DEPUTY COMMISSIONER OF TAXATION -v- DEERING [2025] WASC 485 (18 November 2025)

1. The defendant entered an appearance as a self‑represented litigant on 17 May 2025.
2. By chamber summons filed on 14 July 2025, the plaintiff applied for summary judgment against the defendant pursuant to O 14 of the Rules of the Supreme Court 1971 (WA) (RSC) (Application).
3. The plaintiff also required, and sought, leave to bring the Application as it was not made within 21 days of an appearance being filed by the defendant, as required by O 14 r 1 RSC.
4. I heard the Application on 13 November 2025 and, having considered the materials filed and the submissions made by the parties, I was satisfied that:

(a) it is appropriate that the plaintiff have leave to bring the Application and that the time to do so be extended to the date it was filed, 14 July 2025;

(b) the plaintiff has complied with the procedural requirements for an application for summary judgment and made out a prima facie case;

(c) the defendant has not discharged his evidentiary burden of establishing that there is an arguable defence to the plaintiff's claim, an issue or question to be tried, or some other reason why there ought to be a trial of the action; and

(d) this is a clear case in which it is appropriate to enter summary judgment.

1. I gave brief oral reasons for my decision, made orders extending the time for bringing the Application and entered judgment for the plaintiff for the amount claimed together with interest. I said I would publish more detailed reasons for my decision. These are those reasons.

1. The plaintiff relied on an outline of written submissions filed on 18 September 2025, and the following affidavits in support of the Application:

(a) affidavit of Stephen Hotger sworn on 12 November 2025, which replaced an affidavit in the same terms sworn by Mr Hotger on 11 July 2025 (Hotger Affidavit);

(b) affidavit of Craig Mitchell affirmed on 12 November 2025, which replaced an affidavit in the same terms affirmed by Mr Mitchell on 10 July 2025 (First Mitchell Affidavit);

(c) two further affidavits of Craig Mitchell, both affirmed on 12 November 2025, one that attaches extracts from the Australian Taxation Office (ATO)'s computer systems (Second Mitchell Affidavit), and another that attaches evidentiary certificates (Third Mitchell Affidavit); and

(d) affidavit of Andrew Francis Dillon affirmed on 10 July 2025 (Dillon Affidavit).

1. Orders were made on 31 July 2025 programming the Application to hearing and for each of the parties to file affidavits and submissions. A copy of those orders was sent to each of the parties by email on 31 July 2025. The defendant responded on 10 August 2025 acknowledging the orders made on 31 July 2025.
2. The defendant did not file any affidavits or submissions in opposition to the Application. He read out a short statement at the hearing of the Application, which I refer to later in these reasons.

1. I will deal firstly with the plaintiff's application for leave to bring the Application.
2. The rules require an application for summary judgment to be made within 21 days after an application has been filed, or any later time with leave of the court.[1]
3. The 21‑day limit to bring an application for summary judgment reflects the view that such applications should be brought promptly and at an early stage of the proceedings, before unnecessary expense is incurred. Where leave is required to bring an application out of time, the onus is on the applicant to demonstrate that the delay is justifiable in the circumstances. Any prejudice to the other party caused by the delay and the prospects of the application are also relevant factors.[2]
4. As observed by Master Sanderson in Deputy Commissioner of Taxation v Heaton[3] and Tottle J in Deputy Commissioner of Taxation v Lafferty,[4] given the evidentiary advantages enjoyed by the Deputy Commissioner of Taxation, careful consideration should be given to whether allowing them to apply for summary judgment out of time would prejudice the defendant.
5. The defendant entered his appearance on 17 May 2025. The Application was filed on 14 July 2025, approximately five weeks later than the time for bringing an application for summary judgment without leave of the court.
6. This is a short delay, which is explained in the Hotger Affidavit.[5] The main reason for the delay in bringing the Application is, in essence, that there were attempts to confer to resolve the matter out of court, which were not successful.
7. I was satisfied that, although there was a delay in bringing the Application, it is not an undue delay. The Application was still brought at an early stage of the proceedings, before a defence was filed and significant costs incurred. There is no evidence of any prejudice to the defendant caused by the short delay in bringing the Application. Further, as will be developed, the merits of the Application are such that leave ought to be granted, in any event.
8. For these reasons, I was satisfied that leave to bring the Application should be granted, the time for which should be extended to the date of filing, 14 July 2025.

