Palmer v Deputy Commissioner of Taxation

[2000] FCA 539

FEDERAL COURT OF AUSTRALIA
Palmer v Deputy Commissioner of Taxation [2000] FCA 539

MICHAEL GEORGE PALMER v DEPUTY COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA
N8401 of 1999

WILCOX J
SYDNEY
18 APRIL 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N8401 of 1999

BETWEEN:	MICHAEL GEORGE PALMER Applicant
AND:	DEPUTY COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA Respondent
JUDGE:	WILCOX J
DATE OF ORDER:	18 APRIL 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application to set aside the bankruptcy notice be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N8401 of 1999

BETWEEN:	MICHAEL GEORGE PALMER Applicant
AND:	DEPUTY COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA Respondent

JUDGE:	WILCOX J
DATE:	18 APRIL 2000
PLACE:	SYDNEY

EXTEMPORE REASONS FOR JUDGMENT

1. WILCOX J: This is an application to set aside a bankruptcy notice issued by the Deputy Commissioner of Taxation against Michael George Palmer.  The bankruptcy notice follows the prescribed form  and contains para 10 in the following words:

   “10. The Federal Court Registry for your State or Territory is located at Federal Court of Australia, Queensland District Registry, Level 6, Commonwealth Law Courts, 119 North Quay, Brisbane, Queensland 4000”. 

   This is a correct statement of the address of the Queensland District Registry of this Court.

2. The address ascribed to Mr Palmer in the bankruptcy notice is 15 Monte Carlo Avenue, Surfers Paradise, Queensland 4217.  However, it appeared from evidence submitted to Deputy Registrar Baldwin, a Deputy District Registrar of the Court based in Brisbane, that it had not proved possible to serve the bankruptcy notice upon Mr Palmer at that address. 

3. It further appeared that attempts had been made to serve him at various other locations in Queensland, predominantly in the Brisbane area; however, without success.  There was material to indicate an association between Mr Palmer and an address identified as 2/93 Langshaw Street, New Farm 4005.  New Farm is a suburb of Brisbane.  There was also evidence to indicate that Mr Palmer occasionally visited premises at 5/166 Ramsgate Avenue, Bondi Beach, New South Wales.  The evidence suggested this is the home of his son. 

4. In the event, Deputy Registrar Baldwin made an order for substituted service in the following terms:

   “2(a)by personally effecting service to Bankruptcy Notice QN548/98 together with letters dated 23 June 1999 and 11 January 1999 from ITSA extending the period within which the Bankruptcy Notice can be served and a sealed copy of this order upon a person over the age of 16 years at Unit 2,93 Langshaw Street, New Farm in the State of Queensland.

   (b)by posting copy of the documents referred to in paragraph 2(a) addressed to the debtor at Unit 2,93 Langshaw Street, New Farm in the State of Queensland.

   c)by posting copy of the documents referred to in paragraph 2(a) addressed to the debtor at Unit 5,166 Ramsgate Avenue, Bondi Beach in the State of New South Wales.”

5. The evidence before me is that each of these steps was taken.  No point arises about compliance with the order.  The submission by Mr Sullivan, on behalf of the applicant, is that the bankruptcy notice was defective because it stated an address of the Court otherwise than in the State or Territory of the addressee of the bankruptcy notice.  In support of that submission, Mr Sullivan referred to a decision of Burchett J in Hilti (Australia) Pty Limited v Millard [1997] FCA 1131. In that case Burchett J held to be invalid a bankruptcy notice that was addressed to a debtor resident in New South Wales but which gave, as the address of the relevant Federal Court Registry, the address of the Federal Court Registry in Adelaide.

6. Hilti is clearly distinguishable from the present case.  It appears to have been common ground in that case that the debtor was at all material times resident in New South Wales; it was therefore obviously incorrect for the bankruptcy notice to assert that the address of the Federal Court Registry in the debtor’s State or Territory was located in Adelaide.  In the present case no evidence has been filed by, or on behalf of, Mr Palmer giving any information as to his place of residence.  The evidence before the Court suggests his normal place of abode is in Queensland, although it leaves uncertain exactly where he resides in Queensland.  It seems to me it would have been incorrect for the bankruptcy notice to identify as the appropriate registry the New South Wales Registry.  It has to be borne in mind that the order for substituted service required two steps involving service in Queensland and only one in New South Wales.

7. The critical point must be whether or not it is incorrect to assert that the relevant registry is the Queensland Registry.  Particularly in the absence of any evidence from Mr Palmer to suggest he is not resident in Queensland, it seems to me impossible to give effect to the claim made on his behalf. 

8. The application must be dismissed with costs.  I so order.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:             18 April 2000

Solicitor for the Applicant:	K J Minotti & Company
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	18 April 2000
Date of Judgment:	18 April 2000