Ngaropo v Deputy Commissioner of Taxation

[2009] FMCA 955

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NGAROPO v DEPUTY COMMISSIONER OF TAXATION [2009] FMCA 955

BANKRUPTCY – Adjournment application – where applicant has not taken earlier steps to set aside judgment or seek a stay.

Bankruptcy Act 1966 (Cth)
Income Tax Assessment Act 1997 (Cth)

Applicant: PATRICK THOMAS NGAROPO

Respondent: DEPUTY COMMISSIONER OF TAXATION

File Number: PEG 97 of 2009

Judgment of: Raphael FM

Hearing date: 23 September 2009

Date of Last Submission: 23 September 2009

Delivered at: Perth

Delivered on: 23 September 2009

REPRESENTATION

Counsel for the Applicant: Mr. Jarman

Solicitors for the Applicant: Jarman McKenna

Counsel for the Respondent: Mr. Tsaknis

Solicitors for the Respondent: ATO Legal Services Branch

ORDERS

1. The application for an adjournment is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 97 of 2009

PATRICK THOMAS NGAROPO

Applicant

And

DEPUTY COMMISSIONER OF TAXATION

Respondent

REASONS FOR JUDGMENT

1. At the commencement of this hearing Mr Jarman, who appears for the applicant, has sought an adjournment of approximately 60 days.  He tells me that his client works out of Western Australia much of the time and he has not been able to give Mr Jarman full instructions that would enable Mr Jarman to bring this application to the best of his ability.  He tells me, and I accept, that the tax debt which is due relates to deductions from a scheme which was the subject of a product ruling which later became the subject of a more comprehensive taxation consideration as a result of later amendments to the Income Tax Assessment Act 1997 (Cth).

2. Mr Jarman tells me that on 11 September of this year an application to review the assessments, which were for the 2001 to 2003 tax years, was made to the Administrative Appeals Tribunal.  That itself requires leave from the AAT to make an application out of time.  I am unaware of the date upon which such an application has been set down for hearing.  Mr Jarman also says that today an application to set aside the District Court of Western Australia judgment upon which the bankruptcy notice is based has been made.  Mr Jarman said that he only received the applicant’s tax returns from him last week.

3. The respondent objects to an adjournment.  He says that there is a significant lack of evidence relating to the grounds upon which the adjournment is sought and with that I must agree.  Whilst I accept what Mr Jarman  has told me from the bar table, it is not really evidence and his own client has not sought to put those matters into evidence, by way of an affidavit upon which he could be cross-examined. 

4. I am disinclined to grant the adjournment because, to my mind, this applicant has had a very long time in which to raise the concerns that he has about these very old assessments and, to the extent that the assessments may not have been made as long ago as the years in question this would likely be because of delays in filing the tax returns.  I note that the applicant has taken no steps, prior to today, to set aside the District Court judgment, even if he may, like myself, believe that such an application would be hopeless, given the ability of the Commissioner to obtain judgment based upon the existence of assessment notices and conclusive certificates.  However, he could have obtained a stay of that judgment from a sympathetic District Court had he been able to convince that Court that he had an arguable case in the AAT review. But that was not the situation when the judgment was entered, because the review application had not then been made.  With respect to Mr Jarman, for whose assistance I am most grateful, I would have to say that the applicant appears to have brought these problems upon himself by failing to deal with the Commissioner at an earlier time.  The application for an adjournment is dismissed.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  1 October 2009