Procedural requirements and applicable legal principles relating to summary judgment

1. An application pursuant to O 14 RSC must be supported by an affidavit verifying the facts upon which the claim is based and stating that, in the deponent's belief, there is no defence to the claim.[6]
2. The principles that apply to an application for summary judgment are well established. The key principles were summarised by the Court of Appeal in Sutton Investments Pty Ltd v Realistic Investments Pty Ltd, as follows:[7]

Summary judgment will be granted only when there is no real question to be tried. The power to order summary judgment is one that should be exercised with great care: Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, 99. It is in only the clearest of cases, when there is a high degree of certainty about the ultimate outcome of the proceedings if it went to trial, that summary judgment ought properly be granted: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [57]; Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [46]; Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 [24], [53] - [55].

1. The plaintiff bears the burden of persuading the court that the claim is a good one and there is no defence to it. If the plaintiff's affidavit in support of the Application makes out a prima facie case on these two matters, the evidentiary burden passes to the defendant to show there is an arguable defence or another reason there ought to be a trial.[8]
2. A defendant seeking to demonstrate an arguable defence or some other reason why there ought to be a trial must condescend to particulars and provide sufficient details of their defence.[9]

1. As noted, the defendant is and, relevantly, was a director of the Company from 28 April 2022 to 28 May 2024.[10] During that time, the Company incurred tax‑related liabilities for superannuation guarantee charges and GST. It also had outstanding obligations in relation to tax‑related liabilities for GST for tax periods from 1 September 2020 up until April 2022.
2. The plaintiff claims, in essence, that the Company has not complied with its obligations in relation to those tax‑related liabilities and seeks to recover the amounts owed from the defendant under the director penalty regime. The plaintiff relies on evidentiary certificates signed by him as prima facie evidence of the defendant's liability to pay the amounts claimed, and for which he says the defendant has no defence.

1. Division 269 of sch 1 to the TAA (div 269) imposes obligations on directors to ensure that a company meets its taxation obligations and provides that directors who fail to comply with those obligations will be liable to pay a penalty.

1. Section 269‑10(1) of sch 1 to the TAA identifies the obligations with which a director must cause the relevant company to comply with. Those obligations arise if, on a particular day (the 'initial day'), relevantly:

(a) a quarter ends and the company is obliged to pay to the Commissioner, on or before the due day,[11] the superannuation guarantee charge in accordance with the SGAA;

(b) a tax period ends and the company is obliged to pay to the Commissioner an assessed net amount for the tax period in accordance with the GST Act on or before a particular day (the due day).

1. Section 269‑15(1) of sch 1 to the TAA provides that the directors of the company, on or after the initial day, must cause the company to comply with its obligation.
2. Section 269‑15(2) of sch 1 to the TAA provides that the directors of the company (from time to time) continue to be under their obligation until:

(a) the company complies with its obligation to pay the PAYG withholding amounts; or

(b) an administrator is appointed to the company under s 436A, s 436B or s 436C of the Corporations Act 2001 (Cth); or

(ba) a small business restructuring practitioner for the company is appointed under s 453B of that Act; or

(c) the company begins to be wound up (within the meaning of that Act).

