Deputy Commissioner of Taxation v Acimovic [2016] QDC 244

DISTRICT COURT OF QUEENSLAND CITATION: Deputy Commissioner of Taxation v Acimovic [2016] QDC 244 PARTIES: DEPUTY COMMISSIONER OF TAXATION (plaintiff) v MILAN JOHN ACIMOVIC (defendant) FILE NO/S: BD3076/2014 DIVISION: PROCEEDING: Application ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 28 September 2016 DELIVERED AT: Brisbane HEARING DATE: (Application without oral hearing) JUDGE: McGill SC, DCJ ORDER: Order that the consent order dated 5 May 2016 signed by the registrar under r 666 be varied so as to substitute, for the introductory words and paragraphs 1 and 2 of that order, the following: “The judgment of the court, by consent, is that: 1. The defendant pay the plaintiff $612,103.23 in respect of the whole of the plaintiff’s claim.” No order as to costs. CATCHWORDS: PRACTICE – Summary judgment – form of order – should not refer to entry of judgment – power to amend. UCPR r 292(1). COUNSEL: (Counsel not heard) SOLICITORS: ATO Review and Dispute Resolution for the plaintiff The defendant was acting in person [1] This matter came before me as an application without an oral hearing, made by the plaintiff, to amend a consent order made by a registrar pursuant to r 666 on 5 May 2016. The order made by the registrar was defective, though made in accordance with the request made to the registrar, but the plaintiff’s proposal to rectify the deficiency does not go far enough, for reasons which I propose to explain. -- 1 of 5 -- 2 Background [2] By the claimant’s statement of claim filed 11 August 2014 the plaintiff sought an amount of over $500,000 from the defendant as a debt due pursuant to the Taxation Administration Act 1953. On 16 January 2015 the defendant filed a notice of intention to defend and a defence, which were prepared without the benefit of legal advice. The latter set out an outline of the defence, and did not comply with the ordinary rules about pleadings. In response on 12 May 2015 the plaintiff filed an application for summary judgment under UCPR r 292.1 Evidently negotiations proceeded between the parties, and that application was adjourned from time to time. [3] On 28 April 2016 a request for a consent order of registrar was filed, apparently signed by a duly authorised delegate of the Commissioner of Taxation, and the defendant personally, seeking an order in terms of “the attached draft order”. The attached draft order did not identify the application for summary judgment as the initiating document, but simply referred to the claim and statement of claim and the request for a consent order. If the parties were seeking that the registrar make an order by consent on the application for summary judgment, the initiating document in the order ought to have been identified as the application filed 12 May 2015.2 It is disconcerting that that deficiency was evidently not picked up by the registrar who gave judgment, because it is repeated in the formal order.3 [4] The terms of the order sought by consent in the draft order were as follows: “1. That judgment be entered in favour of the plaintiff against the defendant pursuant to r 666 of the Uniform Civil Procedure Rules 1999 in the claim amount of $584,285.78 less the amount of any payments made by the defendant or credits applied to this amount by the plaintiff plus general interest charge calculated on the claim amount to the date of judgment. 2. That the affidavit of a duly authorised officer of the plaintiff be shall be [sic] evidence of the amount due and payable as at the date of judgment. 3. There be no order for costs.” [5] An order in those terms was not appropriate as a response to an application under r 292, and therefore an order in those terms could not properly be made pursuant to r 666. It is not appropriate, in response to an application for summary judgment under r 292, to order that “judgment be entered in favour of the plaintiff against the defendant” for any particular amount. There is no mechanism under the UCPR for entry of judgment by the registry in response to an order made on an application under that rule, or for that matter on an application under r 293 by a defendant. 1 The application form on the court file recites that it is the “the defendant” that is applying to the court for an order under r 292, but this is obviously a mistake. 2 If it was not a consent order on the application for summary judgment, it is not clear on what basis the order was made. Possibly under r 658, although even under that rule it would not be appropriate for a registrar to give leave to enter judgment, rather than just judgment. 