Miller v Deputy Commissioner of Taxation

[2022] WASCA 126

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   MILLER -v- DEPUTY COMMISSIONER OF TAXATION [2022] WASCA 126

CORAM:   MURPHY JA

MITCHELL JA

BLEBY AJA

HEARD:   15 SEPTEMBER 2022

DELIVERED          :   15 SEPTEMBER 2022

PUBLISHED           :   27 SEPTEMBER 2022

FILE NO/S:   CACV 72 of 2021

CACV 12 of 2021

BETWEEN:   WAYNE ROBERT MILLER

Appellant

AND

DEPUTY COMMISSIONER OF TAXATION

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   RUSSELL DCJ

Citation: DEPUTY COMMISSIONER OF TAXATION -v- MILLER [2021] WADC 29

File Number            :   CIV 2244 of 2017

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   RUSSELL DCJ

Citation: DEPUTY COMMISSIONER OF TAXATION -v- MILLER [No 2] [2021] WADC 65

File Number            :   CIV 2244 of 2017

Catchwords:

Appeal - Trial practice and procedure - Whether primary judge erred in refusing to extend time for the appellant to file affidavits to stand as evidence-in-chief of proposed witnesses - Where refusal of application to file late affidavits would effectively preclude appellant from running any defence to the claim made against him - Where application was made just prior to listed trial dates in a context where previous trial dates had been vacated by reason of the appellant's failure to file affidavits - Where grant of application would require vacation of new trial dates five business days before trial - Whether primary judge erred in refusing leave to file and adduce late affidavit evidence - Turns on own facts

Legislation:

Taxation Administration Act 1953 (Cth), sch 1 div 269, s 269-15, s 269-20, s 269-25, s 269-35(2)

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant	:	A C Willinge
Respondent	:	P A Walker

Solicitors:

Appellant	:	Forbes Kirby
Respondent	:	Australian Taxation Office

Case(s) referred to in decision(s):

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175

Durolek v Pier (WA) Pty Ltd [No 2] [2019] WASCA 138

Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; (2002) 209 CLR 478

Rowe v Stoltze [2013] WASCA 92; (2013) 45 WAR 116

REASONS OF THE COURT:

1. At the conclusion of the hearing of this consolidated appeal, the court ordered that the appeal be dismissed.  These are our reasons for making that order.

Factual and procedural background

1. The appellant (Mr Miller) was, at all material times, a director of ACI Broking (WA) Pty Ltd (ACIB) and Australian Consolidated Insurance Pty Ltd (ACI).  Those companies failed to remit Pay As You Go (PAYG) amounts, withheld from wages and salaries of their employees, to the respondent (Commissioner).  ACIB failed to remit PAYG amounts for various monthly withholding periods between 1 September 2012 and 28 February 2015.  ACI failed to remit PAYG amounts for various monthly withholding periods between 1 February 2011 and 28 February 2015.

2. On 27 June 2017, the Commissioner commenced the primary proceedings against Mr Miller claiming payment of directors' penalties in the amount of $361,841. 

3. The Commissioner's claim was made under div 269 of sch 1 to the Taxation Administration Act 1953 (Cth) (div 269). Section 269-15 of div 269 relevantly imposes an obligation on directors of a company to ensure that the company either meets its PAYG obligations or is promptly placed into administration or liquidation. Section 269-20 of div 269 imposes a penalty on directors for breach of that obligation equal to the unpaid amount of the company's liability. Section 269-25 provides that the Commissioner must not commence recovery proceedings until the end of 21 days after the Commissioner gives notice under that section. The primary judge referred to this notice as a 'director penalty notice' or 'DPN'.

4. Mr Miller, by his pleading, did not dispute that ACIB and ACI failed to comply with their PAYG obligations while he was a director.  To the extent that elements of the Commissioner's cause of action were not admitted, the Commissioner could rely on evidentiary certificates and averments in the statement of claim as prima facie evidence of those matters.[1] Mr Miller's pleading sought to raise three defences to the Commissioner's claim.

