Muc v Deputy Commissioner of Taxation

[2008] NSWCA 84

New South Wales

Court of Appeal

CITATION:	Muc v Deputy Commissioner of Taxation [2008] NSWCA 84
HEARING DATE(S):	28 April 2008
JUDGMENT DATE:	28 April 2008
JUDGMENT OF:	Beazley JA at 1; Tobias JA at 10; McColl JA at 11
EX TEMPORE JUDGMENT DATE:	28 April 2008
DECISION:	1. Refuse leave to file the Amended Notice of Appeal 2. Dismiss the appeal 3. Order the appellant to pay the respondent's costs of the appeal.
CATCHWORDS:	APPEAL – natural justice – stay of execution - trial judge not required to grant relief where no application for relief made
LEGISLATION CITED:	Superannuation Guarantee (Administration) Act 1992, s 75(1)
CATEGORY:	Principal judgment
PARTIES:	Katarina Muc (Appellant) Deputy Commissioner of Taxation (Respondent)
FILE NUMBER(S):	CA 40153/07
COUNSEL:	A McQuillen (Appellant) R Quinn (Respondent)
SOLICITORS:	GH Healey & Co with Graeme R Jensen & Co (Appellant) Australian Government Solicitor (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 1777/06
LOWER COURT JUDICIAL OFFICER:	Johnstone DCJ
LOWER COURT DATE OF DECISION:	26 February 2007

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CA 40153/07

BEAZLEY JA
TOBIAS JA
McCOLL JA

Ex tempore 28 April 2008

Katarina Muc v Deputy Commissioner of Taxation

Judgment

1 BEAZLEY JA: There is before the Court an appeal from a decision of Judge Johnstone of the District Court given on 26 February 2007, in which his Honour entered a verdict in favour of the respondent for $167,986.05 in respect of a claim made by the respondent based upon an assessment issued pursuant to the provisions of the Superannuation Guarantee (Administration) Act 1992 (the Act). In the proceedings, the respondent had relied upon the provisions of s 75(1) of the Act to conclusively prove the debt that it said was owed by the appellant in respect of superannuation guarantee charges.

2 At the commencement of the hearing of the appeal, the appellant sought leave to file an Amended Notice of Appeal and to rely upon written submissions that had been received by the Court this morning. The purpose of the amendment was to rely upon a ground of appeal which, when distilled in argument by counsel for the appellant, was that the appellant had been denied procedural fairness in the failure of the trial judge to deal with her adjournment application and to receive into evidence the material the appellant wished to rely upon in support of that application.

3 During the course of hearing of the argument, it became apparent that although the appellant was advancing a case that she had been denied procedural fairness, there was in essence another ground of complaint, which was probably her essential complaint, namely, that the trial judge failed to grant a stay of execution of the judgment in circumstances where the appellant was asserting that she had paid nearly the whole of the superannuation contributions that she was required to pay as a matter of law.

4 The trial judge in fact dealt with the adjournment application at [10] of his judgment, when he stated that there was no purpose in granting an adjournment. His Honour had reached that conclusion because he had determined that pursuant to s 75(1) of the Act, the debt had been conclusively proved by the notice of assessment. The appellant’s solicitor had agreed during the course of argument before his Honour that the purpose of adducing evidence in support of the adjournment application, which was a report of an accountant, Mr Prior, which it was said would establish that nearly all of the superannuation payments had been made, was in fact to go behind the assessment (see the transcript of 26 February 2007, p 35, lines 54 to 56).

5 The appellant now concedes that s 75(1) has the conclusive effect as found by his Honour. Accordingly, there was no error in his Honour refusing the adjournment for the reason that he did, namely that no purpose could be served by any adjournment. The appellant goes on to contend, however, that his Honour should have realised that in circumstances where she claims she had paid the superannuation contributions, or the substantial portion of them, she would want a stay of execution until such time as she had had an opportunity to seek a review of the assessment through the review procedures provided under the taxation legislation. It was unclear from the discussion before his Honour whether such review had been sought at that time, although it was certainly indicated that it was intended to follow such a procedure.

6 This Court hears appeals from determinations which are made by trial judges, including any omission to determine applications that have been made. The application that was made before his Honour was for an adjournment so that the basis upon which the assessment had been issued could be challenged. For the reasons given by his Honour, that was not an available course and, accordingly, an adjournment was pointless. His Honour determined that matter and there was no error in the manner in which his Honour did so.

7 There was no application for a stay of execution before his Honour. His Honour was not required, therefore, to enter upon a consideration of the question of a stay of execution. It is not to the point to say that had his Honour received the report of Mr Prior, he would have understood that the appellant was asserting that she had paid the superannuation contributions as required by the due date and, therefore, should, of his own motion, have ordered the stay of execution. This submission needs only to be stated to be rejected.

8 For those reasons, it would be futile for this Court to entertain the Amended Notice of Appeal, including with the refinements which were made to it during the course of argument. No argument was addressed on the appeal in the form in which it was originally formulated and counsel conceded that the appeal against the determination of his Honour in respect of the conclusivity of the assessment could not succeed.

9 In the circumstances I would propose that the following orders be made:

1. Refuse leave to file the Amended Notice of Appeal;

2. Dismiss the appeal;

3. Order the appellant to pay the respondent’s costs of the appeal.

10 TOBIAS JA: I agree.

11 McCOLL JA: I also agree.

12 BEAZLEY JA: The orders of the Court are as I have proposed.

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