1. A director is liable to pay a penalty to the Commissioner if the director does not comply with their obligations pursuant to s 269‑15 by the due day.[12]
2. The penalty is due and payable at the end of the due day.[13] The amount of the penalty is equal to the unpaid amount of the company's liability under its obligations.[14]
3. A director who becomes a director after the due day is also liable to pay the Commissioner a penalty if the obligation is not discharged within 30 days after the obligation began.[15] In that case, the penalty is due and payable at the end of the 30th day.[16]

Recovery of director penalties and director penalty notices

1. A Deputy Commissioner must not commence proceedings against a director to recover a penalty until the end of 21 days after giving the director written notice of the penalty under s 269‑25(2) of sch 1 to the TAA. I will refer to that notice as a director penalty notice (DPN).
2. The penalty is remitted if, before or within 21 days after a Deputy Commissioner gives the DPN, the director stops being under the obligation because the company's liability has been discharged or an administrator or small business restructuring practitioner is appointed to the company, or the company begins to be wound up.[17]
3. The issue of the DPN does not itself impose a liability on or create a right of action against the director. The issue of the DPN is a precondition to a Deputy Commissioner's power to commence proceedings to recover the penalty from the director. The director's obligations and liability under div 269 arise from the time the company comes under the obligation, and that obligation continues beyond the due date unless and until one of the matters in s 269‑15(2) and s 269‑30(1) of sch 1 to the TAA, as set out in [29] and [[[18]](2025_485.html#_Ref214279626 (a) a person named in the certificate has a tax‑related liability;[27] and

(b) a sum specified in the certificate is, at the date specified in the certificate, a debt due and payable by that person to the Commonwealth.[28]

1. Section 350‑15 of sch 1 to the TAA provides that all courts, and all persons having by law or consent of parties authority to hear, receive and examine evidence, must take judicial notice of the signature of every person who is or has been, relevantly, a Deputy Commissioner if the signature is attached or appended to an official document for the purposes of a taxation law.

The facts relevant to the plaintiff's claim and the Application

1. The following facts, verified by the unchallenged evidence in the affidavits filed by the plaintiff, make up the essential elements of the plaintiff's claim.

Company's liability for superannuation guarantee charge

1. Pursuant to s 36 of the SGAA, the Commissioner assessed the Company's superannuation guarantee shortfall and the superannuation guarantee charge payable on the shortfall for the quarters ending 31 March 2023, 30 June 2023, 30 September 2023, 31 December 2023 and 31 March 2024 (together the SGC Assessments).[29]
2. The Commissioner gave written notice of the SGC Assessments to the Company pursuant to s 40 of the SGAA. Details of the assessed amount for each quarter and the due date for payment are set out in the First Mitchell Affidavit and copies of each of the notices of assessment attached to it. The total unpaid amount in relation to the SGC Assessments, as at the date of the commencement of these proceedings, 2 May 2025, was $165,975.05.[30]

Director's obligations and penalty liability in relation to SGC Assessments

1. As a director of the Company, the defendant was obliged to cause the Company to pay the amounts of the SGC Assessments on or before the due dates for payment, pursuant to s 269‑15 of sch 1 to the TAA. The defendant continues to be under that obligation until the Company complies with its obligation to pay each of the assessed amounts to the Commissioner, or if certain other events occur, which do not apply in this case.[31] Those other events include the directors putting the company into voluntary administration, restructuring or liquidation, as outlined.
2. On 17 February 2025, a DPN was given to the defendant pursuant to s 269‑25 of sch 1 to the TAA in respect of director penalties for the unpaid SGC Assessment amounts for the quarters ending 31 March 2023, 30 June 2023, 30 September 2023, 31 December 2023 and 31 March 2024, totalling $165,964.54.[32]
3. Each of the unpaid SGC Assessment amounts for those quarters remained unpaid 21 days after the date the Commissioner issued the DPN to the defendant. As such, the director penalties for the unpaid SGC Assessment amounts for those quarters have not been remitted under s 269‑30(1) of sch 1 to the TAA.[33]
4. There is no record that any payment arrangement has been made by the Company or the defendant with the Commissioner in relation to the obligation to pay the unpaid SGC Assessment amounts.[34] A payment of $10.51 was made in relation to the 31 March 2023 quarter, leaving a balance owing for that quarter of $22,235.23, but no further payments have been made.[35]
5. As at the date these proceedings were commenced, 2 May 2025, the amount of $165,964.54 remained outstanding in respect of the director penalties for the unpaid SGC Assessment amounts. This is verified in an evidentiary certificate signed by the Deputy Commissioner of Taxation under s 350‑10(3) in sch 1 to the TAA.[36]
6. As at 12 November 2025, the amount outstanding in respect of the defendant's liability for director penalties for the unpaid superannuation guarantee charge amounts was unchanged and remained as $165,964.54, as deposed to in the Third Mitchell Affidavit and as stated in the evidentiary certificate attached to that affidavit.[37]

