| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : HORNER -v- THE DEPUTY COMMISSIONER OF TAXATION FOR THE COMMONWEALTH OF AUSTRALIA [2003] WADC 60 CORAM : FENBURY DCJ HEARD : 24 FEBRUARY 2003 DELIVERED : 18 MARCH 2003 FILE NO/S : CIV 733 of 2002 BETWEEN : RHONDA JOY HORNER Appellant
AND
THE DEPUTY COMMISSIONER OF TAXATION FOR THE COMMONWEALTH OF AUSTRALIA
Respondent
Catchwords: Appeal from Deputy Registrar - Summary judgment - Evidence - Proof of debt - Proof facilitated by legislation - Evidentiary certificate - Signature includes stamped facsimile
Legislation: Income Tax Assessment Act 1936, s 176, s 177, s 208
Taxation Administration Act 1953, Sch 1 Pt IV, s 255(45)
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Result:
Appeal dismissed Representation:
Counsel:
Appellant : Mr D E Eley
Respondent : Mr A A Jenshel
Solicitors:
Appellant : Eley Palmer
Respondent : Australian Government Solicitor
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
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1 FENBURY DCJ: This is an appeal from a decision of the Deputy Registrar granting the respondent's (plaintiff's) application for summary judgment against the appellant (defendant). This is a re-hearing of the matter.
2 The respondent is a Deputy Commissioner of Taxation for the Commonwealth of Australia. In a statement of claim the respondent pleads a number of facts that form the basis of a claim against the appellant for non-payment of Income Tax and Provisional Tax together with interest. 3 The appellant apparently drafted her own defence (or it was drafted by some other non-qualified person). The defence is, amongst other things, deficient. It fails to deny specifically a number of important allegations in the statement of claim, for example, in par 10, where it is pleaded that the appellant is indebted to the respondent in respect of Income Tax, Provisional Tax and the like. However I shall put the pleading points aside, given that the appellant is now represented and counsel advised the Court that an adjournment to seek an amendment of the pleadings would be sought if much turned on them in this hearing. In my view the matter can be decided on other bases. 4 The respondent relies upon the affidavit of Brad Lambert sworn 4 July 2002 in support of the application for summary judgment. The affidavit complies with the requirements of O 14, r 2 of the Supreme Court Rules. 5 In par 3 certified copies of two Notices of Assessment and a Provision Tax Notice are annexed. 6 In par 4 it is asserted that the appellant is indebted to the Commissioner of Taxation in a sum, being the total of the notices together with interest calculated to 28 June 2002. 7 In par 7 reliance is placed upon a certificate under s 255-45 of Sch 1 of the Tax Administration Act 1953. The certificate is Annexure BL-4. Section 255(45) is in Pt IV of Sch 1 and deals with "collection and recovery of tax related liabilities and other amounts". The section provides for an "evidentiary certificate" and it relevantly states: "(1) A certificate – (a) stating one or more of the matters covered by subsection (2) and
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8 Annexure BL-4 to the abovementioned affidavit, being an evidentiary certificate made pursuant to the abovementioned section, asserts that the relevant notices were served on the appellant on specified dates and then in par 3 it states: "The sum of $74,517.78 is at 28 June 2002 a debt due and payable by Rhonda Joy Horner to the Commonwealth of Australia." 9 The certificate purports to be signed by Erin Holland on 4 July 2002. She is described as a Deputy Commissioner of Taxation and a delegate of the Commissioner of Taxation. The signature is not an original signature but is a facsimile or stamped copy of the signature. 10 Putting aside the query raised about the signature, it is plain that pursuant to the Act the certificate is prima facie evidence that the alleged sum is due and payable by the appellant to the Commonwealth. 11 Obviously with the assistance of the legislation to which I have referred, the respondent has a powerful case for summary judgment. Parliament clearly wishes to simplify collection of tax requiring resort to law. 12 The appellant's affidavit in response, to the extent that it is possible to follow what is being asserted, does not show that she has a good
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defence on the merits. It is unhelpful on the question of whether the appellant has a defence at all, let alone a bona fide defence. Without more the respondent would be entitled to summary judgment. 13 However, the appellant's counsel sought to argue, not that there was a defence on the merits, but that there were technical deficiencies in proof offered in the affidavit relied upon by the respondent. 14 Counsel's submissions arose solely out of matters touched upon in grounds of appeal 3(c) and 4. None of the other grounds of appeal were pursued and I do not propose to go into the issues raised by them. 15 Ground 3(c) states: "Exhibit "BL-4" in the affidavit of Lambert does not provide evidence of how the relevant notices were served or deemed to have been served, and is nothing other than a typed document stamped with an impression of the signature of the plaintiff." 16 Ground of Appeal 4 states: "The Taxation Administration Act 1953…provides that certificates of evidence pursuant to Section 255-45 of Schedule 1 are to be signed by the Commissioner with a right of the Commissioner to delegate his powers and functions in writing. There is no evidence before the Court that the Commissioner has delegated his powers and functions pursuant to that section to the plaintiff or that the plaintiff has signed the relevant exhibit. The relevant exhibits have clearly been imprinted with a stamp, as has the writ been so imprinted." 17 It is to be noted immediately that s 255-45, of the Taxation Administration Act 1953 states that a certificate can be signed by the Commissioner, a second Commissioner, or a Deputy Commissioner. In the certificate, Erin Holland is described as a Deputy Commissioner. 18 The essence of counsel's argument, as it should be, is revealed in his outline of submissions. It is convenient to set out the relevant submissions: "3. The evidentiary certificate in this case is signed by the affixing of a stamp or facsimile signature to the certificate. The evidentiary certificate is clearly not signed by a Deputy Commissioner of Taxation.
