Sutton v Commissioner of Taxation

[1994] FCA 1110

JUDGMENT NO. .... ........ ...... 0 1 94- HH,W,,H

..
IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY )	No. NG 823 of 1993
GENERAL DIVISION	)

Between:  JOHN RIDLEY SUTTON

Applicant

OF AUSTlWLIA And: COMMISSIONER OF TAXATION

20 SEP 2001 Respondent

LIBRARY

T -

EINFELD J SYDNEY 7 SEPTEMBER 1994

The substantive matter before the court today is an application by John Ridley Sutton against the Commissioner of Taxation for what is effectively a review of certain notices purporting to be assessments under the Income Tax Assessment Act which, if valid and enforceable, would require the payment by Mr Sutton to the Commissioner in round figures of about $55,000. The applicant has filed a motion today in respect of this application. The motion has three substantive provisions: one, that the hearing for today be vacated; two, that it not be set down again until the High Court had dealt with the section 40 application; and three, that Hill J, who was to be the trial judge, disqualify himself from hearing the application. Hill J has today determined to disqualify himself, leaving the other two matters for resolution by me.

First is Mr Sutton's application for an adjournment of the	hearing. The hearing was fixed by Hill J on 26 August for today.
The application was dated and filed 29 October 1993 and for one reason or another has been awaiting hearing since that time. At an earlier stage his Honour ordered the applicant to file his affidavits in support of the application and I am informed that they have now been filed, albeit somewhat later than was ordered. Meanwhile, Mr Sutton has made an application to the High Court for the removal of the whole of this application into the High Court pursuant to section 40 of the Judiciary Act. This application was dated 12 April 1994 and has apparently been set down for hearing by the High Court on 14 October. His ground for the adjournment is primarily that if the Court proceeds with the current hearing as fixed by Hill J, the proceedings for removal into the High Court will be rendered useless.
Mr Sutton also raises in his affidavit in support of the motion the fact that the principal of the firm in which he works as an employed solicitor has recently taken seriously ill, as a consequence of which he now has a much heavier workload than was anticipated at the time when the hearing was fixed for today.
not had as much time to prepare the case as he would have wished In the circumstances Mr Sutton has informed the Court that he has
and I presume that it follows from that he is not as well prepared as he would have preferred. However, the adjournment application has to be looked at, not on the basis of the state of preparation of the application, but on its own merits.
A statement of claim was filed on 10 March 1994. It makes a number of very far reaching allegations about the purported