DCT v Haddock [2010] NSWSC 996 | Case summary

2009/292742 DEPUTY COMMISSIONER OF TAXATION v PERRY J HADDOCK JUDGMENT 1 There are two rival notices of motion before the Court. The Plaintiff, Deputy Commissioner of Taxation, seeks leave to file a notice of discontinuance. The Defendant, Perry J Haddock, seeks a verdict and judgment in his favour. 2 Mr Haddock and three others constructed six strata units, two of which were sold to third parties and the others retained by them. The Deputy Commissioner decided that the individuals were a partnership and she assessed Mr Haddock to tax under A New Tax System (Goods and Services Tax) Act 1999 (Cth) for the partnership GST. 3 The Deputy Commissioner issued Mr Haddock with a notice of net GST for the partnership for two consecutive quarters on 20 October 2008. On 4 November 2008 she warned him in writing that proceedings would be instituted to recover the net amounts assessed. The Deputy Commissioner issued Mr Haddock with a notice of assessments and liability to pay penalty on 10 December 2008. On 18 February 2009 she commenced these proceedings against Mr Haddock for the GST, administrative penalties and the general interest charge. 4 The Deputy Commissioner says that due to an administrative oversight a notice of assessment of the net GST had not issued to Mr Haddock and she remedied that by the issue of a notice of assessments for net amount on 25 September 2009. 5 Mr Haddock reacted to this and the earlier notice by lodging notices of objection on 27 November 2009. On 8 July 2010 the Deputy Commissioner allowed the objections to both notices of assessment in full. She concluded that the property development was not conducted by a four-person partnership but by a non-entity joint venture comprising the four individuals who were each responsible for accounting for their respective GST liabilities, if any. 6 Mr Haddock filed his notice of motion on 19 July 2010. The Deputy Commissioner filed hers on 11 August 2010. 7 The court could enter judgment in Mr Haddock's favour. The Civil Procedure Act 2005, s 90(1) provides that the court is, at or after trial or otherwise as the nature of the case requires, to give such judgment or make such order as the nature of the case requires. The Uniform Civil Procedure Rules 2005, Pt 36 r 36.1 provides that at any stage of the proceedings, the court may give such judgment, or make such order, as the nature of the case requires, whether or not a claim for relief extending to that judgment or order is included in any originating process or notice of motion. 8 Furthermore, the Deputy Commissioner has admitted that no partnership existed in this case. The Uniform Civil Procedure Rules, Pt 17 r 17.7(1) provides that if admissions are made by a party, whether by his or her pleadings or otherwise, the court may, on the application of any other party, give any judgment or make any order to which the other party is entitled on the admissions. 9 On the other hand, the court may give the Deputy Commissioner leave to file a notice of discontinuance. The Uniform Civil Procedure Rules, Pt 12 r 12.1 provides that the plaintiff in any proceedings may, by filing a notice of discontinuance, discontinue the proceedings, either as to all claims for relief or as to all claims for relief so far as they concern a particular defendant, with the consent of each other active party in the proceedings, or with the leave of the court. Mr Haddock does not consent. 10 The court has a discretion whether to grant leave to discontinue. A plaintiff is not entitled to leave as a matter of course, but the court will lean in favour of granting leave if no injustice is caused to a defendant. In Covell Matthews and Partners v French Wools Ltd [1977] 1 WLR 876 at 879, Graham J said: "The principles to be culled from these cases are, in my judgment, that the court will, normally, at any rate, allow a plaintiff to discontinue if he wants to, provided that no injustice will be caused to the defendant. It is not desirable that a plaintiff should be compelled to litigate against his will. The court should therefore grant leave, if it can, without injustice to the defendant, but in doing so should be careful to see that the defendant is not deprived of some advantage which he has already gained in the litigation and should be ready to grant him adequate protection to ensure that any advantage he has gained is preserved." 11 That passage was cited with approval in SCI Operations Pty Ltd v Trade Practices Commission (1984) 2 FCR 113, by Sweeney J at 142-143, by Lockhart J at 161 and by Shepherd J at 184-185. It was also cited with approval by Bergin J in Greaves v CGU Insurance Ltd [2004] NSWSC 912 at [5]. 12 In Trade Practices Commission v Manfal Pty Ltd & Ors (No 3) (1991) 33 FCR 382 at 384 Lee J said that the requirement that, in the absence of consent, discontinuance of litigation against the party only be permitted by leave of the court contemplated a judicial review of all relevant circumstances and the satisfaction of the court that the grant of leave is proper in all the circumstances. 13 In opposition to the grant of such leave and in support of his notice of motion seeking judgment, Mr Haddock raised a number of issues. 14 While accepting that the Deputy Commissioner was entitled to commence debt recovery proceedings before a taxpayer objected to a reviewable indirect tax decision in terms of the Taxation Administration Act 1953 (Cth), Sch 1, s 105-40, it was submitted that there were a number of matters that suggested that the proceedings were commenced with something less than due consideration and deliberation. 