Deputy Commissioner of Taxation v Barbagallo [2012] QDC 234

1 [2012] QDC 234 DISTRICT COURT CIVIL JURISDICTION JUDGE ROBIN QC No 3149 of 2011 DEPUTY COMMISSIONER OF TAXATION Plaintiff and CHARLES JOHN BARBAGALLO Defendant BRISBANE ..DATE 16/08/2012 ORDER CATCHWORDS Taxation Administration Act (Cth) s 105.5, s 105.100, s 284.75, s298.30 Uniform Civil Procedure Rules r 292 Summary judgement application adjourned on first return date to enable defendant to engage legal representation despite strong statutory support for the claim - late provision of material by plaintiff -- 1 of 5 -- 2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: This is a summary judgment application by the Deputy Commissioner of Taxation. In the usual way it derives powerful advantages from the legislation. There is a basic assessment under section 105-5(1) of the Taxation Administration Act for an amount of $175,788 given relevantly conclusive effect by section 105-100. That was issued on the 16th of January 2009. The other one's the same date, is that correct? MS VAN HOEYEN: Yes, that's correct, your Honour. HIS HONOUR: It relates to the month of November 2007. On the same day administrative penalties were assessed in an amount of $131,841. The indebtedness, which has its genesis in GST obligations, attracts general interest producing an amount of some $452,281.20 if paid by the 18th of July 2012. The proceeding has already been before the court when the defence in the matter was declared ineffectual with the defendant having liberty to file a fresh notice of intention to defend, which occurred. There's a little more detail in the replacement document, which is an unimpressive assertion of confusion suffered by the defendant because he can't ascertain the truth of matters in an allegedly complex scenario. It emerges that the notion being propounded is that credits for GST are available somewhere or other in the -- 2 of 5 -- 3 ORDER 1 10 20 30 40 50 60 affairs of a large tourist venture which was constructed and I think failed. Ms Van Hoeyen for the plaintiff has read affidavit material prepared only recently which came to Mr Barbagello only this morning. I refer to affidavits of Mr Price and Mr Dillon, both of whom are in Sydney. The originals are in fact not available to the court yet but on their way and Ms Van Hoeyen gives appropriate undertakings to provide them. The effect of that material appears to be to show that the credits referred to, if existing or claimable at all, relate to a company whose tax affairs are distinct from Mr Barbagallo's. That they are not distinct appears to me to be the proposition advanced by him. The relevant company has ceased to exist so that there are difficulties potentially in its establishing entitlements to anything. It's uncertain whether there is yet any challenge in the AAT to the plaintiff's refusal to allow such credits. While the court knows too little in the matter to make any assessment about the merit of Mr Barbagallo's assertion that whatever entities might nominally be involved, everything really relates to his affairs, there's perhaps some support for that in an affidavit of Mr Moore, an accountant in South Australia which the court has seen only in unexecuted form. It was told -- 3 of 5 -- 4 ORDER 1 10 20 30 40 50 60 by Mr Barbagello that he has filed the original. We have the odd situation of Ms Van Hoeyen's new material jumping the stile, so to speak, before it's reached. The defendant has yet to provide anything that might persuade the court in support of his assertion that the interests of justice according to law in this context require awaiting the uncertain outcome of proceedings which may or may not be pending in the AAT. Ms Van Hoeyen, when she rose at the beginning of the hearing, acknowledged the lateness of this material. One of the affidavits is completely new today. The other would not have come to the notice of the solicitor who has been acting for Mr Barbagallo until today. His request of the court is for an adjournment of a month, although he indicated that he would like longer than that. He says he wishes to obtain legal representation, which he's had in the past. It's the first return date of the summary judgment application and in those circumstances, with some hesitation, I think it's appropriate to grant the adjournment sought. It ought to be at Mr Barbagallo's cost in my opinion. I failed to mention the other statutory provisions which support the claim. The administrative penalty is levied under section 284-75, in particular subsection (3), and conclusive effect is given to documents relevantly by section 298-30. -- 4 of 5 -- 5 ORDER 1 10 20 30 40 50 60 This is but another example of the helpful provisions in the legislation available to the plaintiff. Reference was also made to sections 8AAZI and 8AAZJ. The summary judgment application is adjourned till the 17th of September 2012 to enable the defendant to obtain legal representation and present his asserted defence in appropriate form for consideration by the plaintiff and the court. The court orders the defendant to pay the plaintiff's costs thrown away by the adjournment to be assessed. I would've required that to be on the indemnity basis but Ms Van Hoeyen tells the court such an order would give no additional benefit to her client. ----- -- 5 of 5 --