Money Tree MGNT SVS P/L v DEP Comm of Taxation (No 6) No. Scgrg-99-837
[2000] SASC 315
•1 September 2000
MONEY TREE MANAGEMENT SERVICES PTY LTD & ANOR v DEPUTY COMMISSIONER OF TAXATION (No 6)
[2000] SASC 315
Civil
1................ DEBELLE J...... On 1 March 2000 the Chief Justice dismissed an application by Money Tree Management Services Pty Ltd (“Money Tree”) for an order setting aside a demand by the respondent, Deputy Commissioner of Taxation, pursuant to s 459E of the Corporations Law for payment of a debt due to the Commissioner for income tax, penalty, and penalty interest. Speaking very broadly, Money Tree had contended that both the Income Tax Assessment Act and the appointment of the Deputy Commissioner of Taxation were invalid. The Chief Justice rejected all of the contentions advanced on behalf of Money Tree.
In addition, the Chief Justice made an order that Money Tree pay the Commissioner’s costs on an indemnity basis. The order was made on the footing that it should have been clear to Money Tree, or at least to its advisers, that the submissions were manifestly untenable and that there was no prospect of the proceedings being successful. The Chief Justice published reasons: Money Tree Management Services Pty Ltd v Deputy Commissioner of Taxation [2000] SASC 54.
On 6 December 1999 the Commissioner had applied, among other things, to join as a party to the action an organisation called Institute of Taxation Research Pty Ltd (“ITR”). On 20 March 2000 the Chief Justice made an order joining ITR as a party and ordered it to pay to the Commissioner his costs on an indemnity basis: Money Tree Management Services Pty Ltd v Deputy Commissioner of Taxation (No 2) (2000) 207 LSJS 287.
On 4 April 2000, the solicitors for ITR filed a notice of appeal against the Chief Justice’s order made on 20 March. ITR has failed to set the appeal down for hearing and has failed to prepare an appeal book. In the result, the solicitor for the Commissioner assumed the conduct of the appeal and has prepared an appeal book.
On 1 August 2000 the Commissioner’s solicitor sent by facsimile transmission a letter to the solicitor for ITR stating that his client wished to set the appeal down for hearing. In that letter, he said that he had prepared the appeal book. He enclosed in the letter an index to the appeal book. He also enclosed a certificate of accuracy and asked that it be signed. On 7 August the Commissioner’s solicitor sent another letter, again by facsimile transmission, asking for the certificate of accuracy to be signed. The letter went on to state that, if the solicitor for ITR did not respond by 5 pm on 8 August, the Commissioner would seek to file the appeal book without a certificate of accuracy. There was no response from the solicitor for ITR. The Commissioner now makes his application for leave to file the appeal book without the certificate of accuracy.
The index has been settled by this Court’s appeals clerk. I have perused it. I am satisfied it is complete. The issues in this appeal should be promptly determined. It is clear that ITR has been dilatory in the prosecution of the appeal, having taken no step in it for some four months. ITR has not set the appeal down for hearing. ITR failed to respond to reasonable requests from the Commissioner’s solicitor and in all the circumstances it is appropriate to grant the Commissioner’s application.
For these reasons there will be orders as follows:
Granting dispensation to the respondent from the obligation to file a certificate of accuracy with its appeal book in relation to the appeal dated 4 April 2000 instituted by the Institute of Taxation Research Pty Ltd.
That the respondent have his costs of this application in any event.
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