15 First, there was the failure to issue a notice of assessment before the institution of the proceedings. 16 But the Taxation Administration Act, Sch 1, s 105-15(1) provides that liability to pay indirect tax and the time by which a net amount must be paid do not depend on and are not in any way affected by the making of an assessment. 17 As I pointed out in Platypus Leasing Inc & Ors v Commissioner of Taxation [2005] NSWSC 388; (2005) 189 FLR 441 at 446 [25], 447 [34] GST is "self executing". Tax is payable if there is a net amount. A New Tax System (Goods and Services Tax) Act, s 33-5 provides that if a net amount is greater than zero the taxpayer must pay the net amount to the Commissioner. 18 Further, the Deputy Commissioner has a duty to pursue the recovery of tax-related liabilities (Piccinin v Deputy Commissioner of Taxation [2002] FCAFC 282 at [29]). 19 Mr Haddock ignored the notice of 20 October 2008, the letter of 4 November 2008 and the notice of assessment of penalty of 10 December 2008. 20 The oversight that led to the failure to issue a notice of assessment for the net amount of GST before instituting proceedings was not so unreasonable as to warrant the departure from the usual course of granting the Deputy Commissioner leave to file a notice of discontinuance. 21 Secondly, it was submitted that the statement of claim was defective and, in particular, that it did not plead material facts to establish that Mr Haddock was a member of a four-person partnership. And it was submitted that the pleading should have stated when the running balance account was created, what amounts were allocated to it, when they were allocated, what amounts of general interest charge had accrued and when those amounts accrued. 22 The pleading did allege that Mr Haddock was a member of a named four-person partnership. 23 The RBA was established around 3 October 2008 and assessed liability to GST on 2 March 2004 and 28 April 2004 were the first items entered. Then there were a series of GIC amounts entered that were dated prior to 3 October 2008. It was submitted that the Deputy Commissioner had no power to allocate GIC amounts to an RBA before its establishment. 24 But GIC amounts are not allocated to an RBA. They accrue automatically. The Taxation Administration Act, s 8AAZD(1) provides that the Commissioner might allocate a primary tax debt to an RBA that had been established for that type of tax debt. That was done on or about 3 October 2008 by the opening entries of March and April 2004. 25 Section 8AAZF(1) of the Taxation Administration Act provides that if there is an RBA deficit debt at the end of a day the GIC is payable on that RBA deficit debt for that day and s 8AAZF(2) provides that the balance of the RBA is altered in the Commissioner's favour by the amount of the GIC payable. And that was done by the progressive entries of the GIC in the RBA. 26 It was not argued that the GIC recorded in the early entries had not accrued. The argument was as to the form of the RBA. 27 The two notices of assessment were in evidence in these proceedings. The Taxation Administration Act, Sch 1, s 105-100 made the notice of assessment of net amount conclusive evidence that the amounts and particulars in the assessment were correct except in proceedings on review or appeal from an adverse decision on a notice of objection under Part IVC. Section 298-30 gave the same effect to the notice of assessment of the amount of administrative penalty. 28 It was not open to Mr Haddock in these non Part IVC proceedings to challenge the liability under the RBA. 29 In any event, an RBA deficit debt is no more than an auxiliary obligation created to facilitate the collection of a variety of taxes with which the Taxation Administration Act is concerned. There is an identity of amount between it and the primary tax debt that exists in respect of the taxes and penalties thereon already imposed by other legislation (H'Var Steel Services Pty Ltd v Deputy Commissioner of Taxation [2005] WASCA 71; (2005) 59 ATR 5 at 8 [13] per Wheeler JA). If there was thought to be a problem with the RBA case, the Deputy Commissioner might have sought leave to amend to raise the indebtedness of the partnership by reference to direct statutory liabilities. 30 In my judgment, Mr Haddock has not established that the statement of claim or the RBA were defective. But even if there was some infelicity of pleading or error in the RBA, I do not see that they would justify denying the Deputy Commissioner leave to discontinue the proceedings. 31 Thirdly, the statement of claim was verified by a clerk employed by the Deputy Commissioner who was not a solicitor when, it was submitted, a solicitor on the record would have appreciated the need to establish the existence of a partnership. 32 That presupposes that the allegation that the pleading was deficient with respect to the four-person partnership is made out. It was not. 33 It is also a matter of conjecture what a solicitor rather than an employed clerk would have pleaded. 34 There was no obligation upon the Deputy Commissioner to retain the services of a solicitor. She should not be denied leave to file a notice of discontinuance on that basis. 