1. Pursuant to s 155‑35 of sch 1 to the TAA, the Commissioner made an amended assessment of the Company's net GST amounts for the taxation periods September 2020 to 31 March 2024, as set out in the statement of claim (together the Amended GST Assessments).[38]
2. The Commissioner gave written notice of the Amended GST Assessments to the Company on about the dates of issue of the notices of the Amended GST Assessments, pursuant to s 155‑10 of sch 1 to the TAA. Details of the assessed amounts of GST for each quarter and the due date for payment are set out in the First Mitchell Affidavit and copies of each of the notices of assessment are attached to it.[39] The total amount of the GST payable in respect of the Amended GST Assessments was $2,576,022.[40]

Director's obligations and penalty liability for Amended GST Assessments

1. Pursuant to s 269‑15 of sch 1 to the TAA, as a director of the Company, the defendant was under an obligation to cause the Company to pay the amounts of the Amended GST Assessments for the taxation periods between 1 January 2022 and 31 March 2024 (Existing Director Penalty Periods).[41] He also began to be under an obligation from the date of his appointment as a director of the Company to cause payment of the Amended GST Assessments for taxation periods September 2020 to 31 December 2021 (New Director Penalty Periods).[42]
2. The defendant continues to be under those obligations until the Company complies with its obligation to pay the Amended GST Assessment amounts, or one of the events in s 269‑15(2) of sch 1 to the TAA occurs, as set out in [29] of these reasons.
3. As the Amended GST Assessment amounts for the Existing Director Penalty Periods were not paid by their due days, the defendant became liable pursuant to s 269‑20(1), (2) and (5) of sch 1 to the TAA, to pay to the Commissioner a penalty equal to the unpaid Amended GST Assessment amounts for those periods.[43]
4. As the Amended GST Assessment amounts for the New Director Penalty Periods had not been paid by their due days when the defendant became a director of the Company and remained unpaid 30 days later, the defendant became liable pursuant to s 269‑20(3), (4) and (5) of sch 1 to the TAA, to pay to the Commissioner a penalty equal to the unpaid Amended GST Assessment amounts for those periods.[44]
5. On 17 February 2025, a DPN was given to the defendant pursuant to s 269‑25 of sch 1 to the TAA in respect of the director penalties for the unpaid Amended GST Assessment amounts for the periods set out in the statement of claim and First Mitchell Affidavit between 1 September 2020 and 31 March 2024, totalling $2,576,022.[45]
6. Each of the Amended GST Assessment amounts for those quarters remained unpaid 21 days after the date the Commissioner issued the DPNs to the defendant. As such, the director penalties for those quarters have not been remitted under s 269‑30(1) of sch 1 to the TAA.[46] There is no record that any payment arrangement has been made by the Company or the defendant with the Commissioner in relation to the obligation to pay the unpaid Amended GST Assessment amounts.[47]
7. No payments or credits have been made since the commencement of the proceedings to reduce the defendant's outstanding liability in respect of the director penalties for the unpaid Amended GST Assessment amounts.[48] The amount outstanding at the date these proceedings were commenced was $2,576,022, as verified in the evidentiary certificate attached to the First Mitchell Affidavit.[49]
8. The amount outstanding as at 12 November 2025 in respect of the defendant's liability for director penalties for the unpaid GST Assessment amounts is unchanged and remains as $2,576,022, as deposed to in the Third Mitchell Affidavit and as stated in the evidentiary certificate attached to that affidavit.[50]

The plaintiff has established a prima facie case that it is entitled to summary judgment

1. I am satisfied that the plaintiff has complied with the procedural requirements for an application for summary judgment. The action, having been commenced by writ, is one to which O 14 RSC applies. The writ is indorsed with a statement of claim. Mr Mitchell deposes in the First Mitchell Affidavit, to the facts verifying the claim, as set out in these reasons. He and Mr Hotger also depose to their belief, on behalf of the plaintiff, that there is no defence to the plaintiff's claim.[51]
2. On the basis of the evidence adduced by the plaintiff, as outlined, I am satisfied the plaintiff has made out a prima facie case.
3. I accept the plaintiff's submission that the operation of the evidentiary provisions outlined and the certificates adduced is that the defendant is prima facie liable to pay the amounts of tax claimed. As stated by the majority of the High Court in Deputy Commissioner of Taxation v Broadbeach Properties Pty Ltd,[52] 'harsh though the operation of these provisions may be, they implement a long‑standing legislative policy to protect the interests of the revenue'.
4. The copies of the certificates signed by the Deputy Commissioner of Taxation attached to the First Mitchell Affidavit and the Third Mitchell Affidavit verify the amounts owed to the Commissioner and are prima facie evidence of the defendant's liability to pay the amount claimed.

Is there an arguable defence or some other reason why there ought to be a trial of the action?

1. As noted, the defendant has not filed any affidavits or submissions in opposition to the Application. He did make a statement to the court, which I have considered and taken into account. In that statement, he expressed his concern and a measure of disbelief that the plaintiff has issued proceedings and brought the Application against him in full knowledge of his financial circumstances.
2. He referred to his inability to pay the amount claimed, saying he is a retiree whose sole income is the age pension, that he has no assets and it is impossible for him to pay the amount claimed. He also said that he had limited involvement with the Company, had no shares in it, no control, and received only a modest director's fee.
3. None of those matters are in evidence, give rise to a defence to the plaintiff's claim or raise any issue to be tried. Hardship or inability to meet a judgment debt is not a reason to refuse an application for summary judgment. As submitted on behalf of the plaintiff, entry of judgment and its enforcement are separate matters.
4. The plaintiff has made out a prima facie case. The defendant has not discharged his evidentiary burden. There is no evidence that any of the statutory defences apply in this case, nor of any arguable defence or other reason why there should be a trial of this action.
5. I am satisfied on the evidence before me, exercising the proper degree of care, that this is a clear case in which it is appropriate to grant summary judgment.

1. For these reasons, I was satisfied that the plaintiff should have leave to bring the Application against the defendant, the time for which has been extended to the date of filing, 14 July 2025. I was also satisfied that summary judgment should be entered for the plaintiff against the defendant. I made orders to that effect and entered judgment against the defendant in the amount of $2,804,639.06, including interest of $62,652.52 pursuant to s 32 of the Supreme Court Act 1935 (WA).
2. The basis upon which the interest is calculated is as set out in the schedule of interest filed by the plaintiff on 28 July 2025, and for the period from 11 March 2025 (being 21 days after the issue of the DPNs) to 28 July 2025 (the date of the schedule). The plaintiff did not claim interest for the period between 29 July 2025 and the date of judgment.
3. I also made an order that the defendant pay the plaintiff's costs of the Application and the action, to be taxed if not agreed. The defendant took no issue with the interest claimed or in relation to the costs order made.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[2] Cologna Investments Pty Ltd as trustee for the P and D Panizza Family Trust v Caranna [2023] WASC 368 [26], [27.2]. See also Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 11] [2016] WASC 235 [4] (Chaney J); Deputy Commissioner of Taxation v Lafferty [2017] WASC 257 (Lafferty) [40] ‑ [41] (Tottle J); Westpac Banking Corporation v Anderson [2017] WASC 106 (Anderson) [38] (Pritchard J).