   [1] Under s 350-10 and s 350-20 of div 350 of sch 1 to the Taxation Administration Act.

5. First, Mr Miller pleaded a defence under s 269-35(2)(a) of div 269, which relevantly provides:

   You are not liable to a penalty under this Division if:

   (a) you took all reasonable steps to ensure that one of the following happened:

   (i) the directors caused the company to comply with its obligation;

   (ii) the directors caused an administrator of the company to be appointed under section 436A, 436B or 436C of the Corporations Act 2001;

   …

   (iii) the directors caused the company to begin to be wound up (within the meaning of that Act); or

   (b) there were no reasonable steps you could have taken to ensure that any of those things happened.

6. A schedule to Mr Miller's defence pleaded 14 'steps' which Mr Miller contended constituted all reasonable steps to cause ACIB and ACI to comply with their PAYG obligations.

7. Secondly, Mr Miller pleaded a defence that the Commissioner was estopped from bringing the claim against him or had waived the right to do so.

8. Thirdly, Mr Miller pleaded that the companies had made certain payments against PAYG withholding amounts for which the Commissioner had not accounted.

9. On 3 February 2020, the primary proceedings were listed for trial for five days commencing on 3 August 2020.  Programming orders made by a registrar on 3 February 2020 required the evidence-in-chief of all witnesses at trial to be given by affidavit.  Mr Miller was required to file and serve affidavits of all witnesses he proposed to call no later than 35 days before trial.  The orders provided that no party may adduce evidence from a witness who had not sworn an affidavit that was filed and served in accordance with the orders.

10. These orders required Mr Miller to file and serve his affidavits by 29 June 2020.  Mr Miller did not comply with that requirement.  On 3 July 2020, a registrar vacated the trial dates in August 2020.  On 27 July 2020, the trial was relisted for four days commencing on 2 March 2021.  Under the earlier programming orders, Mr Miller was required to file and serve any affidavits he intended to rely on as the evidence‑in‑chief of witnesses he proposed to call by 25 January 2020.

11. Mr Miller did not file any affidavits of proposed witnesses by 25 January 2020.  As things then stood under the interlocutory orders noted above, Mr Miller was unable to adduce the evidence of any witnesses at the trial listed to commence on 2 March 2021.

The interlocutory application

1. On 5 February 2021, Mr Miller applied for an order that he 'have leave to file and serve his affidavit and adduce his affidavit as his evidence‑in‑chief at trial'.  Mr Miller also applied for an order requiring the Commissioner to give further and better discovery of 'all Microsoft Office Communicator records' between 2009 and 2017 relating to certain topics.  Mr Miller relied on three affidavits in support of those applications.

2. Mr Miller's affidavit affirmed 5 February 2021 deposed as to medical conditions he experienced from July 2020 to January 2021.  These conditions included hypertension, cataracts in both eyes (for which he underwent surgery on 15 September 2020) and pain in his knees (for which he underwent surgery on 6 October 2020 and 19 January 2021).  Mr Miller deposed to taking pain medication.  Attached to the affidavit was a 'Patient Health Summary' in respect of Mr Miller from the Bedford Family Practice printed on 5 February 2021.

3. Mr Miller also relied on an affidavit from one of his solicitors, Huan Vu, affirmed 5 February 2021.  The firm of solicitors in which Mr Vu was employed, Forbes Kirby Lawyers, had been the solicitors on the record since 22 July 2020.  Mr Vu deposed to the delay in his firm receiving the files from Mr Miller's former solicitors, who asserted a lien until payment of outstanding fees.  Mr Vu received the former solicitors' files on 20 August 2020. 

4. In addition, Mr Vu described his knowledge of the use of Microsoft Office Communicator as an internal communication tool used by Australian Taxation Office (ATO) staff.  Mr Vu's affidavit asserted that the records would provide 'good documentary evidence regarding the ATO's management of the' relevant debts, 'good documentary evidence regarding the reasonable steps which Mr Miller took' and 'would serve as fruitful cross-examination material'.