35 Fourthly, it was submitted that differential treatment of the four persons alleged to have been partners should deny the Deputy Commissioner being given leave to discontinue the proceedings. 36 There is no obligation upon a Deputy Commissioner to treat partners in the same way. One partner may be singled out to be sued for the taxation debt, administrative penalties and GIC of the partnership. 37 The liability of partners under an indirect tax law is joint and several. The Taxation Administration Act, Sch 1, s 444-30(1) provides that obligations imposed under an indirect tax law on a partnership are imposed on each partner but may be discharged by any of the partners. And s 444-30(2) provides that the partners are jointly and severally liable. 38 Furthermore, other partners are not necessary parties to litigation against one partner. The Uniform Civil Procedure Rules, Pt 6 r 6.21(1) provides that a person who is jointly and severally liable with some other person in relation to any act, matter or thing need not be a defendant in proceedings with respect to that act, matter or thing merely because the other person is a defendant in those proceedings. 39 The submission that Mr Haddock was left with the responsibility and expense of defending the claim with no recourse to other persons for any contribution is erroneous. 40 Since the Deputy Commissioner alleged in these proceedings that Mr Haddock was a partner with three other persons and their liability as partners was joint and several, Mr Haddock could have claimed contribution from the co-partners. 41 The Taxation Administration Act, Sch 1, s 265-45(2) provides that if two or more persons are jointly liable, and if one person has paid an amount of the liability, he or she may recover, in a court of competent jurisdiction, as a debt, from another of those persons, an amount equal to so much of the amount paid and an amount equal to so much of the costs of recovery, as the court considers just and equitable. 42 Proceedings were commenced against one other of the four persons and pleadings had been filed and served. A statement of claim was filed against a third of the persons but has not been served and no proceedings have been commenced against the fourth person. 43 I reject the submission that these matters, that are said to relate to the decision to commence these proceedings, should deny the Deputy Commissioner leave to discontinue the proceedings and should justify entry of judgment in Mr Haddock's favour, whether they are considered individually or in combination. 44 It was submitted on Mr Haddock's behalf that the Deputy Commissioner adopted incongruous positions during the course of the proceedings. 45 First, it was submitted that the Deputy Commissioner acted with a lack of any urgency. There are counter-allegations on behalf of the Deputy Commissioner that it was Mr Haddock who delayed. I do not propose to resolve those issues on these motions. 46 The submission on the other side of the incongruity was that the Deputy Commissioner was unwilling to put the case on hold pending a decision on Mr Haddock's notice of objection. 47 In October 2009, Mr Haddock advised the Deputy Commissioner that he proposed to object and suggested that the proceedings be stayed. In February 2010, he provided her with submissions and requested the proceedings be put on hold. But the Deputy Commissioner did not agree to that course. She was not obliged to. 48 The Taxation Administration Act, s 14ZZM provides that the fact that a review is pending in relation to a taxation decision does not, in the meantime, interfere with, or affect, the decision and any tax, additional tax or other amount may be recovered as if no review were pending. A similar provision, when an appeal is pending, is contained in s 14ZZR. 49 But both those provisions apply before a notice of objection is lodged. As Ireland J pointed out in Deputy Commissioner Taxation v Ho (1996) 131 FLR 188 at 192, this is because the definition of a "taxation decision" in s 14ZQ means the assessment, determination, notice or decision against which a taxation objection may be, or has been, made. 50 In any event, it was open to Mr Haddock to apply for a stay if he were so minded. 51 It was submitted on behalf of Mr Haddock that since the Deputy Commissioner cannot prosecute her claim successfully and cannot put any evidence before the court, she should concede that she has no evidence to support her claim and Mr Haddock is entitled to judgment on the claim. 52 As I have already indicated, an admission sufficient to ground an entry of judgment in Mr Haddock's favour has already been made. He needs no further concession from the Deputy Commissioner. 53 Finally on this aspect of the matter, Mr Haddock submitted that if the Deputy Commissioner is granted leave to file a notice of discontinuance, or there is an unqualified dismissal of her proceedings, he will lack the benefit of a res judicata that would be available to him if judgment were entered in his favour. If any of the other three persons sought to join him in their proceedings, it was submitted that Mr Haddock could raise the defence of res judicata. 54 In order to constitute res judicata there must be a decision on the merits. The question whether there has been a decision on the merits is difficult where for some reason a trial has not been held or has been held only partially. 