[3] Deputy Commissioner of Taxation v Heaton (1997) 35 ATR 450, 453.

[7] Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14 [24].

[8] Anderson [103]. See also Lafferty [54] (Tottle J) and the authorities referred to.

[10] Statement of claim indorsed on the writ of summons filed on 2 May 2025 (SOC) [3], [7], [14]; First Mitchell Affidavit [7], 'CM-1'.

[11] For the purpose of div 269, the due day for superannuation guarantee obligations is specified in TAA sch 1, s 269‑10(3) as the day by which the company must lodge a superannuation guarantee statement for the quarter under s 33 of the SGAA, even if the charge is not assessed under that Act on or before that day.

[12] TAA, sch 1 s 269-20(1).

[13] TAA, sch 1 s 269‑20(2).

[14] TAA, sch 1 s 269‑20(5).

[15] TAA, sch 1 s 269‑20(3).

[16] TAA, sch 1 s 269‑20(4).

[17] As provided in TAA, sch 1 s 269-30(1).

[18] See Deputy Commissioner of Taxation of the Commonwealth of Australia v Woodhams [2000] HCA 10; (2000) 199 CLR 370 [19]; Snell v Deputy Commissioner of Taxation [2020] NSWCA 29 [40]; Re Scobie; ex parte Commissioner of Taxation [1995] FCA 1456; (1995) 59 FCR 177 (Re Scobie), 182 ‑ 183.

[19] Deputy Commissioner of Taxation of the Commonwealth of Australia v Woodhams [13] (Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ), considering the equivalent predecessor provisions in div 9 of the Income Tax Assessment Act 1936 (Cth).

[21] TAA, sch 1 s 255‑5(2).

[22] TAA, sch 1 s 255-1, s 250‑10.

[23] Deputy Commissioner of Taxation v Lewer [2001] VSC 114 [6] (Bongiorno J).

[24] TAA, sch 1 s 350‑25(a).

[25] TAA, sch 1 s 350‑20(1).

[26] TAA, sch 1 s 350-10(3).

[27] TAA, sch 1 s 350‑12(1), s 350‑12(2)(a).

[28] TAA, sch 1 s 350‑12(1), s 350‑12(2)(e).

[29] SOC [4]; First Mitchell Affidavit [8].

[30] SOC [5]; First Mitchell Affidavit [9] - [10], 'CM-2'.

[32] First Mitchell Affidavit [12], 'CM-3'; Dillon Affidavit.

[33] First Mitchell Affidavit [13] - [14].

[36] SOC [10]; First Mitchell Affidavit [17] - [18], 'CM-4'.

[37] Third Mitchell Affidavit [5(a)], [6], 'CM-1'.

[38] SOC [11] - [12]; First Mitchell Affidavit [19] - [21].

[39] First Mitchell Affidavit [20], [21], 'CM‑5'.

[40] SOC [12]; First Mitchell Affidavit [21].

[41] SOC [13], [14(a)]; First Mitchell Affidavit [22].

[42] SOC [13], [14(b)]; First Mitchell Affidavit [24].

[43] SOC [15(a)]; First Mitchell Affidavit [23].

[44] SOC [15(b)]; First Mitchell Affidavit [25].

[45] First Mitchell Affidavit [26], 'CM-5', 'CM-6'; Dillon Affidavit.

[46] First Mitchell Affidavit [27] - [28].

[49] First Mitchell Affidavit [31] - [32], 'CM-7'.

[50] Third Mitchell Affidavit [5(b)], [7], 'CM-2'.

[51] First Mitchell Affidavit [34]; Hotger Affidavit [11].

[52] Deputy Commission of Taxation v Broadbeach Properties Pty Ltd [2018] HCA 41; [2008] 237 CLR 473 [44] (Gummow ACJ, Heydon, Crennan and Kiefel JJ).