Deputy Commissioner of Taxation v de la Torre [2025] ACTSC 436

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: Deputy Commissioner of Taxation v de la Torre Citation: [2025] ACTSC 436 Hearing Date: 26 September 2025 Decision Date: 26 September 2025 Before: Mossop J Decision: (1) The proceedings are adjourned until 9:15am on 24 October 2025. (2) The default judgment is stayed until 5pm on 24 October 2025. (3) The Registrar is directed to notify the plaintiff of the orders made today. Catchwords: PRACTICE AND PROCEDURE – SERVICE OF DOCUMENTS – Address for service – whether model litigant should have address for service which is reasonably practicable for the opposing party to use – where self-represented litigant attempted service of application to set aside default judgment on Deputy Commissioner of Taxation – where address for service was limited to physical address and facsimile number – where service not accepted at physical address – where service effected by facsimile – facsimile number not a permissible address for service under the Court Procedures Rules 2006 (ACT) – proceedings adjourned to allow adequate time for notice of hearing to reach address for service – default judgment stayed Legislation Cited: Court Procedures Rules 2006 (ACT), r 1118(5), Dictionary Parties: Deputy Commissioner of Taxation (Plaintiff) John de la Torre (Defendant) Representation: Counsel No appearance (Plaintiff) Self-represented (Defendant) Solicitors No appearance (Plaintiff) Self-represented (Defendant) File Number: SC 350 of 2024 MOSSOP J:

1. Should a model litigant have an address for service which is reasonably practicable for an opposing party to make use of? This is a question which answers itself. In this case, the question arises in the following circumstances.

2. The Deputy Commissioner of Taxation commenced proceedings against Mr de la Torre. Mr de la Torre filed a notice of intention to respond but did not file a defence. The filing of a notice of intention to respond did not avoid the need to file a defence. The Deputy Commissioner applied for default judgment. Notwithstanding that a notice of intention to respond had been filed by Mr de la Torre, the application was not served upon him. Proceeding in that manner is permitted under the Court Procedures Rules 2006 (ACT) unless the court otherwise orders: see r 1118(5). In circumstances where a notice of intention to respond had been filed, there were sound reasons why an order requiring Mr de la Torre to be served with the application should have been made. However, it was not, and default judgment was entered.

3. Mr de la Torre wished to have the default judgment set aside. Based on the originating claim and statement of claim, he identified that the address for service of the Deputy Commissioner was 26 Narellan Street, Canberra. He went there on 19 August 2025 to serve his application to set aside default judgment. On the ground floor of the building, there were only security guards. Mr de la Torre enquired as to service of documents on the Deputy Commissioner. A security guard made enquiries about the availability of three different people within the building to accept service. One of them was sick, that person’s supervisor was not available, and the third person indicated that she would not accept service of Mr de la Torre’s application. He was told to attempt service on another occasion.

4. Undeterred by this, and conscious of the need to serve the document, he examined the originating claim again and discovered that the only other address for service was a facsimile number. Under the Rules, a facsimile number may not be an address for service. This is currently the case in relation to all parties, whether represented by solicitors or not. Prior to 1 January 2019, a solicitor acting for a party could provide a facsimile number for service, but a litigant acting in person could not. The approved form for an originating claim, which has failed to keep up with the terms of the Rules, still includes reference to the option of providing a facsimile number, presumably referring to the option available to persons represented by solicitors prior to 1 January 2019.

5. Mr de la Torre, by accessing the telephone line used for his house alarm, was able to send a facsimile to the number on the originating claim. The cover sheet of the facsimile, which was sent at 5:43pm on 19 August 2025, provided: Service was attempted at the stated address 26 Narellan St Canberra on 19 August between 2.25 - 2.41. The guard at the Wilson Security desk advised he could not accept the document he then made several calls & advised the three contacts he had for this were unavailable. One was sick, he couldn’t find the supervisor & the third person advised they weren’t authorised to accept documents. The guard advised I would need to come back another day and try again to deliver the document. The document has been served by fax.

