Deputy Commissioner of Taxation v Norris [2010] QSC 275

SUPREME COURT OF QUEENSLAND CITATION: Deputy Commissioner of Taxation v Norris [2010] QSC 275 PARTIES: DEPUTY COMMISSIONER OF TAXATION (plaintiff/applicant) v LEANNE MAREE NORRIS (defendant/respondent) FILE NO/S: 6217 of 2007 DIVISION: Trial PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 26 July 2010 (delivered ex tempore) DELIVERED AT: Brisbane HEARING DATE: 26 July 2010 JUDGE: Atkinson J ORDER: 1. Judgment entered for the plaintiff against the defendant in the amount of $2,842,743.19; 2. The defendant pay the plaintiff’s costs fixed in the amount of $1,053.50. CATCHWORDS: PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – SUMMARY JUDGMENT – where the plaintiff applied for summary judgment in respect of the defendant’s income tax liability – where the defendant’s objection to the taxation amount levied was outside the jurisdiction of this court – where defendant had no real prospect of defending the plaintiff’s claim in this court – whether summary judgment should be entered for the plaintiff Income Tax Assessment Act 1936 (Cth), s 177(1) Taxation Administration Act 1953 (Cth), part IVC Uniform Civil Procedure Rules 1999 (Qld), r 292(ii) Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232; [2005] QCA 227, cited Federal Commissioner of Taxation v Futuris Corporation (2008) 237 CLR 146; [2008] HCA 32, cited COUNSEL: N Haskic (sol) for the plaintiff/applicant C Moore (sol) for the defendant/respondent SOLICITORS: Australian Taxation Office for the plaintiff/applicant Aejis Legal for the defendant/respondent [1] HER HONOUR: This is an application by the Deputy Commissioner of Taxation for summary judgment in the amount of $2,842,743.19 which includes interest on an income tax liability calculated to today's date, plus costs fixed in the amount of -- 1 of 3 -- 2 $1,053.50. [2] The application is made pursuant to rule 292 of the Uniform Civil Procedure Rules (UCPR). The test to be applied on an application for summary judgment under rule 292 was set out in Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232; [2005] QCA 227. [3] In that case Williams JA, with whom the other members of the Court, McMurdo P and myself, agreed, held that the test set out in Gray v Morris, [2004] 2 Qd R 118 at 126 and 127; [2004] QCA 005 was incorrect and that rule 292 and rule 293 brought about significant changes in the law and procedure related to summary judgment. [4] His Honour set out in full history the adoption of those rules and other decisions of this court which followed English decisions as to the meaning of the rules. His Honour said at [17], "The test for summary judgment has changed and the court must apply the words found in the rule." [5] Rule 292 (ii) provides that: "If the court is satisfied that the defendant has no real prospect of successfully defending all or part of the claim and there is no need for a trial of the claim or the part of the claim, the court may give judgment for the plaintiff against the defendant for all or the part of the plaintiff's claim and may make any other order the court considers appropriate." [6] This application has been brought on the basis of material which this court is obliged to consider is conclusively correct pursuant to section 177(1) of the Income Tax Assessment Act 1936 (Cth) which provides that: "The production of a notice of assessment, or of a document under the hand of the Commissioner, a Second commissioner, or a Deputy Commissioner purporting to be a copy of a notice of assessment shall be conclusive evidence of the due making of the assessment and, except in proceedings under part IVC of the Taxation Administration Act 1953 on a review or appeal relating to the assessment, that the amount and all the particulars of the assessment are correct." [7] Part IVC of the Taxation Administration Act deals with the way in which objections to a taxation amount that has been levied are to be dealt with in the Administrative Appeals Tribunal (the AAT) or the Federal Court. This court does not have jurisdiction to deal with objections raised under part IVC of the Taxation Administration Act. [8] The High Court held in Federal Commissioner of Taxation v Futuris Corporation (2008) 237 CLR 146; [2008] HCA 32 that if there are errors in the assessment then the remedy is under part IVC of the Taxation Administration Act and not in seeking judicial review of the decision. [9] Once objections have been lodged, as they have been in this case, except with regard to two years where the accountant, in error, failed to lodge objections but has said in the material before me that he will do so, that procedure should be allowed to continue. [10] There is no application before me in any event to judicially review the decisions made by the Tax Commissioner merely an application for an adjournment to allow the defendant to consider whether or not to make such an application. The prospects of such application succeeding are remote to say the least. That is not a basis on which to adjourn the application for summary judgment. [11] I see no real prospect of the defendant successfully defending the claim in this -- 2 of 3 -- 3 court. I say nothing about the prospects of success of the notices of objection which are not a matter for this court. [12] There is, in the circumstances, no need for a trial of the claim in this court and it is appropriate to give judgment for the plaintiff against the defendant in respect of the claim and I do so. -- 3 of 3 --