3 Document 14 on the court file, filed 5 May 2016. -- 2 of 5 -- 3 Summary judgment rules [6] At one time the rules did provide that the result of a summary judgment application, if the plaintiff was successful, was that an order would be made that judgment be entered for the plaintiff against the defendant for a particular amount, and pursuant to that order the registrar would then sign judgment. Prior to 1965 the Rules of the Supreme Court, in O 18 r 1(1), provided that in certain circumstances a plaintiff might apply to a judge “for liberty to enter final judgment for the amount so endorsed4 or any part thereof together with interest if any… . A judge may thereupon, unless the defendant, by affidavit or viva voce evidence, or otherwise, satisfies him that he has a good defence to the action on the merits, or discloses such facts as to entitle him to defend, make an order giving the plaintiff leave to enter judgment accordingly.” [7] If such an order were made by a judge it was taken out in Form 13 in Sch 1, Pt 9 to those Rules: “I do order that the plaintiff be at liberty to sign final judgment in this action for the amount endorsed on the writ … .” The registrar would then sign judgment in Form 7 in Sch 1, Pt 5, s 1, which said: “The defendant having appeared to the writ of summons herein, and the plaintiff having by the order of the Honourable Justice C dated …, obtained leave to sign judgment under the Rules of the Supreme Court for £… (or as the case may be), it is this day adjudged that the plaintiff do recover against the defendant £… .”5 [8] In 1965 however O 18 r 1 was amended so as to provide: “When a defendant appears to a writ of summons specially endorsed under O 6 r 7, the plaintiff may… apply to a judge for judgment against that defendant. The judge may thereupon… give such judgment for the plaintiff against that defendant on that claim or part as may be just having regard to the nature of the remedy or relief claimed.” [9] The forms in the first schedule to the rules, which were also replaced in 1965, provided forms for orders under O 18 r 1 where a defendant was at liberty to defend the action, or conditional liberty to defend the action,6 but the only form of order specifically providing for entry of judgment was Form 280, for an action on a bill of costs, which provided for the plaintiff’s bill of costs to be referred to the taxing officer, and for the plaintiff to give credit for money received by him, “and that judgment be entered for the plaintiff for the amount if any certified to be due to him by the taxing officer on the said taxation, and the cost of the action, to be taxed.” There was no longer any special form for an order made on a successful application under O 18 r 1, nor was there a special form for a judgment, consequent upon any such order. After 1965, a judge acceding to an application for judgment under O 18 r 1 would simply give judgment for the plaintiff in a particular amount.7 [10] In the District Court on the other hand there was no change to the old form of expression in the District Courts Rules 1968 until those rules were superseded in 1999 4 On the writ; this was only available if the action had been commenced by specially endorsed writ. 5 This was consistent with the usual form of judgment under those rules, following the traditional form of a common law judgment. 6 Forms 277, 278, 279. 7 See for example Leisure and Allied Industries (1973) Pty Ltd v Browning [1978] Qd R 24 at 26. -- 3 of 5 -- 4 by the Uniform Civil Procedure Rules.8 Rule 153(1) permitted in certain circumstances a plaintiff to “take out a summons … calling on the defendant to show cause before a judge why the plaintiff should not be at liberty to sign judgment forthwith for the relief so claimed together with interest (if any) and costs.” A judge who heard such a summons was to make a minute of the judge’s order (r 158) which was to be sent to the registrar of the court from which the summons was issued (r 159) who would “upon receipt of the minute of the order, cause judgment for the amount mentioned in the order and the prescribed costs to be entered”: r 166.9 There was no form prescribed for the minute of order or a special form for a judgment under r 166. [11] By contrast the UCPR in r 292(1) permits a plaintiff to “apply to the court under this part for judgment against the defendant.” Sub-rule (2) then permits the court in certain circumstances to “give judgment for the plaintiff against the defendant for all or the part of the plaintiff’s claim … .” The wording of r 293, permitting summary judgment for the defendant, is in essentially the same terms. On the hearing of a summary judgment application under the current rules therefore the court either gives judgment, or dismisses the application. There is no mechanism under the current rules for an order for the entry of judgment by the registry, nor for that matter is there any mechanism under the current rules for the grant of leave to a defendant to defend, and hence no question of a defendant being given only conditional leave to defend,10 although r 298 does permit the court to impose conditions on the future conduct of the proceeding, which can include a condition that the defendant provide security.11 [12] The matter is complicated in the present case by the fact that the order made by consent did not specify the amount of the judgment, but rather contemplated that the amount stated in the order would be adjusted in various ways prior to the time when the “judgment” was “entered”. Again there is no mechanism under the rules for any such process to be followed on an application for summary judgment. Rule 666 does not authorise the registrar to make by consent an order which could not be properly made by the court under the rules: see sub-rule (4). [13] In short, this is a matter where the consent order dated 5 May 2016 should never have been made in those terms by the registrar. As it stands