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4. There is no doubt that a Deputy Commissioner of Taxation is entitled to sub-delegate powers to officers within the Taxation Office. 5. However there is no evidence at all that the facsimile signature or stamp was affixed to the evidentiary certificate by anybody who was authorised or held such delegated authority. There is no evidence at all about the identity of the person that affixed the facsimile signature of stamp. 6. The use of a 'prima facie' evidentiary certificate does not remove the need to show that the evidentiary certificate was created within the parameters of lawfully delegated powers. The plaintiff has not done that in this instance and there is no way for the Court to be satisfied that any person with proper delegated authority prepared the evidentiary certificate. 7. Because of the strength of the evidentiary certificate it is essential that the Court be satisfied as to the process of it coming into existence." 19 In response to this point counsel for the respondent drew the Court's attention to s 176 and s 177 of the Income Tax Assessment Act 1936. 20 Section 176 states: "All courts and all persons having by law or consent of parties authority to hear, receive and examine evidence, shall take judicial notice of the signature of every person who is or has been the Commissioner, a second Commissioner or a Deputy Commissioner provided such signature is attached or appended to any official document." 21 There is no guidance as to what is meant by "attached or appended" but it was submitted that the wording necessarily contemplates a signature process which is other than "signed" and must, as a matter of proper interpretation in all the circumstances, be taken to cover the commercially common practice of the affixing of a signature in the form of a stamp being a likeness of that signature. 22 It seems to me, considering the nature of the business conducted by the respondent, that this interpretation of the section is open. The volume
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of material requiring a signature of one or other functionary in an organisation such as the Tax Office would, I infer, be enormous. I would give the words a broad interpretation. 23 Section 177 relates more to the notices of assessment and provisional tax which are Exhibits BL-1, 2 and 3 to the abovementioned affidavit. Subsection (1) states: "The production of a Notice of Assessment, or of a document under the hand of the Commissioner, a second Commissioner or a Deputy Commissioner purporting to be a copy of a Notice of Assessment, shall be conclusive evidence of the due making of the assessment and (except in proceedings on appeal against the assessment) that the amount and all the particulars of the assessment are correct." 24 And, according to counsel most importantly, s 177(3) states: "The production of a document under the hand of the Commissioner, a second Commissioner, or a Deputy Commissioner, purporting to be a copy of a document issued by either the Commissioner, a second Commissioner or a Deputy Commissioner, shall be conclusive evidence that the document was so issued." 25 And finally, subs (4): "The production of a document under the hand of the Commissioner, a second Commissioner, or a Deputy Commissioner, purporting to be a copy of or extract from any return or Notice of Assessment shall be evidence of the matter therein set forth to the same extent as the original would be if it were produced." 26 Counsel for the respondent submitted that s 176 and s 177, were "designed to facilitate proof" in a situation where a vast organisation seeks to conduct its lawful business and that the legislation should be interpreted against that background. The more so, according to counsel, when there are no matters advanced by way of evidence which suggests there is a substantive defence, a defence on the merits. Counsel also drew the Court's attention to the following provisions, namely:
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"(1) Regulation 67 of the Income Tax Regulations which provides that an evidentiary certificate is, in the absence of evidence to the contrary, sufficient evidence that – (a) the appellant is liable to pay tax; (b) Assessments of tax payable by the appellant were made against the appellant in respect of the years ended 30 June 1999 and 30 June 2000; (c) the particulars of the Assessments are as stated in the Certificate. (d) the Notices for the years ended 30 June 1999 and 30 June 2000 were served on the defendant; and (e) the amount referred to in the Certificate is at the date of the certificate a debt in respect of tax due by the appellant to the Commonwealth. (2) Section 208(2) of the Income Tax Assessment Act which provides that tax and additional tax and interest, when due and payable, is rendered a debt due to the Commonwealth and payable to the Commissioner. 