessment upon the taxpayer. That is so because no payment of land tax is required within 30 days after service under s 39(3) of the Management Act.

27 Section 116(1) of the Administration Act provides for modes of service of a document authorised or required to be served on a person by the Chief Commissioner for the purposes of a taxation law. Since the Management Act is a taxation law, that provision applied to the three notices of assessment in this case.

28 The second and third notices of assessment in this case were addressed to a post box. There is no suggestion that the first notice of assessment was served otherwise than by post. One of the means of service specified by the Administration Act is by post addressed to the person at the last address of the person known to the Chief Commissioner in s 116(1)(c).

29 There is a presumption about effecting service by post in the Interpretation Act 1987, s 76(1)(b). It provides that if an Act or instrument authorises or requires any document to be served by post, service of the document in Australia is, unless evidence sufficient to raise a doubt is adduced to the contrary, taken to have been effected on the fourth working day after the letter was posted. Section 76(2) defines a working day to mean a day that is not a Saturday or Sunday or a public holiday or a bank holiday in the place to which the letter was addressed.

30 In each notice of assessment in this case, the Chief Commissioner required the land tax to become due and payable for the purposes of s 39(1) of the Management Act on a date that was 40 days after the issue date specified in the notice.

31 If the notices of assessment were posted on the day Mr Dinaro said they issued, then in the 10 day period after the expiration of the 30 days referred to in s 39(3) of the Management Act in relation to the three notice of assessment in this case, there could not have been sufficient non-working days to postpone the date of deemed service beyond the due date specified in each notice.

32 If the notices of assessment were posted on their issue date, the due dates specified for payment would have satisfied the requirements in s 39 of the Management Act. But a person reading the statement of claim would not know this because the pleading did not identify the due dates. And the assumption as to the date of postage may not have been correct. There was no evidence when posting occurred. If they were not posted until seven days after their issue date, the requirements in s 39 of the Management Act would not have been satisfied.

33 The due date for payment marks the commencement of the Chief Commissioner’s entitlement to interest. Section 21(1) of the Administration Act was in the following terms:

“If a tax default occurs, the taxpayer is liable to pay interest on the amount of tax unpaid calculated on a daily basis from the end of the last day for payment until the day it is paid at the interest rate from time to time applying under this Division.”

34 A tax default is defined in s 3 of the Administration Act as a failure by a taxpayer to pay, in accordance with a taxation law, the whole or part of tax that the taxpayer is liable to pay.

35 The Chief Commissioner’s cause of action for which judgment was obtained was for money due under a statute. It has long been established that where an Act imposes an obligation upon a person to pay a sum of money to another person, the amount can be recovered in an action for a debt if no other remedy is provided by the Act and there is no provision to the contrary in it (Shepherd v Hills (1855) 11 Exch 55 (156 ER 743); Lloyd v Burrup (1868) LR 4 Exch 63; Richardson v Willis (1872) LR 8 Exch 69; Booth v Trail (1883) 12 QBD 8 at 10).

36 The Chief Commissioner’s claim did not fall within those claims that can be the subject of a pleading in short form under Pt 14 r 14.12 of the Rules.

37 Counsel for the applicants argued that in order to establish his entitlement to the debt the Chief Commissioner had to establish and, consequently, had to plead as material facts the four matters submitted to Delaney DCJ and before this court.

38 The first submission upon which the Chief Commissioner relied was that there was no pleading error. It was submitted that the statement of claim clearly set out the nature of the tax the applicants owed.

39 In my view the making of an assessment is an essential element of the cause of action for money due under the Administration Act as it arises in this case. Section 14(1) of the Management Act required the Chief Commissioner to do so and land tax does not become due and payable until a notice of assessment is served and that requires the due making of an assessment.

40 Proof of service of the notice of assessment is an essential element because land tax is not due and payable until the date specified for payment in a notice of assessment which date must not be within 30 days after service in terms of s 39(3) of the Management Act.

41 The establishment of a due date on which land tax becomes due and payable is an essential element because land tax does not become due and payable before the date so specified in a notice of assessment under s 39(1) of the Management Act.

42 It is also an essential element in a claim for interest, which runs from the end of the last day for payment under s 21(1) of the Administration Act and that is the date specified in the notice of assessment under s 39(1) of the Management Act.

