Sibir v Glenville

[2000] FCA 968

FEDERAL COURT OF AUSTRALIA

Sibir v Glenville [2000] FCA 968

PRACTICE AND PROCEDURE – unrepresented applicant seeking to file statement of claim – appropriate procedure where respondents seek summary dismissal.

Income Tax Assessment Act 1936 (Cth), ss 177, 185, 188.
Fair Trading Act 1987 (NSW).

Federal Court Rules, O 4 r 6; O 6 r 8; O 13 r 3.

ALEX SIBIR v DARREN GLENVILLE & ORS
N 413 of 2000

SACKVILLE J
20 JULY 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 413 OF 2000

BETWEEN:

ALEX SIBIR
APPLICANT

AND:

DARREN GLENVILLE
FIRST RESPONDENT

RICHARD CHAN
SECOND RESPONDENT

OHNMAR KHIN
THIRD RESPONDENT

RON THOMPSON
FOURTH RESPONDENT

JUDGE:

SACKVILLE J

DATE OF ORDER:

20 JULY 2000

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.Subject to par 2, the applicant is to be taken as having filed the statement of claim in these proceedings on 22 June 2000.

2.The respondents are to have leave, if so advised, to file a motion seeking orders striking out the statement of claim and dismissing the proceedings.

3.Any such motion and affidavits in support

(a)must be filed and served by 4 pm on 25 July 2000;

(b)may be made returnable at 9.30 am on 3 August 2000.

4.The respondents should file and serve written submissions in support of the relief sought in any motion filed and served in accordance with par 3 by 4 pm on 25 July 2000.

5.If any motion is filed and served in accordance with par 3, the applicant is

(a)to file and serve any affidavits in opposition to the motion; and

(b)to file and serve written submissions in opposition to the motion,

by 4 pm on 30 July 2000.

6.The proceedings stand over to 3 August 2000 at 9.30 am.

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	N 413 OF 2000

BETWEEN:

ALEX SIBIR
APPLICANT

AND:

DARREN GLENVILLE
FIRST RESPONDENT

RICHARD CHAN
SECOND RESPONDENT

OHNMAR KHIN
THIRD RESPONDENT

RON THOMPSON
FOURTH RESPONDENT

JUDGE:	SACKVILLE J
DATE:	20 JULY 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. These proceedings arise out of a notice of assessment issued under the Income Tax Assessment Act 1936 (Cth) as long ago as 8 August 1990. The notice of assessment (the “1989 assessment”) was issued to the applicant in respect of the financial year ending 30 June 1989.

2. The applicant, who is not legally represented, instituted proceedings in this Court on 27 April 2000.  The application filed on that date named the “Australian Taxation Office” as the respondent.  The relief sought in the application included declarations that the respondent had engaged in misleading or deceptive conduct by reason of advice given by its staff, specifically in relation to the amounts of tax payable by the applicant for the 1989 financial year.

3. Although the application referred to an accompanying statement of claim, no document designated as such was filed at the time.  Nor was the application accompanied by an affidavit.  It was accompanied, however, by a bundle of copy documents together with a document headed “claim for interlocutory relief”.  The latter document may have been intended by the applicant to constitute a statement of claim or, at least, to set out the nature of his claim.  The Federal Court Rules (“FCR”) O 4 r 6(1), require an applicant to file and serve with the application either an affidavit in the prescribed form or a statement of claim, whichever is appropriate.

4. The first return date for the application was 16 June 2000.  On that date, Mr Williams was granted leave to appear for the Commissioner of Taxation.  Mr Williams pointed out that the Australian Taxation Office was not an entity capable of being sued, and that, therefore, the proceedings were not properly constituted.  Mr Williams also submitted that the application, when read with the additional documentation, did not disclose any reasonable cause of action.  The latter submission was not developed in detail.

5. Neither the Commissioner nor the Australian Taxation Office filed or foreshadowed a motion seeking to strike out the application or to obtain an order that the proceedings be summarily dismissed.  Rather, Mr Williams foreshadowed that any application for leave to amend the proceedings to join other parties would be opposed.  In the event, a timetable was set, providing for the applicant to file a motion seeking leave to amend his application and to file a statement of claim.  The timetable included provision for any party wishing to oppose the grant of leave to file written submissions.

6. In compliance with the timetable, the applicant filed a motion.  The respondents to the motion were identified as four persons who were apparently officers within the Australian Taxation Office at the time the 1989 assessment issued to the applicant. The motion sought the following orders:

   “1.To proceed with the action against the four Respondents i.e. The Public Service Officers, by the submission of Statement of Claim and Affidavit registered on 22 June 2000.