5. Mr Miller also relied on a supplementary affidavit he affirmed on 19 February 2021.  This described his parlous financial situation and the difficulties that had caused him in relation to legal representation.  He deposed to having instructed his solicitors to cease work on various occasions because he could not afford the associated costs.  He also deposed to not providing instructions to Forbes Kirby Lawyers between October 2020 and January 2021, so as to prevent an increase in legal fees. 

6. Mr Miller further deposed that medication he was taking affected his ability to provide his solicitors with 'sufficient instructions'.  He said that his incapacitation from October 2020 to January 2021, a result of his surgeries and medication, prevented him from meeting with his solicitors to provide them with instructions in relation to the preparation of his affidavit.  He deposed as to certain topics, relating to the 'reasonable steps' he had taken, which he had instructed his solicitors should be dealt with in his affidavit.

Primary judge's interlocutory decision

1. The primary judge heard Mr Miller's interlocutory application on 19 February 2021.  Her Honour dismissed the application for reasons given orally on 23 February 2021.  Written reasons for decision, edited from the transcript, were subsequently published.[2]

Application for leave to file and adduce affidavit evidence

[2] Deputy Commissioner of Taxation v Miller [2021] WADC 29 (Interlocutory Reasons).

1. The primary judge referred to the relevant background and the affidavit evidence relied on in support of the interlocutory application.  Her Honour referred to the relevant general principles discussed by the High Court of Australia in Aon Risk Services Australia Ltd v Australian National University,[3] and by this court in cases including Rowe v Stoltze.[4]

   [3] Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175.

   [4] Rowe v Stoltze [2013] WASCA 92; (2013) 45 WAR 116.

2. The primary judge indicated that she would exercise her discretion to dismiss the application to file and adduce affidavit evidence having regard to the following matters:

   1.The primary proceedings had been on foot since 2017 and pleadings closed over a year ago.  The order requiring Mr Miller to file affidavits was made over a year ago, in February 2020.[5]

   [5] Interlocutory Reasons [87] - [89].

   2.The trial had already been vacated once at Mr Miller's request when he failed to file his affidavit evidence and needed further time to prepare his evidence.[6]

   [6] Interlocutory Reasons [83], [90] - [91].

   3.Mr Miller had failed to comply with the orders requiring him to file affidavits by 25 January 2021 and there was no satisfactory evidence explaining the delay.[7]

   4.There was no evidence as to the content of the proposed affidavit, the steps taken to prepare the affidavit or its state of readiness.[8]

   5.There was no evidence or indication from counsel appearing for Mr Miller as to the time Mr Miller required to prepare and file his affidavit.[9]

   6.Mr Miller's account of his health issues lacked specificity and was not supported by medical evidence, including any evidence by a medical practitioner as to how those health issues affected or may have affected Mr Miller's ability to prepare affidavit evidence.  In any event, Mr Miller's evidence was to the effect that he had instructed his solicitors to cease work and not prepare his affidavit evidence to save incurring legal costs.[10]

   7.Mr Miller had not provided any instructions to his solicitors from July 2020 to January 2021.  There was no evidence of any existing or likely change in Mr Miller's ability to provide instructions from a medical or financial perspective, from which the court could be satisfied that he would be in a position to file his affidavit evidence if given the opportunity to do so.[11]

   8.The Commissioner had complied with programming orders and was ready for trial, while Mr Miller had not complied with orders and was not ready for trial.[12]

   9.Mr Miller had the opportunity to put on evidence and failed to avail himself of that opportunity.[13]

   10.To allow the application would result in the trial of the action being vacated for a second time as a result of Mr Miller's inaction and failure to comply with court orders.  If the 2 - 5 March 2021 dates were vacated, the trial could not have been relisted until at least late 2021.[14]

Application for further discovery

[7] Interlocutory Reasons [80] - [81], [85].

[8] Interlocutory Reasons [84] - [86], [96].

[9] Interlocutory Reasons [61] - [62], [84].

[10] Interlocutory Reasons [93] - [94].

