Joosse v DeputyCommissioner of Taxation

[2003] HCATrans 579

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M61 of 2002

B e t w e e n -

WOLTER JOOSSE

Applicant

and

DEPUTY COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA

Respondent

Application for special leave to appeal

McHUGH J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 14 FEBRUARY 2003, AT 10.56 AM

Copyright in the High Court of Australia

MR W. JOOSSE appeared in person.

MR C.M. MAXWELL, QC:   May it please the Court, I appear with my learned friend, MR S.A. LINDEN, for the respondent.  (instructed by the Australian Government Solicitor)

McHUGH J:   Would you proceed to your argument, please, Mr Joosse?

MR JOOSSE:   Your Honours, this proceeding and that of Eddie Mabo are similar in character insofar as Mabo only wished to see his sick mother.  It was refused.  The applicant in this proceeding only wants a fair trial and the opportunity to present witness and evidence.  Both were denied this basic right which led – which they have believed to be only fair and reasonable practice.

Because of the denial of fair and reasonable process they were forced to look towards the law for their protection only to find in the process of doing so that not all is what you – as appears at first sight.  In Eddie Mabo’s case we learned that 200 years of precedents were incorrect in their decisions and that our learned judges and magistrates had erred.  Neither Eddie Mabo, nor the applicant in this proceeding, sought to raise any of the issues currently before this Court but were forced to do so in order to protect family livelihood and good name.

This matter could have been resolved very simply had the County Court proceeded with its original order to bring the parties to a direction hearing followed by a proper hearing of presentment of witness and evidence.  The applicant only seeks procedural fairness and opportunity to defend himself against the alleged claim.  It is surely not unreasonable to be allowed to challenge an alleged debt of this magnitude and capable to ruin one’s family.

It would be sad, indeed, if only criminals were afforded a fair and proper hearing.  This application for leave to appeal the decision of the Court of Appeal qualifies under each of the subsections of 35A of the Judiciary Act.  A writ originally had been served on the applicant alleging that a debt was owed to the Commonwealth resulting from a penalty imposed by averment on a director.  The writ misled the respondent insofar that it stated:

IF YOU INTEND TO DEFEND the proceeding, or if you have a claim against the Plaintiff which you wish to have taken into account at the trial, YOU MUST GIVE NOTICE of your intention by filing an appearance within the proper time for appearance stated below.

It went on to say:

IF YOU FAIL to file an appearance within the proper time, the Plaintiff may OBTAIN JUDGMENT AGAINST YOU on the claim without further notice.

This misled the defendant who is a litigant in person into believing that after filing a notice of appearance that he had complied with all the requirements and was safeguarded against any judgment entered in his absence.  Since he had followed the instructions and complied with all the requirements, he now had an expectation that he would receive a fair and proper hearing in which to present witness and evidence that the alleged debt was not owing.

This expectation was reinforced upon the receipt of an order of the Melbourne County Court that all parties were summoned to a direction hearing on 21 February 2002, some six months hence, at which time the notice read, “A trial will be allocated at this direction hearing”.  This order gave rise to belief that the defendant was granted the procedural fairness guaranteed by common law insofar that he would be given an opportunity to be heard and be allowed to provide proper evidence.

However, to the applicant’s utter surprise the court order had misled him into a false belief and he received by post on 2 August 2001 notice of entry of judgment for the amount of the alleged claim, including interest and costs but without any information as to why such judgment had been entered before the ordered direction hearing or in the absence of the defendant who had filed his appearance within the time prescribed.  The default judgment entered against the applicant was in total contrast to the expectation provided by the court, and the writ, which had put the applicant under a legitimate expectation that he would receive judicial fairness at a proper hearing.

The order of the County Court to attend the direction hearing had misled the applicant in believing this.  He believed that natural justice was taking its course and judicial fairness, according to common law, would be afforded.  This Court has held on numerous occasions that where there is an expectation of judicial fairness - and the applicant submits that upon the receipt of the order to attend the direction hearing there was a legitimate expectation and perhaps even an obligation to deliver natural justice.  The applicant had been given legitimate reasons to believe that he would be given ample opportunity to prepare his defence and be allowed to present evidence prior to any judgment.

It seemed most unreasonable and unfair to deny him his right to natural justice and allow him the opportunity to demonstrate that the alleged debt could not be owing.  The common law has traditionally afforded every person, natural born or other, a right to be heard before the exercise of a statutory power prejudiced any of his or her existing rights or interests.

McHUGH J:   Yes, but your argument does not deal with the issue on what the matter turned on.  Judgment having been signed against you, the judge considered whether you had a defence on the merits and he found that you did not.

MR JOOSSE:   Well, that is the part I wish to contest in an appeal, your Honour.  I have not been given leave to present evidence.  I was told at the original proceeding that the matter would be restricted to the reason why the judgment should be set aside and when I applied at the Court of Appeal I was given instruction that I could only deal with the matter why Judge Holt had erred.  Presentment of evidence was never the issue before the County Court – before the Court of Appeal and indeed, your Honour, I was most surprised when his Honour Justice Batt wrote in the judgment that he had virtually reheard the case because I was never notified that any such proceeding was taking place.  Your Honours, the applicant, as I said, sought advice.  Judge Holt had no evidence to prove or not prove the application and in fact Judge Holt erred when he did not realise that by its own pleadings, the pleadings of the plaintiff, the pleadings were made by averment and the line to the creation of the debt had never been established and could not be established.

I had – Judge Holt had given notice, or advised me, that my affidavit did not support my defence and, as a litigant in person, I was not quite aware what an affidavit should contain and I was under the, as it appeared, wrong impression that it was a statement of legal existence and I asked immediately for leave to file such affidavits and this was denied by me by Judge Holt who asked, “For what reason should I do that?”, and to which I replied at the time, “For procedural fairness and the attainment of justice”.

In hindsight, Judge Holt could have easily directed me or suggested to me to take the stand and make such a submission under oath but to deny me straight out, you know, my right to be heard on the grounds that my application did not support an affidavit was a way where the Rules of the Court became the master and my submission to Judge Holt was the submission that is on pages 4 and 5 which deal with the civil procedure of Victoria where under the section of Supreme Court Act there are numerous cases listed where decisions out of this Court and in the Federal Court held that the rules must not stand in the attainment of justice.

Judge Holt at the time had absolutely no evidence in front of him other than the statement of writ which was made by averment and a very limited defence from the applicant – from the respondent – and I say “limited” because when I made some inquiries with the County Court and they explained that I had to file a notice of defence I inquired, “What constitutes a notice of defence?”, and they suggested that I should go through the original writs and note what I agree with and what I did not agree with.  That is precisely what I did and it appears that was not, you know, sufficient.

Judge Holt asked me at the time – he said, “Yes, well, I don’t think you have a valid defence”.  I said, “I beg to differ.  I have numerous defence, including ultimate defence, and the ultimate defence is that the company was never an employer”, but Judge ‑ ‑ ‑

McHUGH J:   Judge Batt refers to some quite damning evidence to the contrary.

MR JOOSSE:   I know, but that evidence was not aired in court for me to challenge and this is the right that I seek.

McHUGH J:   He must have got it from somewhere.  You are addressing what happened before Judge Holt.  This is an application for special leave to appeal against an order refusing leave to appeal.  Now, you have to show some error on the part of the Court of Appeal.  So far, you have not addressed any argument to the Court of Appeal’s reasoning.

MR JOOSSE:   Your Honour, prior to the commencement I put a request in writing under section 130 of the Evidence Act seeking that the proceeding be transcribed.  By doing so I had an expectation that at the end of the proceeding I would be – a transcript would be available, but when I made inquiries Justice Batt said that the Court of Appeal does not transcribe its proceedings.

Now, this puts an appellant at a very difficult position because now suddenly I am here to argue against two judges and possibly another member of the court without being available to any evidence of what took place in the proceedings, which is a very, very similar scenario as to what happened in the case with Judge Holt where a videotape was preserved by note – you know, which I have in writing from the judge’s associate that the Court of Appeal had asked for it to be preserved.  To my utter surprise, Judge Holt claims that I had been tardy and that since – when the court made inquiries for this transcript they were told that the videotape had been erased.  Now, that is a very serious matter.  To tamper with evidence that is required in future proceedings ‑ ‑ ‑

McHUGH J:   It is not evidence.

MR JOOSSE:   Well, this is my only evidence that I can, you know, show to a Court of Appeal if a judge acted in a prejudiced way or if I was denied natural procedural - fairness of procedure.  I have – I only wish for the right to be heard in a court where I can be prepared and come to court fully prepared to argue the debts.  I have not been given this chance.  His Honour Justice Batt ruled that Judge Holt had not erred.  But Judge Holt had nothing before him to rule either way.  In fact, he claimed that it did not matter if the company owed – was an employer or not.

Now, this is a crucial thing, Judge Holt was not in a position, nor was his Honour Justice Batt, to make a ruling on the matter of service.  There was an affidavit filed by Mr David Johnston who alleged that he hand‑delivered some envelopes which after all these years we still have because ‑ ‑ ‑

McHUGH J:   Mr Joosse, this is irrelevant.  You have to appreciate this is an application for special leave to appeal.  This Court can only hear 50 or 60 cases a year out of the hundreds of thousands of cases that are decided around Australia.  There has to be something very special about a case.  You are appealing against discretionary judgments, interlocutory judgments, and you have to show some error on the part of the Court of Appeal.  Now, I have read the Court of Appeal judgment several times and at the moment I do not see any error in it and I have not heard any submission from you which indicates there is any error in it.  In your remaining time I would like you to address that.

MR JOOSSE:   Well, as you are aware, I also put in my defence some matters of law, including section 75 of the Federal Constitution.

McHUGH J:   Yes, I have read those.  I have read all your arguments, but ‑ ‑ ‑

MR JOOSSE:   And it is my submission that the courts – the court or the State did not have the jurisdiction because this was not a matter dealing with federal jurisdiction.  This was a civil matter by which the Commonwealth is claiming an alleged debt.  Now, also, I – you know, Justice Batt ruled out of hand, without presentment of evidence, lots of other matters that I had raised, you know, points of law, for instance, that the section 22APC, if it was applicable, is ultra vires insofar that it discriminates against creditors because only the Deputy Commissioner of Taxation has the right to check someone’s bank balance and if they find that there are insufficient funds there, look to - or create a debt by penalty claiming the same amount to a totally different entity.

Now, if I can bring your Honours to the Income Tax Act which is on page 3 we see that under the Income Tax Assessment Act 1936, section 221C(1A) the failure to deduct wages is only $1,000 and section (1B) deals with the fact that only a judge can increase it. Now, I say that this company did not employ any people and it was not by law ‑ ‑ ‑

McHUGH J:   You say now it did not but ‑ ‑ ‑

MR JOOSSE:   I did not from the word go.

McHUGH J:   In answer to a questionnaire of Bellhop’s liquidator, you stated that in 1978, 1998 and 1999 the company had 16, 14 and 9 employees respectively.

MR JOOSSE:   Yes, that is what I stated.

McHUGH J:   Was that true or false?

MR JOOSSE:   That was not true.

McHUGH J:   So, you gave a false answer.

MR JOOSSE:   Well, actually, your Honour, at the time I was under a lot of stress and I only related to a responsibility to certain people but they were not employees.  Bellhop had no bank account.  It was in no possible position to run a business or employ employees.  I have in the back of the thing even the deregistration of it - a group certificate.  The company, Bellhop, was then called David Keyes Australia Pty Ltd.

McHUGH J:   What about the judgment of Justice Marshall in the case that the Textile Union brought against you?

MR JOOSSE:   Yes, I can easily address with that but Justice ‑ ‑ ‑

McHUGH J:   Yes, I know.  There are the factors.  But, to do yourself justice you have to show error on the part of the Court of Appeal.

MR JOOSSE:   Your Honour, at the time – this is also a result of a trade union.  I was dragged in and out of courts constantly and whilst you refer to his Honour Justice Marshall, there is another decision from another federal judge around about the same time who ruled that only three people, or two people, had been employees of Bellhop prior to 1994 and the rest were not.

McHUGH J:   Mr Joosse, your time is up.  I appreciate that you feel strongly about this matter, but we have to deal with the matter as a matter of law.  So your time is up, thank you very much.  We do not need to hear you, Mr Maxwell.

The Court has considered the written submissions and the oral submissions of Mr Joosse and the Court is of the view that there is no ground for the grant of special leave.  Accordingly, the application is dismissed with costs.

MR MAXWELL:   Your Honours, I ‑ ‑ ‑

McHUGH J:   You are seeking indemnity costs?

MR MAXWELL:   We do and, your Honour, that ‑ ‑ ‑

McHUGH J:   Yes, I appreciate that, but it is not the practice of this Court to order indemnity costs – at least it has not been so far.

MR MAXWELL:   With the greatest of respect, your Honour – I do not wish to elongate the point, but we have furnished the Court with two single Judge decisions in which orders for costs on that basis were made and, in our respectful submission, though it seems an odd application in response to a litigant in person who is genuinely aggrieved, we have sought to explain in our summary of argument why this is a proper case.  Much of it turns on what your Honour the presiding Judge has mentioned about the care with which the Court of Appeal dealt with these issues.  There was a lengthy hearing on the application for leave before the court ‑ ‑ ‑

McHUGH J:   I appreciate that.  It seems to have gone most of the day, but ‑ ‑ ‑

MR MAXWELL:   And Mr Joosse has been a litigant in this Court before.  If your Honours please, I will not press the application.

McHUGH J:   Yes, thank you, Mr Maxwell.  Yes, there will be the ordinary order as to costs.  There will not be an order as to indemnity costs.

AT 11.21 AM THE MATTER WAS CONCLUDED