   2.Order for the Australian Taxation Office Summons No 519/1999 in the Parramatta District Court to be considered under a Motion of Stay and be set off against the Statement of Claim herein, that is to be dealt with and considered by the Federal Court of Australia.”

7. The reference to the District Court proceedings is to action taken in that Court by the Commissioner to recover tax allegedly due by the applicant.

8. The motion filed in this Court was accompanied by an affidavit sworn by the applicant.  It was also accompanied by a statement of claim that is recorded in the Court file as having been filed in the Registry on 22 June 2000.  The statement of claim records, inaccurately, that it was filed pursuant to leave granted by me on 16 June 2000.  In any event, it names the four officers as respondents and incorporates some of the material included in the statement of the applicant’s case accompanying the original application.

9. The statement of claim is as follows:

   “1.The applicant is a professional architect for over 30 years with a Degree from University of New South Wales and a Diploma in Structural Engineering and Design from the British Institute of Technology.  The Applicant has a clean record and no convictions have ever been recorded against him in his business endeavours.

   The applicant is entitled to sue in the business name of Alex Sabir  Architect as registered by the Board of Architects of NSW, Registration No 2961.

   2.At all material times since 1989 the applicant and the respondents have engaged in verbal and written correspondence concerning the applicant’s business tax assessment.

   3.The respondents are public service officers acting on behalf of the Australian Taxation Office Parramatta in the state of New South Wales.  Under the Crown Proceedings Act they are each capable of being sued by their individual names and are liable for their own actions on behalf of the Australian Taxation Office.

   4.The applicant was entitled to a review of his tax for year ending 30 June 1989 as five letters were submitted within the 60 days time limitation as under the Income Tax Assessment Act 1936 and under the Income Regulation Section 207.

   5.The respondents engaged in malicious acts of threats and harassment causing psychological emotional stress aggravating other related health problems to the applicant in their attempts to collect the tax for 1989.

   6.The applicant declares that all the tax returns are up to date, except 1989 which is in dispute.  Also, the tax assessment dated 17 August 1998 which included the 1989 period is disputed as $38,471 in tax credits should have been recorded.

   7.The Affidavit made by the Deponent Ohnmar Khin from the Australian Taxation Office in the District Court of Australia No 519/1999 and dated 8 June 2000 includes Notice of Assessment for year ending June 1988.  As I have been in the middle stages of bankruptcy until October 1989, it seems to be unfair that my claim for office losses of $244,000 were reduced to $138,328 by Mr Darren Glenville, on my assessment for the tax year ending June 1989.  A few weeks later I received a taxation bill for $44,687.57 dated 8 August 1990 then another statement for $18,424.79 dated 8 August 1990.  On the following week I received a further tax assessment of $17,389.57 dated 15 August 1990.

   In the latest assessment dated 17 August 1998 as included in my registered Application refer to Appendix “D”, states that on 19 September 1990 the debit was $18,424.79 and a credit of $18,421.79 on 15 August 1990 with a resultant debit of $3.00 only.  There is much confusion in all these assessment.  Since then a total of $37,771.01 in credits was made and not $27,990.01 as stated by the Australian Taxation Office.

   8.The applicant declares that due to the problems encountered over this matter, that severe and prolonged depression causing a build up of severe anxiety and stress/tension etc has been suffered by the applicant and he was not able to carry out his business duties effectively.  Effective loss of productivity is estimated at 55%.  Also the closure of four offices due to the harassment and threats and letters received from Australian Taxation Officers (respondents) caused a great deal of goodwill losses.

   9.The total claim for damages is estimated at $1,068,717.00 less any amount due for Tax for 1989 as determined by the Federal Court of Australia.

   Particulars: Refer to details as set out in the Application dated and registered in the Federal Court of Australia on 27 April 2000 No N413 of 2000.

10. The return date allocated to the applicant’s motion was 14 July 2000.  On that date, Mr Williams again sought leave to appear for the Commissioner of Taxation, although he said that he had instructions, if necessary, to appear for the four persons named as respondents in the statement of claim (to whom I shall refer as “the respondents”).  Mr Williams submitted that par 1 of the applicant’s motion should be treated as an application, pursuant to FCR O 6 r 8(1), that the respondents be added as parties to the proceedings.  Alternatively, he submitted that par 1 of the motion should be treated as an application for leave to file an amended statement of claim.