[11] Interlocutory Reasons [95] - [97].

[12] Interlocutory Reasons [98] - [103].

[13] Interlocutory Reasons [105].

[14] Interlocutory Reasons [104] - [105].

1. The primary judge also dismissed the application for further discovery of Microsoft Office Communicator records.  In essence, the primary judge concluded that the application would be dismissed because:

   1.The application was made less than one month before trial.  No adequate explanation had been provided for the delay and making the orders would necessitate an adjournment of the trial.[15]

   2.The application failed to meet the criteria for making an order for further discovery.  The evidence did not provide reasonable grounds for the court to be reasonably certain that the particular Microsoft Office Communicator documents, or class of documents, sought relating to Mr Miller and the matters in issue in the primary proceedings exist or have existed or as to the content or likely content of the documents.[16]

   3.The relevance of internal communications between ATO staff to any of the issues to be determined at trial had not been demonstrated.[17]

   4.The judge was not satisfied that the discovery sought was necessary for fairly disposing of the proceedings, or that any forensic benefit to be derived was proportionate to the cost and delay which would flow from requiring the Commissioner to give the discovery sought.[18]

   [15] Interlocutory Reasons [110] - [112], [139].

   [16] Interlocutory Reasons [113] - [131].

   [17] Interlocutory Reasons [132] - [138]; [139.2].

   [18] Interlocutory Reasons [139].

Primary judge's Final Orders decision

1. The trial of the primary proceedings took place on 2 March 2021. Mr Miller was self-represented by the time of the trial. The only evidence tendered at trial was two evidentiary certificates relating to the liability of ACIB and ACI,[19] and an affidavit of Yee Deng, an ATO employee.[20]  Mr Deng was briefly cross-examined by Mr Miller.[21]

   [19] Primary ts 76; exhibits 1 and 2.

   [20] Primary ts 82 - 84; exhibit 3.

   [21] Primary ts 84 - 87.

2. The primary judge reserved her decision after the hearing of submissions.  Judgment was delivered on 30 June 2021.  The judge ordered that judgment be entered for the Commissioner against Mr Miller in the claimed amount of $361,841 and awarded $87,079.76 in pre-judgment interest.  Mr Miller was ordered to pay the Commissioner's costs of the primary proceedings to be taxed if not agreed.  The primary judge published written reasons for making those orders.[22]

   [22] Deputy Commissioner of Taxation v Miller [No 2] [2021] WADC 65 (Final Orders Reasons); orders 1 and 2, 30 June 2021.

3. The primary judge was satisfied that the Commissioner had established Mr Miller's liability to pay directors' penalties in the claimed amount of $361,841 subject to the consideration of Mr Miller's pleaded defences.[23]

   [23] Final Orders Reasons [72] - [77].

4. The primary judge rejected Mr Miller's defence under s 269-35(2) of div 269 (see [6] above) on two independent bases:

   1.There was no evidence to support Mr Miller's defence that he took all reasonable steps to cause each of ACIB and ACI to comply with their obligations to pay the amounts withheld to the Commissioner.[24]

   2.In any event, the steps pleaded in the defence did not give rise to a defence under s 269-35(2) of div 269. The obligation of a director under s 269-15(2) is a continuing one that applies throughout the period commencing on the breach of the obligation to pay the PAYG withholding amounts on the due day and continuing until the expiry of the DPNs. As a consequence, any defence under s 269-35(2)(a) must cover the whole of that period. The 'steps' pleaded in Mr Miller's defence did not cover the whole period from the due day until expiry of the DPN.[25]

   [24] Final Orders Reasons [80].

   [25] Final Orders Reasons [81] - [82].

5. The primary judge held that Mr Miller's estoppel defence failed for two independent reasons:

   1.There was no evidence to support Mr Miller's estoppel claims in any of the forms advanced.[26]

   2.In any event, no conduct on the part of the Commissioner could operate as an estoppel against the operation of the Taxation Administration Act.[27]

   [26] Final Orders Reasons [90].