43 Failure to pay the tax on the due date is an essential element of the cause of action because under s 44 of the Administration Act the Chief Commissioner cannot recover unpaid tax unless there has been a failure to pay it as required.

44 The statement of claim failed to allege service of the notices of assessment or the due date for payment in those notices.

45 It was submitted that the pleading was sufficient because par 3 of the statement of claim made the factual allegation that eight assessment notices were issued to the applicants and they had failed to pay the land tax.

46 But nothing was said in the pleading about when the notices were served from which the 30 day period in s 39(3) of the Management Act could be calculated. And it did not say anything about the due date for payment specified in the notices of assessment when the land tax would become due and payable and if not paid by that date interest would start to accrue from the following day.

47 It was submitted that one could assume that the due date specified in the first notice of assessment was 15 August 2005 because in the Schedule of Interest the calculation commences from the next day and one should assume that interest was calculated in accordance with s 21(1) of the Administration Act from the earliest possible date.

48 By the same reasoning it was submitted that it should be assumed that the due date specified in the second notice of assessment was 4 December 2007 and 25 February 2008 was the due date specified in the third notice of assessment.

49 But the assumption might be wrong. Further, a material fact is not pleaded if it must be assumed. What is required is a summary of the material facts and an assumption is not a summary of any fact.

50 The Chief Commissioner’s first submission that there was no pleading error fails.

51 Part 14 r 14.11 of the Rules was in the following terms:

“If it is a condition precedent necessary for a party’s case in any pleading that:
(a) a thing has been done, or
(b) an event has happened, or
(c) a state of affairs exists, or has existed at some time or times, or
(d) the party is ready and willing, or was at all material times ready and willing, to perform an obligation,
a statement to the effect that the condition has been satisfied is taken to be implied in the party’s pleading.”

52 The Chief Commissioner’s second submission was that the fact of service and the fact of specification of a due date for payment of the land tax were conditions precedent and their satisfaction is taken to have been implied in the statement of claim. Counsel for the Chief Commissioner conceded that his argument, taken to its logical conclusion, would require no more than a pleading that land tax was owed.

53 In Ritchie’s Uniform Civil Procedure NSW at [14.11.5] it is said:

“However, and despite the terms of the rule, where the relevant allegation is an essential ingredient of the cause of action (such as the making of a demand in detinue, or notice of dishonour in the case of a bill of exchange), it must still be pleaded.”

54 May v Chidley [1894] 1 QB 451 was cited in support. It was an action on a dishonoured cheque. The pleading alleged that notice of dishonour had been given to the drawer but the affidavit verifying contained no allegation to that effect. The primary judge thought there was sufficient verification and gave the plaintiff leave to enter final judgment. That judgment was upheld on appeal on the basis that while the pleading would have been defective if the allegation were omitted, verification of the cause of action in the affidavit could be made in general terms.

55 Roberts v Plant [1895] 1 QB 597 was also cited. It, too, was an action upon a dishonoured cheque. Although the pleading originally contained no statement that notice of dishonour had been given to the drawer, the pleading was amended without leave to include that allegation. An order was subsequently made giving leave to enter judgment. It was held that, there being a good pleading at the time leave to enter judgment was given, that leave was correct.

56 In Lewis v Nortex Pty Ltd (in liq);Lamru Pty Ltd v Kation Pty Ltd [2005] NSWSC 482 at [14], Hamilton J held that a plaintiff must in its pleading show its entitlement to bring the action and the forerunner of Pt 14 r 14.11 of the Rules in Supreme Court Rules 1970, Pt 15 r 11 did not operate to dispense with the pleading of a necessary ingredient of a cause of action.

57 I respectfully adopt that line of reasoning. In a sense each element of a cause of action possesses an aspect that a condition precedent has: without their establishment, there is no cause of action. But it cannot be the case that each of the material facts grounding a cause of action is a condition precedent and need not be pleaded. That would defeat the purpose of pleadings to alert the other party to the case to be met because it would not require a summary of the material facts establishing the cause of action.

58 The answer must be that for the purpose of Pt 14 r 14.11 of the Rules there is a distinction between a condition precedent and an essential element of a cause of action or that essential elements of a cause of action if also conditions precedent are not within the scope of the rule and must be pleaded.