the order of 5 May 2016 is not a judgment; it provides a mechanism under which a judgment can come into existence, but that mechanism has never been carried into effect. What happened instead was that on 8 September 2016 the plaintiff filed an application seeking to have the order varied to provide “that judgment be entered in favour of the plaintiff against the defendant pursuant to r 666 of the Uniform Civil Procedure Rules 1999 in the amount of $612,103.23.” In support of that application an affidavit was filed drawing attention to the fact that the amount recorded in the consent order did not reflect the amount shown to be owing in an affidavit of debt filed on 28 April 2016. The function of this amendment therefore was to correct that error. The application has been served on the defendant but there has been no response. 8 It is a little curious that the District Court Rules in 1968 did not reflect the change to the Supreme Court Rules made by amendment in 1965. 9 In practice this mechanism was obsolete before 1999; the judge’s clerk or associate would endorse the order made on the file, and on the basis of that the registrar would sign judgment. 10 At one time leave to defend could be conditional upon, for example, the defendant giving security in relation to the amount in dispute: O 18, r 6; General Credits (Finance) Pty Ltd v Stoyakovich [1975] Qd R 352; Fieldrank Ltd v Stein [1961] 1 WLR 1287 at 1289. 11 Duhs v Pettett [2009] QCA 347. In that case the order provided for the plaintiff to have leave to enter judgment if the security were not provided, but in fact the matter was brought back before the judge who gave judgment. The present point was not considered by the Court of Appeal. -- 4 of 5 -- 5 Power to amend judgment [14] At first glance it is not immediately obvious what the basis is of the application.12 Rule 667 permits a court to set aside or vary an order (which includes a judgment) in certain circumstances, but the time for doing so under sub-rule (1) has expired, and it is not obvious that any of the circumstances set out in sub-rule (2) would apply. This is not a situation where facts arising after the order was made, or facts only discovered after the order was made, mean that the order has become or can now be seen to be inappropriate so as to activate r 668; the position was simply that the order was inappropriate on the basis of the material then available. [15] Rule 318, permitting the court to set aside or vary a judgment given under the summary judgment rules, is conditioned on judgment being given against a party who did not appear on the hearing of the application, but that is not applicable in circumstances where the order was made by the registrar by consent; there was no hearing of the application, and insofar as there was a proceeding before the registrar, the defendant participated in that proceeding in the way appropriate under the rules, by signing the request for consent order. [16] Perhaps the deficiency in the current consent order may be described as a clerical mistake arising from an accidental slip or omission so as to give power to the court to correct it under r 388. I note that a broad view has been taken of that rule: Queensland Pork Pty Ltd v Lott [2003] QCA 271.13 There is a mechanism for having a decision of a registrar reheard by a court, with the leave of the court, under r 791, and I would grant leave if necessary to enable that power to be exercised. I think however that a better way is to treat the application as coming within r 667(2)(e), since the plaintiff is the party with the benefit of the current order, and it is seeking the amendment. No doubt if the original order is set aside, I can then make the order which should have been made, which in substance permits me to vary that order. [17] I do not know whether the effect of applying the mechanism set out in the balance of the order as made would be that judgment for the plaintiff would be entered for a larger or smaller figure, or for that matter whether there has been any change to the balance owing since the affidavit of debt was filed on 28 April 2016, but the defendant has not opposed the order now sought. It seems to me quite clear that the current consent order is defective and should not be allowed to stand. Ultimately I think the best course is to make the order for variation under r 667(2)(e). [18] In the circumstances I will do what should have been done in the first place, and give judgment for a particular amount, either with or without an amount for interest and an amount for costs. The effect of the current application seems to be to seek judgment simply for a particular amount. Accordingly, I order that the consent order dated 5 May 2016 signed by the registrar under r 666 be varied so as to substitute, for the introductory words and paragraphs 1 and 2 of that order, the following: “The judgment of the court, by consent, is that: 1. The defendant pay the plaintiff $612,103.23 in respect of the whole of the plaintiff’s claim.” [19] There should be no order as to the costs of this application. 12 The application did not comply with Rule 26(6) by specifying the rule relied on for the order sought. 13 See also Gramotnev v Queensland University of Technology (No 2) [2015] QCA 178. -- 5 of 5 --