Taxation, Deputy Commissioner v Cooney

[2004] QDC 478

[2004] QDC 478

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 94 of 2003

DEPUTY COMMISSIONER OF TAXATION	Plaintiff
and
DENIS PATRICK COONEY	Defendant

SOUTHPORT

..DATE 29/11/2004

ORDER

CATCHWORDS: Uniform Civil Procedure Rule 117 - order made declaring service effected where service documents were anonymously returned to plaintiff accompanied by assertion wrong person had been served, at wrong address - Court satisfied defendant had relocated to the address of service, and that he was the person who fled on ascertaining the process server's errand, having previously acknowledged he was the defendant.

HIS HONOUR: This is an application made by the plaintiff pursuant to Rule 117 of the UCPR for the Court's decision that service of the claim and statement of claim upon the defendant has been effected. There is an alternative application for a substituted service under Rule 116. However, as the applicant's representative, appearing pursuant to section 15 of the Tax Administration Act 1953, says, the history of the matter is such that it is only to be anticipated that the defendant will do whatever he can to ensure that any means of substituted service the Court may approve would prove unavailing.

The claim is in respect of income tax.  The last address of the defendant, so far as communications from him to the plaintiff are concerned, is 288/80 K P McGrath Drive, Elanora.  That is also the address provided by him for purposes of his driving licence which I am informed is currently suspended, presumably supplied at a time when he was living there.

There is a wealth of material indicating that the defendant's new address is 1/8 Dandaloo Drive, Currumbin, where Mr McDonald, on the 7th of September this year, succeeded in effecting service, according to his affidavit, to the extent of obtaining an acknowledgement from a male person that he was Denis Patrick Cooney.  That person then disappeared by running up a staircase upon being told by Mr McDonald the nature of the purpose of Mr McDonald's attendance. 

Some time afterwards, the plaintiff received an unsigned communication from some anonymous person returning what Mr McDonald had ultimately served by sticking up on the door of the relevant premises.  It reads, "I found these papers on the door of my home.  They do not belong to me.  My name is not Denis Patrick Cooney, and the address here is not 288/80 The Pines, Elanora, so I am posting these papers back to you as they look important and legal."

The proposition that the name is wrong gains some support from the electricity account in respect of the premises being in the name of "Dennis Kuhney.  Date of birth, 10.1.51", whereas the defendant's name, although pronounced identically, is spelt differently.  It is understood that his true date of birth is 1.10.51.  Apart from the electricity account details, everything else points to the plaintiff having located the right man. 

The relevant searches and/or information come from the Residential Tenancies Authority, Telstra, and Australia Post.

Miss Chataway tells me that she recalls a similar matter before Moynihan J in the Supreme Court involving an elusive taxpayer called Patrick D Baker who had similarly returned documents. 

I may say that the success scored by Mr McDonald was preceded by unsuccessful attempts of another process server, Mr Barnes, to effect the same service.
I am convinced that the documents left by Mr McDonald came into possession of the defendant on the 7th of September 2004, and in the circumstances, consider this is a suitable case for the use of Rule 117.

...

HIS HONOUR:   The Court's order is as follows:

Upon the undertaking of the plaintiff by his representative to include by way of courtesy further copies of the Claim and Statement of Claim with the copy of this order referred to herein.

The order of the Court is that:

1. The Claim and Statement of Claim number 94 of 2003 were sufficiently served by Peter Alexander McDonald on behalf of the plaintiff on the defendant on 7 September 2004.

1. A copy of this order be sent by ordinary post to Denis Patrick Cooney at:

(a)  1/8 Dandaloo Drive, Currumbin, Queensland, 4223 and

(b)The Pines, 288/80 K Police McGrath Drive, Elanora, Queensland, 4221.

1. Costs of the applicant be reserved.

MISS CHATAWAY:  Your Honour,  I should probably draw your attention that the claim is not only with respect to income tax but also running a balance account deficit debt.  You made reference to it being for a - in respect of income tax.  It is also in respect of a balance account deficit debt as well. 

The running balance account deficit debt provisions are a special part of the Act where basically the Commissioner establishes an account, and for obligations of Pay As You Go withholding, or Goods and Services Tax, the primary tax debt liabilities get allocated to that account, and it is a running balance account, so when it's not paid, and it's in deficit, general interest charge accrues on that account, and he also has - that's a debt in its own right.  It is self-assessed.  It's prima facie evidence unlike conclusive evidence of income tax.

HIS HONOUR:  All right.  Can you tell me what the split-up is?

MISS CHATAWAY:  I can draw your attention - the income tax debt as at the 11th of November 2003 was $56,779.48, whereas the running balance account deficit debt, your Honour, is only about $6,000.

HIS HONOUR:  Well, that will appear in the transcript.

Order as per draft.

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