Jewiss v Deputy Commissioner of Taxation (No 2)

[2007] FCA 1257

FEDERAL COURT OF AUSTRALIA

Jewiss v Deputy Commissioner of Taxation (No 2) [2007] FCA 1257

HENRY WILLIAM JEWISS v DEPUTY COMMISSIONER OF TAXATION

SAD 197 OF 2005

MANSFIELD J
13 AUGUST 2007
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 197 OF 2005

BETWEEN:	HENRY WILLIAM JEWISS Applicant
AND:	DEPUTY COMMISSIONER OF TAXATION Respondent

JUDGE:	MANSFIELD J
DATE OF ORDER:	13 AUGUST 2007
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.Application for adjournment by motion filed 13 August 2007 refused.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 197 OF 2005

BETWEEN:	HENRY WILLIAM JEWISS Applicant
AND:	DEPUTY COMMISSIONER OF TAXATION Respondent

JUDGE:	MANSFIELD J
DATE:	13 AUGUST 2007
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This matter was listed for hearing commencing today, for a period of five days.  A motion dated 10 August 2007 and filed today sought to vacate the hearing date.  It was supported by two affidavits, one of the applicant’s solicitor and one of the applicant himself.  I say one of the applicant’s solicitor because, although he is not presently formally the solicitor on the record, I have been informed that it was intended to have filed a notice of acting, and that solicitor has undertaken to file such a notice.  I have proceeded on the basis that that will be done.

2. The adjournment application is based upon the asserted unavailability of counsel due to illness.  I accept that from about the start of August 2007 the person who has been identified as the proposed counsel has been ill.  The Commissioner has not sought to contest that fact.  But it is equally clear that the person so named as the proposed counsel has not been retained to appear as counsel in this matter, although there have been some communications with that counsel.

3. This matter was listed for hearing for the third time by orders made on 28 May 2007.  On 15 June 2007, I was told by the solicitor for the applicant that he was retaining the counsel referred to above, and that that counsel was not available until early August 2007.  The hearing date was fixed, mindful of what I was then told.  However, on the evidence, it is unclear that that counsel was, in fact, approached to be retained, or even that inquiries had been made as to his availability and preparedness to be briefed in this matter until about the middle of July. 

4. I accept that the solicitor for the applicant arranged for the applicant to consult with that counsel direct for the purposes of at least informally briefing him.  On the evidence, that took place about mid-July by a telephone conversation, the provision of some, but not very many, documents, and then a meeting on 1 August 2007.

5. The proposed counsel, whoever it may have been, should have been retained promptly after the hearing date was fixed, on 28 May 2007, if not before that time.  On the evidence, no brief has been delivered to counsel at all.  No letter of engagement has been provided to counsel.  No arrangements have been made for the payment of counsel fees.  Some documents were provided by the applicant to counsel in the latter part of July.

6. The solicitor for the applicant in his affidavit, apart from referring to the information he had received about the illness of counsel, says that the proposed counsel informed him by telephone conversation of 9 August 2007 that the counsel would need two months to prepare for the trial and to amend the pleadings, subject to an appropriate retainer being agreed and being paid into the solicitor’s trust account.

7. I agree with the submissions made on behalf of the respondent that, in those circumstances, had the proposed counsel been of perfectly good health, that counsel would not have regarded himself as having been retained, and would not have been in a position to conduct this application on the date fixed for the hearing.  I conclude that the reason why the applicant, in reality, is confronted with the need, as perceived, to seek an adjournment of this matter is because counsel was not retained in a timely manner, and so could not be ready to progress with it. 

8. The issue then, is what should be done in respect of the application.  As I have said, this is the third occasion upon which this matter has been listed for hearing.  It was first listed for hearing, commencing on 24 July 2006.  That hearing was abandoned because the applicant wished to extend the nature of his allegations in a way which subsequently I found to be improper.  His proposed allegations were dismissed, except for the present claim under Pt IVC of the Taxation Administration Act 1953 (Cth), by judgment delivered on 5 December 2006 in Jewiss v Deputy Commissioner of Taxation [2006] FCA 1688.