   [27] Final Orders Reasons [91] - [99].

6. The primary judge held that Mr Miller's defence that the companies had made certain payments against PAYG withholding amounts failed because there was no evidence that such payments had been made.[28]

   [28] Final Orders Reasons [101] - [102].

The appeal to this court

1. On 9 March 2021 (after the trial but while judgment was still reserved) Mr Miller instituted an appeal against the orders dismissing his interlocutory application (CACV 12 of 2021).  On 13 August 2021, Mr Miller instituted an appeal against the final orders (CACV 72 of 2021).  The appeals were consolidated on 16 August 2021.

2. Mr Miller relies on three grounds in the consolidated appeal.

3. Ground 1 contends that the primary judge erred in the exercise of her Honour's discretion to refuse Mr Miller leave to file late affidavit evidence.

4. Ground 2 contends that the primary judge erred in dismissing Mr Miller's application for discovery in relation to Microsoft Office Communicator records.

5. Ground 3 contends that the primary judge erred in finding that Mr Miller's pleaded defence under s 269-35(2) of div 269 failed as the pleaded steps did not cover the whole period from the due day until the expiry of the DPN.

6. Mr Miller does not seek to challenge the primary judge's conclusion that the Commissioner could not be estopped in the exercise of the Commissioner's statutory functions under the Taxation Administration Act.  As such, the estoppel defence can be put aside for the purposes of this appeal.

7. The Commissioner resists these grounds of appeal.  The Commissioner also advances two contentions as to why the appeal should be dismissed even if one or more of the grounds are established.

8. First, the Commissioner contends that it is not open to Mr Miller to challenge the interlocutory orders.  This is on the basis that Mr Miller waived or acquiesced in any error in the interlocutory decision by declining to bring an urgent appeal against the interlocutory orders and by participating in the trial.

9. Secondly, the Commissioner contends that any error in making the interlocutory orders could not have affected the result of the final judgment.

Can the appellant challenge interlocutory orders after final judgment?

1. We do not accept the Commissioner's contention that Mr Miller is precluded, by reason of waiver or acquiescence or otherwise, from challenging the interlocutory orders because final judgment has been delivered.  The legal position was summarised by this court in Durolek v Pier (WA) Pty Ltd [No 2],[29] by reference to the High Court's decision in Gerlach v Clifton Bricks Pty Ltd:[30]

   In contemporary times, where interlocutory appeals are commonplace, it might initially seem surprising that a litigant may appeal against a final judgment by challenging an earlier interlocutory order.  That is all the more so when a prompt interlocutory appeal could avoid a substantial evidentiary hearing.  There is, however, long‑standing authority - more recently confirmed in Gerlach v Clifton Bricks Pty Ltd - which unequivocally establishes the proposition that, in some circumstances, a party may challenge the correctness of a final judgment on the ground that an interlocutory decision was wrong.

   Kirby and Callinan JJ were in the minority in Gerlach.  However, their Honours came to a similar conclusion to the majority (Gaudron, McHugh and Hayne JJ) on the question of whether, on an appeal from a final judgment, an appellate court could correct an interlocutory order affecting the final result.  Kirby and Callinan JJ explained the historical position:

   It is an established rule of practice, not recent but dating back at least to the early decisions of the Privy Council on appeal from colonial courts, that objections to interlocutory orders will not be lost if not immediately prosecuted by an interlocutory application for leave to appeal.  Such complaints could be saved up to be raised in objection to the final judgment in the proceedings between the parties, provided the ground was still relevant to that judgment. ([44])

   The principle in Gerlach recognises that interlocutory orders may be made - either before or at trial - which affect parties' substantive rights.  To preclude challenge to such an order other than by interlocutory appeal against the order would be productive of unnecessary fragmentation and multiplication of proceedings.  For that reason an interlocutory order can be challenged in an appeal against the final judgment in a matter.  However, not every interlocutory order is susceptible to such challenge.  In Gerlach the majority endorsed a qualification.  On appeal from a final judgment an appellate court can only correct an interlocutory order 'which affected the final result'.