55 In Linprint Pty Ltd v Hexham Textiles Pty Ltd (1991) 23 NSWLR 508 it was held that where a cross-claimant withdrew from the trial and an order was made in its absence dismissing its claim, the order would, unless set aside or successfully appealed, ground a later plea of res judicata or issue estoppel. 56 When counsel for the defendant cross-claimant withdrew, the plaintiff's claim for work and labour and materials proceeded in a conventional way with evidence called. It was held, when fresh proceedings pleading a cause of action substantially identical with the claim contained in the cross-claim were brought, that the defence of res judicata was made out. 57 The case is distinguishable from the instant circumstances where judgment for the defendant is sought rather than that a cross-claim be dismissed. 58 In Rogers v Legal Services Commission of South Australia (1995) 64 SASR 572 the appellant had been charged with contempt of court and legal aid was refused on the grounds that there was no reasonable prospect of successfully defending the charge. The appellant appeared before the court unrepresented and was convicted. He sought advice and funding from the Legal Services Commission to appeal the conviction, which was refused on the basis that there were no grounds on which the proposed appeal would be successful. 59 The appellant served a term of imprisonment as a result of the conviction. He later successfully appealed and then issued proceedings against the Legal Services Commission seeking damages. The Commission successfully applied to the court to strike out the appellant's pleading for failure to disclose any clear cause of action. 60 The appellant issued another set of proceedings against the Commission claiming breach of statutory duty, negligence and misfeasance in a public office. The defendant raised the defence of res judicata, which the Master accepted. 61 It was held, on appeal, that whether a dismissal of an action gives rise to a plea of res judicata depends on whether the dismissal involved a determination of an issue of fact or law on the merits. Since no finding was made as to any fact and no finding was made as to the availability of any cause of action in the first proceedings, it was held that it could not be said that the cause of action in the first proceedings had merged into a judgment and res judicata did not apply. 62 Lander J at 593 observed that an order dismissing proceedings because they identified no cause of action could hardly result in a merger of the cause of action in the judgment: "In the ordinary course of events where a trial has taken place and a judgment entered, it is not difficult to determine whether the cause of action, the subject matter of a current set of proceedings, has been previously disposed off by a tribunal in circumstances which would give rise to a plea of res judicata. More difficulty arises in circumstances where the matter has not gone to trial and has not been formally adjudicated upon by a tribunal for reasons that there has been a withdrawal by one party before the matter has concluded, or the parties have agreed to a comprise, or judgment has been entered by reason of the default of another party, or because the action has simply been dismissed. I am unable to find any authority which directly bears on the matter agitated in this appeal. I think that may be so because the order which is said to give rise to the res judicata is a most unusual order, for reasons that I have already stated, in that the action has been dismissed because a cause of action cannot be identified on the then pleadings. The very nature of the order, ie that the proceedings are dismissed because the proceedings do not identify a cause of action, rather suggests that the cause of action could not have been disposed of, because, in fact the finding is there was no cause of action, and therefore no cause of action could have merged into the judgment." 63 In Mango Boulevard P/L v Spencer & Ors [2010] QCA 207, so far as is material for present purposes, the Chief Justice made self-executing orders that, amongst other things, provided that there be judgment for Mango Boulevard on the counter-claim if failures persisted. The defendants had failed to comply with earlier orders that they disclose documents relating to insolvency issues. 64 Muir JA at [54] agreed with Fraser JA that the primary judge refrained from determining that the Chief Justice's order resulted in a res judicata or issue estoppel. In discussing the authorities his Honour observed at [57] that the rationale for regarding default judgments as enlivening the doctrines of estoppel or res judicata is unclear. 65 Fraser JA, with whom White JA agreed, at [113] concluded that a judgment given for non-compliance with a party's obligations of disclosure under procedural rules, or pursuant to an order for disclosure, involves no actual decision on the merits and its premise is that the procedural defaults of one party are so extreme as to justify the conclusion that the party had forfeited an entitlement to a decision on the merits. Res judicata or issue estoppel did not arise. 66 These decisions make it clear, in my view, that if the court entered judgment for Mr Haddock there would be no finding of fact or law on the merits. The judgment would have the effect of dismissing the content of the Deputy Commissioner's statement of claim and there would be nothing to merge in the judgment. The judgment would not have the effect of making findings in terms of Mr Haddock's defence. Its effect would be negative rather than positive. 