6. Notwithstanding these efforts, there was no appearance by the Deputy Commissioner when the application to set aside default judgment was first listed on 19 September 2025. On that occasion, I stayed the default judgment until today and directed the Registrar to notify the Deputy Commissioner of the orders made that day. Those orders were sent by express post on 19 September 2025. In a usual case, where an email address had been provided to the court, the orders would have been sent electronically through the court’s case management system.

7. How is it that the Deputy Commissioner was able to provide only a physical address for service and not an email address, which would have permitted Mr de la Torre to more easily serve documents? The reason is that the Deputy Commissioner was acting in person. The originating claim and statement of claim are each signed by D Allen, who I infer is a Deputy Commissioner. The originating claim does not identify any solicitor on the record for D Allen. Because no solicitor is acting for D Allen, the rules relating to an address for service are those applying to a litigant who is acting in person.

8. The relevant part of the definition of “address for service” in the Dictionary to the Rules provides as follows: address for service, in relation to a proceeding (including a proceeding on an application in the proceeding), means— (a) for a person represented by a solicitor in the proceeding— (i) if the solicitor has a place of business in the ACT— (A) the business address; and (B) an email address; and (C) if the solicitor gives the court a postbox number at a post office in the ACT—the postbox number; or (ii) in any other case— (A) the solicitor’s business address in Australia; and (B) an email address; and (C) if the solicitor gives the court a postbox number at a post office in Australia—the postbox number; or (b) for a plaintiff, defendant or anyone else acting in person in a civil proceeding— (i) if the person has a home or place of business in the ACT—the home or business address, and any of the following, given by the person to the court for the proceeding: (A) a postbox number at a post office in the ACT; (B) an email address; or (ii) in any other case—the address of a place in Australia, and any of the following, given by the person to the court for the proceeding: (A) a postbox number at a post office in Australia; (B) an email address; …

9. It will be apparent that, for litigants in person, there is a choice as to whether or not to provide an email address for service. The approach of the Deputy Commissioner has been to not provide an email address even though that is an available option. A facsimile number has not been permissible as an address for service for a solicitor since 1 January 2019, although the approved form, misleadingly, still makes reference to that option. Even if a facsimile number was a permissible address for service, given that facsimile machines are now uncommon, the approach taken by the Deputy Commissioner would, in a practical sense, compel litigants to serve documents by attending the physical address for service or sending documents by post. At least so far as Mr de la Torre was concerned, his attendance at that address indicated that there is no adequate system in place for acceptance of service. So far as the court is concerned, this approach to the address for service puts communications with the Deputy Commissioner outside the system usually adopted in relation to most parties litigating in the court and it is certainly unusual for a major institutional litigant.

10. Notwithstanding that I am satisfied that the registry sent a copy of the orders made on 19 September 2025 to the Deputy Commissioner’s address for service by express post, and that Mr de la Torre sent written submissions which I granted leave for him to file and serve to the Deputy Commissioner by facsimile on 25 September 2025, there was no appearance by the Deputy Commissioner again today.

11. In those circumstances, I will continue the stay on the default judgment and adjourn the proceedings for a month so as to permit the Registrar to notify the Deputy Commissioner at the address for service of the orders made today and allow the Deputy Commissioner to appear, either in person or, following the filing of a notice of solicitor acting, by a legal representative. I recognise that it is obviously unsatisfactory for an application to set aside a default judgment to be adjourned for any substantial period. It is for that reason that I adjourned the matter for only one week on the previous occasion. However, having regard to the failure by the Deputy Commissioner to appear on this occasion and the need to allow adequate time for notice of the hearing to reach the Deputy Commissioner’s address for service, I consider that a more substantial period is required in order to ensure that the Deputy Commissioner has the opportunity to appear.

Orders

12. The orders of the Court are: (1) The proceedings are adjourned until 9:15am on 24 October 2025. (2) The default judgment is stayed until 5pm on 24 October 2025. (3) The Registrar is directed to notify the plaintiff of the orders made today.

I certify that the preceding twelve [12] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: