McCleary, Grant v Deputy Commissioner of Taxation

[1997] FCA 280

IN THE FEDERAL COURT OF AUSTRALIA     )
   )
WESTERN AUSTRALIA DISTRICT REGISTRY  ) No WAG 149 of 1996
   )
GENERAL DIVISION   )

BETWEEN:GRANT McCLEARY

Applicant

AND:THE DEPUTY COMMISSIONER OF TAXATION

First Respondent

CORAM:    HILL J
PLACE:    SYDNEY
DATED:    25 MARCH 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The application be allowed.

1. Judgment be entered in favour of the applicant against the respondent in the sum of $393,139.98.

1. The respondent pay the applicant's costs, being the costs incurred prior to cross-vesting, as well as the costs in this Court.

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

IN THE FEDERAL COURT OF AUSTRALIA     )
   )
WESTERN AUSTRALIA DISTRICT REGISTRY  ) No WAG 149 of 1996
   )
GENERAL DIVISION   )

BETWEEN:GRANT McCLEARY

Applicant

AND:THE DEPUTY COMMISSIONER OF TAXATION

First Respondent

CORAM:    HILL J
PLACE:    SYDNEY
DATED:    25 MARCH 1997

REASONS FOR JUDGMENT

In this matter the Deputy Commissioner of Taxation seeks to recover income tax and additional tax from the respondent, Mr Grant McCleary.

The proceedings commenced in the District Court, were transferred to the Supreme Court of Western Australia and subsequently cross-vested to this Court consequent upon proceedings having been commenced in this Court under s39B of the Judiciary Act 1903 (Cth), in effect seeking to challenge the validity of the assessment. Those latter proceedings have now been finalised by orders that I have made, as indicated in a judgment which I have delivered today.

The Deputy Commissioner has tendered the assessment for the income tax year ended 30 June 1993 and relies upon s177 of the Income Tax Assessment Act 1936 (Cth) to establish the conclusive validity of the particulars of that assessment, especially the tax payable thereon. There has also been tendered an amended assessment and notice of amended assessment, pursuant to which the amount initially payable has been reduced by an amount of $75,375.19.

Affidavit evidence has been read from a Ms Richards, an officer of the Australian Taxation Office ("the ATO").  Her affidavit, in addition to describing records kept by the ATO on computer, exhibits a certificate under reg 67 of the Income Tax Regulations certifying that an amount of $393,139.98 is owing by the respondent as at 25 March 1997.  That certificate purports to be signed by Mr Nicholls, the person who is Deputy Commissioner of Taxation in Western Australia, but as delegate of the Commissioner of Taxation ("the Commissioner").

Ms Richards exhibits also a formal instrument of delegation, dated 28 June 1995, deposing that the Deputy Commissioner at all times from 28 June 1995 was the duly authorised delegate of the Commissioner.  She also exhibits the instrument of delegation evidencing the delegation of the Commissioner's powers and functions to the Deputy Commissioner, Cannington, that is to say to Mr Nicholls, whose signature appears upon the reg 67 certificate.

Counsel for the respondent pointed out the date of the delegation.  He did not go so far as to suggest that the
delegation had been revoked and, of course, there was no evidence to that effect.  In regard to the terms of the affidavit, I accept that the delegation exhibited is the delegation in force as at today, there being no evidence of revocation.  The figures in the certificate have been explained to counsel for the respondent who accepts that they are correct.  I should say that even if the certificate had not been tendered it would be possible for the Court, although no doubt inconvenient, to calculate the mathematical matters which are referred to in it.

I am therefore satisfied that the applicant, the Deputy Commissioner, has proven his case and in consequence I direct that judgment be entered in favour of the Deputy Commissioner against the respondent in the sum of $393,139.98.

I would order that the respondent pay the Deputy Commissioner's costs, being the costs incurred prior to cross-vesting, as well as the costs in this Court.

I certify that this and the
preceding two (2) pages
are a true copy of the Reasons
for Judgment herein of his Honour
Justice Hill.

Associate:

Date: 

Counsel and Solicitors      S Owen-Conway QC instructed by

for Applicant:              the Australian Government Solicitor

Counsel and Solicitors      A Herskope instructed by

for Respondent:             Kitto & Kitto as agents for Melasecca Zayler

Dates of Hearing:           24 and 25 March 1997

Date Judgment Delivered:         25 March 1997