Owen v Taxation, Deputy Commissioner of

[1995] QCA 185

IN THE COURT OF APPEAL	[1995] QCA 185
SUPREME COURT OF QUEENSLAND

Appeal No. 233 of 1994

Brisbane

[Owen v. Deputy Commissioner of Taxation]

BETWEEN:

RONALD OWEN

Appellant

AND:

THE DEPUTY COMMISSIONER OF TAXATION

Respondent

Pincus J.A. Davies J.A. Moynihan J.

Judgment delivered 16/05/1995

Judgment of the Court

APPEAL DISMISSED WITH COSTS

CATCHWORDS:	TAXATION - appeal to set aside summary judgment - appellant in person - "guilty of owing a debt" - certificates pursuant to s.10(3)(b) of Sales Tax Procedure Act 1934 - s.115(5) Sales Tax Assessment Act 1992 - District Court Rules 153(b) and (c) - Re Skyring - s.5.1(ii), (xii), (xiii) Commonwealth Constitution
Counsel:	Appellant appeared for self Mr. P. E. Hack for the respondent
Solicitors:	Appellant appeared for self Deputy Commissioner of Taxation for the respondent
Hearing Date:	2 May 1995

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 233 of 1994

Brisbane

Before Pincus J.A. Davies J.A. Moynihan J.

[Owen v. Deputy Commissioner of Taxation]

BETWEEN:

RONALD OWEN

Appellant

AND:

THE DEPUTY COMMISSIONER OF TAXATION

Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered the 16th day of May 1995

The respondent obtained summary judgment against the appellant in the amount of

$44,229.03, together with costs. The appellant, who appeared in person seeks to have the

judgment set aside on a number of bases.

First the appellant complained that the Judge below "presumed" that he was "guilty

of owing a debt" by acting on affidavits by the respondent's servants or agents that the debt

was owed. The Judge acted on certificates under the hand of the Deputy Commissioner

of Taxation which were received in evidence as a consequence of their being exhibited to

an affidavit. By virtue of s.10(3)(b) of the Sales Procedure Act 1934 and S.116(5) of the Sales Tax Assessment Act 1992, the certificates were prima facie evidence that the sum

specified in the certificate was due and payable by the person named in it. The effect of

the certificates, the other material placed before the Judge below, and of District Court

Rule 153(b) and (c) was then to require the appellant to satisfy the judge that he had a good

defence on the merits. The specific provisions identified above are not met by the citation

of general propositions as to burden of proof in civil actions such as are contained in

Walker and Walker, The English Legal System Sixth Edition, which are referred to by the

appellant.

It should be mentioned that the amount in respect of which judgment was entered

was in fact less than claimed by the plaintiff. That is explained by the fact that the

respondent accepted that it could not show that a demand had been made for an amount

of $11,735.97 from which it was accepted as arguable that the appellant had been

released from payment.

A second argument advanced by the appellant was as to the constitutional validity

of legislative provision as to the means of exchange to be used to gather taxes. This was

founded on a view based on the introductory words of S.51 of the Constitution that the

power thereby conferred is expressly subject to the Constitution and on placita (xii) and

(xiii) of S.51.

The argument in essence is that what is in circulation as currency is not authorised

by law and does not constitute legal tender and that bank-generated credit could not be

taxed. Notwithstanding the applicant's protestations to the contrary, these arguments have

been rejected in this and other courts on numerous occasions for reasons which are

conveniently to be found in Re Skyring (1994) 64 A.L.J.R. 619.

Thirdly, the appellant argued to the effect that the Constitution did not authorise the
Commonwealth to compel citizens to discharge the obligations inherent in complying with,

in this particular case, the Sales Tax Procedure Act 1934 and the Sales Tax Assessment

Act 1992. The appellant argued that this point had not been dealt with adversely to him in

any of the cases bearing Mr Skyring's name. However, in dismissing an appeal against

the decision of Deane J in Re Skyring's application (no. 2) (1985) 59 A.L.J.R. 561 the Full

Court of the High Court said:-

"... the power conferred upon the Commonwealth Parliament by S.51(ii) of the Constitution to legislate with respect to taxation extends to the imposition of taxation and its collection, even though it has the effect of requiring the person on whom taxation is levied to pay the tax out of property which he owns".

The position is no different with respect to the matters complained of by the appellant in this

case. In other words the power conferred on the Commonwealth Parliament by S.51(ii) of

the Constitution in extending the imposition of taxation and its collection is sufficient to

authorise what is complained of by the appellant.

The fact that Mr Skyring may be endeavouring to pursue further in the High Court the

lines of argument which have become somewhat identified with his name does not afford

the applicant any comfort. It does not detract from the weight of authorities against him or

the validity of the arguments reflected in those authorities.

Finally, the appellant complained about the course of the proceedings before the

Judge below. The essence of his complaint seems to be that the Judge played too active

a role in the proceedings and that counsel for the respondent below did not play a

sufficiently active part. The likely explanation is in so far as that occurred it reflects a

position that the law was well established and was against what was contended for by the

appellant and that that was appreciated by Judge and counsel. In any event it does not

emerge that anything occurred providing a basis for intervention by this court.

In the event the appeal must be dismissed with costs.