   (some citations omitted)

   [29] Durolek v Pier (WA) Pty Ltd [No 2] [2019] WASCA 138 [78] ‑ [80].

   [30] Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; (2002) 209 CLR 478.

1. Subject to showing that any error affected the final result, Mr Miller can challenge the correctness of the orders refusing his interlocutory applications, notwithstanding that final judgment has been delivered in the primary proceedings.

Ground 1: refusal of leave to file and adduce late affidavits

1. In our view, the primary judge was correct to refuse leave to file and adduce late affidavits, essentially for the reasons which her Honour gave.

2. Mr Miller advances a number of particulars of alleged express errors which the primary judge made in the exercise of her Honour's discretion.  Many of Mr Miller's submissions in support of this ground in substance appear to us to amount to no more than a complaint about the weight which the primary judge gave to certain factors, such as medical and financial impediments faced by Mr Miller. 

3. The strongest submission advanced is that there is no express reference in the Interlocutory Reasons as to the impact of a refusal of leave on Mr Miller's capacity to mount a defence, or any weighing of the prejudice to Mr Miller if leave was refused.  Counsel invited this court to infer that the primary judge made a material error of principle in failing to take account of this factor.

4. We would not draw the inference that the judge failed to consider the prejudice to Mr Miller's defence from the absence of express reference to this issue in the Interlocutory Reasons.  The nature of the defences was set out in the Interlocutory Reasons and it was obvious that they all depended upon Mr Miller adducing evidence in support of the defences.  We also take account of the fact that, consistently with the observations of the High Court in Aon,[31] the primary judge delivered judgment promptly.  The absence in oral reasons of any express reference to the obvious consequences of refusing leave does not lead us to infer that the primary judge failed to take that matter into account in exercising her Honour's discretion.

   [31] Aon [35], [46], [143], [146].

5. Further, even if we were persuaded that the primary judge made some material error, then on a re-exercise of the discretion we would also dismiss Mr Miller's application to file and adduce late affidavit evidence.

6. Court hearing days are a valuable, but limited, public resource.  That is particularly so in the case of a busy trial court such as the District Court.  It is even more particularly so given the long delays in bringing to trial matters, including criminal matters with accused persons kept in custody on remand, that have followed the COVID-19 pandemic.  The vacation of trial dates close to the date of trial represents a waste of that valuable public resource.  The hearing days will be lost and, in many cases, it will not be possible to bring on another trial at short notice to fill the space created by the vacation of a trial which has been listed for many months.

7. In the present case, four days had been set aside for the trial of the primary proceedings.  There must have been a high potential for the effective use of those days to be lost if the order which Mr Miller sought had been made.  Given the interlocutory application was heard on 19 February 2021, only five business days before the trial was to commence (taking account of a public holiday), it seems unlikely that another trial could be listed at such short notice.  That waste of public judicial resources would be in a context where earlier trial dates had already been vacated because of Mr Miller's failure to file his affidavits.

8. The timing of the interlocutory application also counts strongly against the grant of leave to file and adduce late affidavit evidence.  Mr Miller knew of the trial dates since they were set on 27 July 2020.  He did not file the application for leave to file and adduce late affidavit evidence until 5 February 2021, after the time for filing his affidavits had passed.  The fact that the application was made shortly prior to the listed trial dates increased the adverse impact of the grant of the application on public judicial resources, as it limited the opportunity to make other productive use of those dates if they were vacated.  There was no explanation for the delay in making the application.

9. Further, while refusal of the application would mean that Mr Miller would not be able to adduce evidence in support of any of his pleaded defences, it would not involve any denial of procedural fairness.  It is well established that procedural fairness does not require that a party be given an unlimited opportunity to present his or her case or defence.  What is required is that the parties are provided with a sufficient opportunity to present their cases.[32]  A party who is given a sufficient opportunity to present his or her case, and who fails to take advantage of that opportunity without reasonable cause, cannot complain that he or she has been denied procedural fairness because the court has declined to provide a further opportunity to do so.  

   [32] Aon [98], [102], [112].

10. Mr Miller had been given more than sufficient opportunity to prepare an affidavit setting out his evidence at trial.  The primary proceedings had been on foot since June 2017.  Mr Miller was on notice of the need to prepare an affidavit comprising his proposed evidence‑in‑chief since orders were made on 3 February 2020.  At the time of the hearing of the interlocutory application on 19 February 2021, he had been given over a year to do so from the time the order requiring an affidavit was made.

11. We agree with the primary judge's view that there was no adequate explanation for the failure to file an affidavit with the time required for the trial to proceed.  The evidence did not reveal that any substantial steps had been taken, or that any substantial progress had been made, towards the preparation of an affidavit.  Very little weight should be given to Mr Miller's description of his medical conditions in the absence of any supporting evidence of a medical practitioner as to the extent to which, and periods for which, those conditions incapacitated Mr Miller.  Further, the real reason for the lack of any apparent progress appears, from Mr Miller's supplementary affidavit, to be the lack of financial resources to fund the preparation of his defence.  This had resulted in Mr Miller instructing his lawyers to stop work over extensive periods.  While Mr Miller's medical issues may have contributed to his financial problems by limiting the remunerative work he could do, it was the lack of funds, rather than the adverse impact of medical treatments on his capacity to give instructions, which appears to have been the primary cause of the lack of progress.

12. There was no evidence in the material before the primary judge as to how long Mr Miller would require to prepare his affidavit.  Statements by Mr Miller's counsel as to a month adjournment of the trial being all that was required were not evidence and were conditioned by observations that counsel, who had a busy schedule, had only just been briefed and was just reading into the matter.[33]  There was no evidence that Mr Miller's financial position was about to change.  The material before the primary judge did not give any basis for confidence that, if Mr Miller's application were granted, he would be in a position to file an affidavit within a reasonable period.

    [33] Primary ts 4, 12, 25.

13. In all of these circumstances, in our view the proper exercise of the judicial discretion was to dismiss the application to file and adduce late affidavit evidence.  The grant of the application would inevitably result in a vacation of the hearing dates and consequent waste of public judicial resources as well as general prejudice to the Commissioner in the delay in resolution of the Commissioner's claim.  These considerations outweigh the self-inflicted prejudice suffered by Mr Miller as a result of his dilatory approach to the preparation of evidence in support of his defences over a period of more than a year.

Other matters

1. The failure of ground 1 means that the appeal must be dismissed even if the other issues were to be resolved in Mr Miller's favour.  His defence of the Commissioner's claim for penalties depended on Mr Miller adducing evidence in support of that defence.  His failure to comply with the orders requiring the filing of affidavits meant that he had deprived himself of the capacity to do so.  In the absence of any evidence in support of his defences, the Commissioner's claim was bound to succeed given its reliance on uncontroversial facts to establish Mr Miller's liability. 

2. Even if the primary judge erred in finding that there was an additional and independent reason for rejecting the pleaded defence under s 269‑35(2) of div 269, as alleged in ground 3, the final orders would not have been different. It is therefore unnecessary to resolve ground 3 in order to determine the appeal.

3. Nor can we see any basis on which the discovery orders sought by Mr Miller might have affected the final orders.  Mr Miller's appeal counsel conceded that, as a matter of practicality, if ground 1 failed then it was difficult to see how the failure to order further discovery could have affected the result.  In any event, in our view the primary judge was correct to refuse the application for discovery, essentially for the reasons which her Honour gave, and there is no merit in ground 2.

4. Given our conclusions in relation to ground 1, it is also unnecessary to resolve the Commissioner's contention that the decision to refuse Mr Miller leave to file and adduce later affidavits, if incorrect, could have made no difference to the final orders.

Orders

1. For the above reasons, we made the order dismissing the consolidated appeal at the conclusion of the hearing of the appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

EM

Associate to the Honourable Justice Mitchell

27 SEPTEMBER 2022