Application of principles to the present case
13 Rule 10.43(3) requires the application for leave to serve out to be accompanied by an affidavit setting out certain matters. In the present case, the application is supported by an affidavit of Fiona Biltris, a public servant employed by the Australian Taxation Office, dated 16 February 2017, and three affidavits of Daniel James Slater, a solicitor employed by the firm acting for the Deputy Commissioner. These affidavits set out the required matters. It is proposed to serve the following documents on Galaxy in Luxembourg:
(a) form 26: 'summary of documents to be served';
(b) the originating application;
(c) the amended statement of claim;
(d) the affidavit of Fiona Biltris affirmed on 16 February 2017; and
(e) translations of the documents listed above at (a) to (d) into French, being one of the official languages of Luxembourg.
14 The proposed method of service is to transmit the documents to the designated competent authority for Luxembourg (being the Public Prosecutor at the Superior Court of Justice) for service by a bailiff. The third affidavit of Mr Slater states that the proposed method of service is permitted by articles 2 to 5 of the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters done at the Hague on 15 November 1965 (the Hague Convention), to which Australia and Luxembourg are parties.
15 Turning then to the requirements of r 10.43(4), I am satisfied that each of these requirements is established. First, the Court has jurisdiction in the proceeding. This is conferred by s 39B(1A)(c) of the Judiciary Act 1903 (Cth), which confers original jurisdiction on the Court in any matter arising under any laws made by the Commonwealth Parliament (other than in respect of certain criminal proceedings). This proceeding concerns matters arising under the tax legislation referred to above. Secondly, the proceeding is of a kind mentioned in r 10.42. In particular, it is of a kind mentioned in items 1 and 15 of r 10.42: see Deputy Commissioner of Taxation v McManus (2015) 101 ATR 567; [2015] FCA 959 at [4] per Pagone J.
16 Thirdly, the affidavit material establishes that the Deputy Commissioner has a prima facie case for the relief claimed against Galaxy in the proceeding. In particular, the affidavit of Ms Biltris states as follows at [5]-[18]:
5. On 30 May 2016 the Commissioner of Taxation (Commissioner) issued a notice of assessment for income tax in respect of the year ended 30 June 2012 (Notice of Assessment). Annexed to this affidavit and marked "FB1" is a copy of the Notice of Assessment.
6. The Notice of Assessment was served on the Respondent on or about 30 May 2016 pursuant to section 174 of the Income Tax Assessment Act 1936 (Cth) and the Income Tax Regulations 1936.
7. The Respondent failed to pay the Notice of Assessment on or before the due date specified in the Notice of Assessment.
8. By reason of the failure to pay income tax by the relevant due date the Respondent became liable to pay the general interest charge pursuant to section 5-15 of the Income Tax Assessment Act 1997 (Cth) (ITAA 1997) and Part IIA of the TAA 1953.
Failure to Lodge an Income Tax Return
9. The Respondent failed to give the Commissioner an income tax return for the year ended 30 June 2012 (Return) on or before the day on which the return was required to be given to the Commissioner.
10. By reason of the failure to give the Commissioner the Return under subsection 161(1) of the ITAA 1936, the Respondent became liable to pay a penalty pursuant to section 286-75 in Schedule 1 to the TAA 1953 (Failure to Lodge Penalty).
11. On 27 May 2016 a notice of the administrative penalty was served on the Respondent pursuant to section 298-10 in Schedule 1 to the TAA 1953 (Notice). Annexed to this affidavit and marked "FB2" is a copy of the notice.
12. The Respondent failed to pay the Failure to Lodge Penalty on or before the due date specified in the Notice.
13. By reason of the Respondent's failure to pay the administrative penalty on or before the due date specified in the notice, the Respondent became liable to pay the general interest charge pursuant to section 298-25 in Schedule 1 and Part IIA of the TAA 1953.
Administrative Penalty
14. By reason of the Respondent's failure to give the Commissioner the Return on or before the day on which it was required to be given, [the Respondent] became liable to pay a penalty pursuant to section 284-75 of Schedule 1 to the TAA 1953 (administrative penalty).
15. On 30 May 2016 the Commissioner issued a notice of administrative penalty (Administrative Penalty Notice) to the Respondent in accordance with section 298-10 of Schedule 1 to the TAA 1953. Annexed to this affidavit and marked "FB3" is a copy of the Administrative Penalty Notice.
16. The Respondent failed to pay the administrative penalty on or before the relevant due date.
17. By reason of the Respondent's failure to pay the Statement Penalty by the relevant due date, the Respondent became liable to pay the general interest charge pursuant to section 298-25 of Schedule 1 to the TAA 1953 and Part IIA of the TAA 1953.
18. Now produced and shown to me and marked with "FB4" is a certificate in writing pursuant to section 255-45 of Schedule 1 to the TAA 1953 under the hand of a Deputy Commissioner which states that, as at 16 February 2017:
(a) Galaxy S.À R.L. SICAR has a tax-related liability;
(b) the notice of assessment for the year ended 30 June 2012 is taken to have been served on Galaxy S.À R.L. SICAR under a taxation law;
(c) the notice of penalty for failure to lodge documents on time for the year ended 30 June 2012 is taken to have been served on Galaxy S.À R.L. SICAR under a taxation law;
(d) the notice of assessment of penalty for failing to provide a document for the year ended 30 June 2012 is taken to have been served on Galaxy S.À R.L. SICAR under a taxation law;
(e) the sum of $109,202,784.91 is, as at 16 February 2017, a debt due and payable by Galaxy S.À R.L. SICAR to the Commonwealth of Australia.
17 It follows that the preconditions for making an order for service outside Australia are established. In my view, it is appropriate in the circumstances to make such an order. A matter exists that warrants the use of the Court's processes and justifies the involvement of a foreign respondent.
18 Accordingly, it is appropriate to grant leave to the Deputy Commissioner to serve the court documents referred to above on Galaxy in Luxembourg in accordance with the Hague Convention. I will make orders to this effect.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moshinsky.