9. On 15 September 2006, the matter was again listed for hearing, commencing on 11 December 2006.  The hearing was then adjourned further because of the applicant’s state of health.  I do not need to go into it, but I accepted then, as I do now, that that was a legitimate circumstance in which that hearing could not proceed and, indeed, could not progress substantially until late April 2007.  I therefore discount from my consideration the period of time during that second adjournment as a factor going to the exercise of the discretion as to whether or not adjourn the present hearing.

10. There are other factors which I bear in mind in ruling upon the adjournment application.  If it is granted, the respondent will incur significant costs.  Whilst the applicant acknowledges that he will have to submit to an order for costs of the adjournment, there is no further proposal put by the applicant which gives me any assurance that those costs will ever be met.  The outstanding disputed taxation liability is in the order of $1,000,000.  The assessments were issued in 2002.  They have not been paid.  There is no information provided by the applicant in support of this application as to his assets or his liabilities, or as to his capacity to meet any order for costs if an adjournment were granted.  In my view, there is a very significant risk that the costs of this adjournment, if granted, which the respondent will incur, will not be able to be recovered.

11. I am also influenced, but to a relatively minor degree, by the tentative view I have that there is no significant prospect of the applicant securing counsel to appear for him if the matter were to be adjourned.  Quite apart from what I regard as dilatory attempts to engage counsel for this hearing, there is no basis upon which it is shown that the applicant is in a position to pay moneys into trust on account of counsel fees to be incurred or, indeed, for solicitors’ fees. 

12. The matter has a long history of the applicant’s attempts to comply with Court directions ultimately, apparently, in a form which the respondent is able to proceed with the hearing.  But whether or not the applicant could afford counsel, as to which I think there is a very significant doubt in the absence of any material suggesting to the contrary and in the light of the conduct of the matter thus far, it is unclear whether counsel, properly instructed, would be prepared to undertake this matter.  I simply have no feeling one way or the other.  

13. I also look to the issue of prejudice to the applicant.  He now says that he wishes to retain counsel.  The proceeding was instituted by the applicant on 19 August 2005.  So far as the evidence indicates to me, the attempts to engage counsel were only initiated sometime in July 2007.  During the latter part of 2005, and for most of 2006, the applicant chose to conduct the proceeding himself.  His proposed evidence has been filed, including his own statements.  The statements of facts, issues and contentions have been exchanged.  He now has a solicitor on the record.  Whilst I accept that a properly briefed counsel may be able to present his case somewhat better than he himself could, this is not a case where he has previously shown that he did not regard himself as able to conduct the proceeding or where I am satisfied that he, himself, is not able to conduct the proceeding, putting aside that period of ill health to which I have referred. 

14. I also take into account the issue of delay and the public interest.  The proceeding was commenced, as I have said, on 19 August 2005.  There is a lengthy history preceding this action, referred to in the judgment to which I have already referred given on 5 December 2006, involving action in the District Court, and then an extensive range of issues and debates leading ultimately to an appeal to the Full Court of the Supreme Court of South Australia, and to a judgment entered in the District Court proceedings for the amount of the assessed tax upon the notices of assessment. 

15. Further delay is not in the public interest.  It is desirable that litigation be brought to a head as soon as it can reasonably be done.  That is particularly so where the basis of a further adjournment application, as here, is one which I have rejected.  Whilst I do not go so far as to conclude that the applicant’s adjournment application is but a further attempt to put off the hearing and determination of this proceeding for whatever reason, in my view, the public interest in having an end to litigation in a timely manner should be considered in the scales. 

16. Having regard to those various factors, in my judgment the adjournment application should be refused. 

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated:        16 August 2007

Counsel for the Applicant:	Mr J Pertl
Counsel for the Respondent:	Mr DB McGovern QC with Mr RI Sallis
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	13 August 2007
Date of Judgment:	13 August 2007