Meredith v Chief Commissioner of State Revenue

[2008] NSWSC 564

CITATION:	Meredith v Chief Commissioner of State Revenue [2008] NSWSC 564
HEARING DATE(S):	6 June 2008
JUDGMENT OF:	Gzell J
EX TEMPORE JUDGMENT DATE:	6 June 2008
DECISION:	Hearing vacated. Plaintiff to pay defendant's costs thrown away. Leave to file and serve amended summons joining the other members of the Hardship Review Board.
CATCHWORDS:	TAXES AND DUTIES - Hardship Review Board - Plaintiff assessed to tax by defendant under Gaming Machine Tax Act 2001 - Board has power to waive tax in cases of hardship - Application for waiver rejected by Board - Proceedings seeking review of that decision - Leave granted to join Board as a defendant - Not done - Whether Board a corporate entity or constituted by individuals under the Taxation Administration Act 1996, s 106A(1) - Defendant a member of the Board - Defendant obtained judgment against plaintiff - Whether tax merged in judgment - Whether no longer any tax that might be waived by Board - PROCEDURE - Miscellaneous Procedural Matters - Adjournments - Impecuniosity to be relieved in months - Whether merger argument renders proceedings futile
LEGISLATION CITED:	Civil Procedure Act 2005 Gaming Machine Tax Act 2001 Taxation Administration Act 1996 Supreme Court Act 1970
CASES CITED:	Queensland v JL Holdings Pty Ltd (1996-1997) 189 CLR 146
PARTIES:	Lynette Anne Meredith (Plaintiff) Chief Commissioner of State Revenue (Defendant)
FILE NUMBER(S):	SC 4819/06
COUNSEL:	Mr D Bernie (Plaintiff) Mr P Walsh (Defendant)
SOLICITORS:	Forbes-Smith and Company - Solicitors (Plaintiff) Champion Legal (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

FRIDAY 6 JUNE 2008

4819/06 LYNETTE ANNE MEREDITH v CHIEF COMMISSIONER OF STATE REVENUE

EX TEMPORE JUDGMENT

1 I have before me an application by the plaintiff, Lynette Anne Meredith, to vacate the hearing of this matter that was set down before me today. The proceedings have already been adjourned at the instance of Ms Meredith in November 2007 because of the illness of her solicitor.

2 The current application is based upon the circumstance that Mr Bernie, who now appears for Ms Meredith, was only briefed yesterday. It has been stated from the Bar table that Ms Meredith is impecunious but her husband expects to be in a position to fund the prosecution of her appeal in two months’ time. For the purposes of this application I accept that statement.

3 The application is opposed on the basis that the matter of impecuniosity could have been raised when the matter was before the Court on 29 February 2008 and because the efficient disposition of proceedings before the Court will be affected by yet another adjournment.

4 The Civil Procedure Act 2005, s 56(1) provides that the overriding purpose of the Act and rules is to facilitate the just, quick and cheap resolution of the real issues in proceedings. Section 57 provides that for the purpose of furthering that overriding purpose, proceedings in the Court are to be managed having regard to their just determination, the efficient disposal of the business of the Court, the efficient use of available judicial and administrative resources and the timely disposal of the proceedings and all other proceedings at a cost affordable by the parties.

5 The third basis on which the application is opposed is the submitted lack of utility in granting the adjournment because of the real prospect that the proceedings will fail.

6 The defendant, the Chief Commissioner of State Revenue, assessed Ms Meredith to tax under the Gaming Machine Tax Act 2001. The Hardship Review Board constituted by the Chief Commissioner, the Auditor General and the Secretary of the Treasury under the Taxation Administration Act 1996, s 106A(1) refused to grant her relief from payment of the tax. In these proceedings Ms Meredith seeks orders with respect to that adverse decision.

7 The basis for the submission that the proceedings will fail is that an agreement was reached in District Court proceedings brought against Ms Meredith by the Chief Commissioner to collect the tax. It was agreed that judgment should be entered for the Chief Commissioner for the tax and interest but it would not be enforced if Ms Meredith paid a specified amount by a specified date. She did not and a certificate of judgment against her was obtained by the Chief Commissioner.

8 The argument is that the tax merged in the judgment and the Hardship Review Board has no power to grant relief from the judgment.

9 The Gaming Machine Tax Act, s 18 provides that the Hardship Review Board may exercise its functions in relation to tax payable under that Act. The Taxation Administration Act, s 106B(1) provides that the Hardship Review Board may, if authorised by a taxation law to do so, waive the payment of tax either wholly or in part if satisfied of certain matters. Section 4 defines a taxation law to include the Gaming Machine Tax Act.

10 If the tax merged in the judgment, there is no longer any tax that could be waived by the Board.

11 Mr Bernie takes issue with the proposition that there has been a merger in the judgment, but concedes that the discretionary aspects relative to the grant of an order in the nature of mandamus under the Supreme Court Act 1970, s 65 or s 69 may mean that no such order will be made on the basis that when the agreement was entered into, Ms Meredith was represented by counsel.

12 I am not prepared to foreclose the argument raised by Mr Bernie that there may not have been a merger in the judgment of the District Court such that there is still a tax which may be the subject of waiver by the Hardship Review Board.

13 Notwithstanding that the due administration of Court proceedings is now a significant matter to be taken into account under of the Supreme Court Act, s 57, I am mindful of the proposition in Queensland v JL Holdings Pty Ltd (1996-1997) 189 CLR 146 that the justice of the matter should guide the Court in dealing with an application such as the one I have before me. Ms Meredith should, in my view, have the opportunity to have her arguments raised before the Court. I therefore accede to the application to vacate the hearing but on the basis that Ms Meredith must pay all of the Chief Commissioner’s costs thrown away by the adjournment.

14 The Court gave Ms Meredith leave to join the Hardship Review Board as a defendant and to file and serve an amended summons. She has not done so.

15 The Hardship Review Board is not a corporate entity. It is constituted by individuals. The Chief Commissioner is a necessary party to these proceedings only because he is one of those individuals. Ms Meredith should have the opportunity to join the other individuals as defendants.

16 I vacate the hearing of this matter set down before me today. I order the Plaintiff to pay the Defendant’s costs thrown away by the adjournment. I order the Plaintiff to file and serve any amended summons joining as defendants the other persons constituting the Hardship Review Board established under the Taxation Administration Act 1996, s 106A(1) by no later than 4.00 pm on Wednesday 11 June 2008. I stand the matter back into the ECM Court.

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