27 In my view it is not necessary for the respondent to produce material relating to the identity and powers of the person who actually affixed the facsimile stamp of the signature of the Deputy Commission upon the relevant document. There is no need to identify that person. The legislation which facilitates proof in these matters seems to me to deal with objections of that kind. There is no substance in these objections made by the appellant and the result in my view is that there is no defence to the respondent's application. 28 A second assertion put by the appellant relied upon some materials lately provided to the Court which comprised excerpts from documentation filed by the Deputy Commissioner of Taxation in another unrelated action, namely action No 2514 of 2000 involving the Deputy Commissioner and one, Helms. In his affidavit sworn 24 February 2003, counsel for the appellant stated this: "2. During last week I was spoke (sic) with Nathan Pinkney Helms who is also involved in litigation with the Deputy
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Commissioner of Taxation for the Commonwealth of Australia in District Court action No 2514 of 2000. 3. Mr Helms advised me that he had documents from the Deputy Commissioner of Taxation for the Commonwealth of Australia, which would be of interest to the defendant in this action and that he would provide me with a copy of them. Mr Helms faxed a copy of the relevant documents to me over the weekend. 4. Annexed hereto and marked DEE 1 are those documents, which comprise the cover/index page of an affidavit of Brad Lambert sworn 7 February 2003 along with Annexures BL 1, BL 2 and BL 3 to that affidavit of Brad Lambert." 29 Annexure BL 1 is a copy of a document called An Instrument of Authorisation. It is dated 1 November 2002 and signed by Erin Holland, Deputy Commissioner of Taxation Operations Programme. It authorises certain people to do a number of things including the affixing of a facsimile "of the Deputy Commissioner of Taxation's signature on any certificate, notice or other document". 30 There is no such document in the case presently before the Court. I am not convinced one such document is needed for the circumstances I have already outlined. 31 Reference is then made to Annexure BL 2 which is a document signed by the Commissioner of Taxation, Michael Carmody, on 3 February 2003 and is entitled "Assignment of Duties of Deputy Commissioner of Taxation Operations". It states: "I, Michael Carmody, Commissioner of Taxation, having the powers of an Agency Head for the purposes of the Public Service Act 1999 and pursuant to s 25 of that Act, do hereby assign Erin Kathleen Holland, Assistant Commissioner of Taxation, Senior Executive Band 1, the duties of Deputy Commissioner of Taxation Operations, Senior Executive Band 2, Position No 1017635, Australian Taxation Office with effect from 3 February 2003 to 17 February 2003." 32 Annexure BL 3 is a national office circular setting out senior appointments and listing a number of persons, including Erin Holland, who was appointed to the position of Deputy Commissioner Operations
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(to take effect from 17 February 2003). The document is signed 4 February 2003. 33 It is submitted that because of the fact that these appointments must necessarily have been required, that therefore Erin Lambert would not have been a properly appointed Deputy Commissioner of Taxation at the time she signed or her facsimile signature was affixed to Annexure BL 4, the evidentiary certificate, annexed to the affidavit of Brad Lambert on 4 July 2002 (to which reference has earlier been made). 34 Merely because Erin Holland was assigned the duties of a Deputy Commissioner of Taxation on 3 February 2003 for the period from 3 February 2003 to 17 February 2003, and merely because apparently she was thereafter appointed as a Deputy Commissioner "from 17 February 2003", does not indicate to me, as a matter of logic, that she would therefore not have been a Deputy Commissioner of Taxation in July 2002. It is not a matter which is of such concern or weight as, in my view, to dilute the effect of the legislative assistance provided by Parliament to the Commissioner in proof of the relevant matters I have dealt with above. 35 I do not think there is any substance in the attack made by the appellant upon the chain of proof of the signatures upon various critical documents relied on by the respondent. 36 It follows that in my view the respondent's application for summary judgment in the amount of $74,517.78 should succeed and there should be an order that the appellant pay that sum. I shall hear counsel on the question of interest and the quantum thereof.
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