67 It follows that if judgment was given in Mr Haddock's favour it would not give rise to res judicata or issue estoppel and Mr Haddock would not gain an advantage that he would not possess if the Deputy Commissioner was given leave to enter a notice of discontinuance. 68 In any event, if there was no four-person partnership, each of the four persons would be responsible for their individual GST liabilities and no question of equitable contribution would arise. So that, even if I be wrong in my view that judgment in favour of Mr Haddock would not give rise in subsequent proceedings to a plea of res judicata, the availability of the plea does not create an advantage of any value. 69 In my judgment the appropriate course is to give the Deputy Commissioner leave to file a notice of discontinuance. Mr Haddock has failed to establish any basis for departing from the principle that a court will lean in favour of granting leave if no injustice is caused to a defendant. 70 That would lead to a dismissal of the amended notice of motion. If leave to discontinue is the appropriate relief, a verdict and judgment for Mr Haddock is not. Nor is there a basis, in my view, for the alternative order sought, that the proceedings be dismissed on terms that the Deputy Commissioner admits that there was no general law or tax law partnership between the four persons. 71 For the reasons that I decline to make either order, I would not order the Deputy Commissioner to pay Mr Haddock's costs on an indemnity basis. 72 The Uniform Civil Procedure Rules, Pt 42 r 42.19 applies to discontinuance of a claim under Pt 12 r 12.1. Rule 42.19(2) provides, relevantly for present purposes, that unless the court orders otherwise, the plaintiff must pay such of the defendant's costs as at the date on which the notice of discontinuance was filed had been incurred by the defendant in relation to each claim in respect of which the proceedings had been discontinued. 73 The rule does not create a presumption that a plaintiff should pay a defendant's costs as McColl JA observed in Fordyce v Fordham [2006] NSWCA 274 at [84]. The plaintiff bears an onus to advance some sound positive ground or good reason for departing from the ordinary course as Bryson JA observed in Australiawide Airlines Ltd v Aspirion Pty Ltd [2006] NSWCA 365 at [54], a phrase that was adopted by Hodgson JA in Bitannia Pty Ltd v Park Line Constructions Pty Ltd [2009] NSWCA 32 at [54]. 74 Citing One.Tel Ltd v Commissioner of Taxation [2000] FCA 270; (2000) 101 FCR 548 at 553; Edwards Madigan Torzillo Briggs Pty Ltd v Stack [2003] NSWCA 302 at [5] and Australiawide Airlines at [50]-[52], Basten JA in Bitannia at [79] said that in some circumstances it may be argued that a discontinuance does not involve a surrender or abandonment by the plaintiff, but recognition that "some supervening event" has militated against success, rendered the proceedings futile, or wholly removed the plaintiff's cause of action. 75 The Deputy Commissioner argues that the allowance of Mr Haddock's notices of objection under Part IVC of the Taxation Administration Act, outside the proceedings, was a supervening event that caused these recovery proceedings to be spent. 76 It was submitted that the Deputy Commissioner had not surrendered or abandoned the proceedings. I do not agree. Having come to the conclusion that there was no partnership, all the Deputy Commissioner could do was to surrender or abandon the current proceedings. 77 Nor do I regard her decision on the notices of objection as a supervening event. It was an event of her making by failing to issue a notice of assessment that would have entitled Mr Haddock to lodge his notices of objection before the Deputy Commissioner instituted these proceedings. 78 In my view, an event caused by a plaintiff is not the sort of supervening event to which Basten JA referred in Bitannia. 79 It is not appropriate, in my judgment, that the court should make an order in favour of the Deputy Commissioner under the Uniform Civil Procedure Rules, Pt 42 r 42.19(2) when she might have avoided putting Mr Haddock to cost had she issued a notice of assessment and determined his notices of objection before instituting the proceedings. It is hardly a just result that Mr Haddock should be denied the usual rule that he receive payment of his costs in those circumstances. 80 On the Deputy Commissioner's notice of motion I will grant leave to her pursuant to Part 12 r 12.1(1)(b) of the Uniform Civil Procedure Rules to file a notice of discontinuance. I will order her, pursuant to Part 42 r 42.19(2) to pay Mr Haddock's costs of the proceedings. 81 As to the costs of Mr Haddock's amended notice of motion, he failed to obtain any of the relief sought and it is appropriate that he pay the Deputy Commissioner's costs of it. 82 The Deputy Commissioner was partially successful on her notice of motion in obtaining leave to file a notice of discontinuance. But so was Mr Haddock who submitted that the general rule in the Uniform Civil Procedure Rules, Part 42 r 42.19(2) should apply. In those circumstances it is appropriate that there be no order as to costs of the Deputy Commissioner's notice of motion. 83 I direct the parties to bring in short minutes of order reflecting these reasons.

DCT v Haddock

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