59 The nature of a condition precedent in contract law was described by Samuels JA in Tricontinental Corporation Ltd v HDFI Ltd (1990) 21 NSWLR 689 at 703 as a stipulation in an agreement upon the fulfilment of which the existence of a contract, or of a principal obligation under an existing contract, is made contingent. The stipulation may involve the occurrence of an event that is independent of both parties, or it may require a unilateral act.

60 Carter and Harland, Contract Law in Australia, 4^th ed, Butterworths, Australia, 2002 at [741] describe a condition precedent in contract law thus:

“Where the occurrence of an event is a condition precedent , the existence of the contract, or the obligation of one party (or both parties) to perform is subject to the prior occurrence of a specified event. Whether the failure of the event to occur means that there is no contract, or simply no obligation to perform, depends on the intention of the parties.”

61 The elements of a cause of action, on the other hand, are not restricted to a triggering event. In contract law they consist of offer and acceptance, breach and damage. The condition precedent in contract law triggers the cause of action but is not an ingredient of it.

62 There is no reason why such a distinction should not apply to the money due under a statute cause of action.

63 The service of the notices of assessment and the specification of the due date for payment in the notices of assessment were essential elements of the cause of action and were not pleaded in the statement of claim. That failure is not overcome by recourse to Pt 14 r 14.11 of the Rules. The Chief Commissioner’s second submission fails.

64 It was argued in the court below that these failures gave rise to an entitlement to have the default judgment set aside ex debito justitiae as part of the inherent jurisdiction of the District Court. The Chief Commissioner’s third submission was that no such power existed.

65 In Cameron v Cole (1943-1944) 68 CLR 571 at 589, Rich J observed:

“It is a fundamental principle of natural justice, applicable to all courts whether superior or inferior, that a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case. If this principle be not observed, the person affected is entitled, ex debito justitiae , to have any determination which affects him set aside; and a court which finds that it has been led to purport to determine a matter in which there has been a failure to observe the principle has inherent jurisdiction to set its determination aside.”

66 In Taylor v Taylor (1978-1979) 143 CLR 1 at 8, Gibbs J said it was clear that the majority of the court in Cameron accepted that a court, whether superior or inferior, has inherent power to set aside an order made against a person who did not have a reasonable opportunity to appear and present his case. His Honour went on to say it seemed immaterial in that case whether the Family Court was regarded as a superior court or an inferior court. At 16, Mason J said that although the Family Court was a court created by statute it nonetheless possessed an inherent jurisdiction to set aside a judgment obtained by default.

67 Cameron and Taylor were followed in this court in Hoskins v Van Den-Braak (1998) 43 NSWLR 290 at 294 when it was held that a local court had power to set aside a judgment ex debito justitiae.

68 More recently a different view has been stated. In DJL v The Central Authority [2000] HCA 17; (2000) 201 CLR 226 at 240-241 [25] the High Court said:

“The Family Court is thus not a common law court as were the three common law courts at Westminster. Accordingly, it is "unable to draw upon the well of undefined powers" which were available to those courts as part of their "inherent jurisdiction". The Family Court is a statutory court, being a federal court created by the Parliament within the meaning of s 71 of the Constitution. A court exercising jurisdiction or powers conferred by statute "has powers expressly or by implication conferred by the legislation which governs it" and "[t]his is a matter of statutory construction"; it also has "in addition such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred". It would be inaccurate to use the term "inherent jurisdiction" here and the term should be avoided as an identification of the incidental and necessary power of a statutory court.”

69 In AVS Australian Venue Security Services Pty Ltd v Criminale [2006] NSWCA 368, Basten JA expressed the view that principles governing the exercise of judicial power are generally to be found in the Act and rules which govern a statutory court; that the Act will usually provide a more precise content to the concept of providing a reasonable opportunity of appearing and presenting a case and may govern the situation; and primary attention should be given to these rules rather than some more general concept derived from the general law.

70 His Honour does not, however, reject the proposition that a statutory court has powers by implication conferred upon it (see at [30]-[31]), a proposition that is discussed in Grassby v The Queen (1989) 168 CLR 1 at 16-17; Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129 at 132-133 and Pelechowski v The Registrar Court of Appeal [1999] HCA 19; (1999) 198 CLR 435 at [47] – [51].

71 The other members of the court found it unnecessary to decide this question and I adopt a similar approach. I do not decide the Chief Commissioner’s third submission that the District Court lacked power to set aside the default judgment as of right.