11. Mr Williams argued that leave should not be granted to the applicant, either to add the respondents as parties or to amend the statement of claim.  Mr Williams contended that the applicant’s claims were clearly misconceived and that any attempt by him to reformulate his claims was doomed to failure.  Mr Williams pointed out that the applicant’s own evidence showed that, although he had been in correspondence with the Australian Taxation Office shortly after the 1989 assessment was issued, he had not lodged an objection in writing against the assessment within the sixty day period granted by the legislation and thus had never validly objected to it (see the Income Tax Assessment Act 1936 (Cth) (“ITAA Act”), s 185(1), as it stood in 1990). Nor had the applicant ever requested the Commissioner to treat an objection made out of time as having been lodged within the sixty day period (see ITAA Act s 188, as it stood in 1990). It inevitably followed that the 1989 assessment, if produced in any proceedings, would be conclusive evidence of the due making of the assessment and that the amount and all the particulars of the assessment were correct (ITAA Act, s 177(1)).

12. Mr Williams further submitted that par 2 of the applicant’s motion was also misconceived.  As the applicant had explained, par 2 was intended to seek an order from this Court staying the District Court proceedings.  Mr Williams contended that, even if this Court had jurisdiction to make such an order, there was no conceivable basis for doing so.

13. Mr Williams invited me to dismiss the motion and, in the absence of any proper parties to the principal proceedings, to dismiss the application.  It is fair to say that the argument on 14 July 2000 proceeded within the framework established by Mr Williams’ submission.

14. Upon reflection, I do not think that this is a satisfactory way in which to approach the proceedings.  Like many cases involving unrepresented litigants, this one has been attended by procedural irregularities, not all of them the applicant’s responsibility. It is far from clear, for example, that the applicant required leave to file a statement of claim or (depending upon the status of the documents filed with the original application) an amended statement of claim: see FCR O 13 r 3(1) (providing that a party may, without leave, amend any pleading of his or her at any time before the pleadings are closed).  I find it difficult to characterise par 1 of the applicant’s motion as an application pursuant to FCR O 6 r 8 to add parties to the proceedings.  In any event, it does not seem to me to be appropriate to contemplate dismissing the proceedings without the respondents (or some other person with standing) having filed a motion for summary dismissal, accompanied by an affidavit in appropriate form.

15. It must be said that there are obviously serious difficulties with the statement of claim in its present form.  The allegation of misleading and deceptive conduct, for example, is not accompanied by a pleading of the material facts that would enable the respondents to understand the case sought to be made against them.  Insofar as the applicant intends to invoke the Fair Trading Act 1987 (NSW), no allegation is made (and perhaps cannot be made) that any relevant conduct took place in trade or commerce. Similarly, allegations of “malicious acts of threats and harassment” are not accompanied by the pleading of material facts that might support such a serious allegation. Insofar as the applicant intends to challenge the 1989 assessment, it is not readily apparent how he can do so in the absence of evidence that a timely objection in writing was lodged. These deficiencies may well be sufficient to warrant striking out of the statement of claim. There may also be grounds to deny the applicant an opportunity to replead, although I do not wish to express any view on that question at this stage.

16. So far as par 2 of the applicant’s motion is concerned, I am presently unable to discern any basis upon which this Court might properly stay the District Court proceedings.

17. I think the most appropriate course is to ensure that the issues the parties wish to raise are properly before the Court. In that regard, I take into account the fact that the applicant is unrepresented.  I think he should be taken to have filed in the Registry the statement of claim on which he now relies (and which is recorded as having been filed on 22 June 2000).  This should be without prejudice to the respondents’ entitlement, if so advised, to move the Court to strike out the statement of claim and dismiss the proceedings. If the respondents file such a motion, I shall relist the matter to deal with it and to determine the appropriate orders to be made in respect of the applicant’s motion. I shall, of course, provide an opportunity for the applicant to file evidence and to make submissions in opposition to any such motion filed by the respondents.

18. The orders I propose to make are as follows:

    1.   Subject to par 2, the applicant is to be taken as having filed the statement of claim in these proceedings on 22 June 2000.

    2.   The respondents are to have leave, if so advised, to file a motion seeking orders striking out the statement of claim and dismissing the proceedings.

    3.   Any such motion and affidavits in support

    (a)    must be filed and served by 4 pm on 25 July 2000;

    (b)   may be made returnable at 9.30 am on 3 August 2000.

    4.   The respondents should file and serve written submissions in support of the relief sought in any motion filed and served in accordance with par 3 by 4 pm on 25 July 2000.

    5.   If any motion is filed and served in accordance with par 3, the applicant is

    (a)    to file and serve any affidavits in opposition to the motion;

    (b)   to file and serve written submissions in opposition to the motion,

    by 4 pm on 30 July 2000.

    6.   The proceedings stand over to 3 August 2000 at 9.30 am.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate:

Dated:             20 July 2000

The Applicant appeared in person.

Counsel for the respondents:	Mr N J Williams
Solicitor for the respondents:	Australian Government Solicitor
Date of Hearing:	14 July 2000
Date of Judgment:	20 July 2000