72 It is sufficient in this case to base my judgment on the power of the District Court under the Rules.

73 The Chief Commissioner’s fourth submission was that there was no error in Delaney DCJ’s exercise of discretion.

74 The application before his Honour was to set aside the default judgment and let the applicants in to defend. It was put to his Honour that the power to be exercised was that in Pt 36, r 36.15(1) of the Rules:

“A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith.”

75 The failure to plead service of the notices of assessment and the failure to specify the due date for payment constituted an irregularity that brought the matter within the ambit of the above rule.

76 The matter was also with the ambit of Pt 36 r 36.16(2)(a) of the Rules which was in the following terms:

“The court may set aside or vary a judgment or order after it has been entered if:
(a) it is a default judgment (other than a default judgment given in open court).”

77 But that basis for setting aside the default judgment was not argued in the court below.

78 Delaney DCJ exercised a procedural discretion in refusing to set aside the default judgment. As the High Court said in Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170 at 177 appellate courts exercise particular caution in reviewing decisions pertaining to practice and procedure.

79 It was submitted that the applicants were served with a statement of claim that clearly set out the nature of the tax that they owed for some time. They chose not to respond to it within the prescribed period. The application to set aside the default judgment was only brought after a bankruptcy notice had been served.

80 Delaney DCJ took into account the absence of a draft defence and the lack of any evidence from the applicants. His Honour also took into account the fact that Mr Macri did not give any evidence that the applicants had a good defence on the merits.

81 While these matters were relevant to his Honour’s exercise of discretion the failure to plead the cause of action for moneys due under a statute by reason of the omission of essential elements was a matter that his Honour failed adequately to take into account.

82 His Honour noted the submission of the applicants that it was not sufficient for the Chief Commissioner to have pleaded merely that notices of assessment in an aggregate amount were issued, that no payments had been received, and that the land tax had not been paid. His Honour also noted the submission of the applicants that because the due dates were not identified properly no basis existed to calculate any claim for interest.

83 His Honour said of these submissions: “I reject the argument by the applicants that the statement of claim did not contain sufficient information to enable either the plaintiff’s claim and the question of interest to be determined”. But his Honour failed to give any reasons for that rejection.

84 A party is entitled to have the material facts constituting a cause of action summarised in the pleading so that the party knows the case it is to answer. The statement of claim in this case failed that objective and that failure, in my view, constituted sufficient cause for the purpose of Pt 36, r 36.15(1) of the Rules and outweighed the matters on which his Honour based his exercise of the discretion.

85 The same reasoning applies to the discretion under Pt 36 r 36.16(2)(a) of the Rules if that was the appropriate basis for decision.

86 The Chief Commissioner’s fourth submission fails.

87 In my view, Delaney DCJ’s exercise of discretion was vitiated and it is for this Court to re-exercise it. For the reasons set out above I am of the view that this Court should exercise the discretion under Pt 36.16(2)(a) or, in the alternative, under Pt 36 r 36.15(1) and set aside the default judgment.

88 The Chief Commissioner’s fifth submission was that Deputy Federal Commissioner of Taxation v Thai 93 ATC 4530 and Deputy Federal Commissioner of Taxation v Swain 93 ATC 4886 were distinguishable and wrongly decided.

89 On the view I have taken of this matter it is unnecessary for me to decide this issue. The cases were distinguished because they dealt with unpaid income tax rather than unpaid land tax. That may be a distinction without a difference. The cause of action was the same and the legislative regimes were similar. It was submitted that they were wrongly decided because in Thai at 4533 Malpass M said where a judgment has been obtained irregularly the defendant was entitled ex debito justitiae to have it set aside and in Swain at 4887 Abadee J said he was satisfied that the reasons in Thai were correct. I have refrained from deciding whether the District Court has inherent jurisdiction to set aside a judgment as of right upon which this submission is based and I refrain from determining the Chief Commissioner’s fifth submission.

90 I propose the following orders:

1. Leave to appeal is granted.
2. Appeal is allowed.
3. Decision of Delaney DCJ is set aside.
4. Default judgment entered on 26 November 2008 is set aside.
5. Applicants granted leave to file a defence within 28 days.
6. Respondent to pay the Applicants’ costs of the appeal and of the proceedings in the District Court.