Goldberg v Commissioner of State Revenue [2002] VSCA 26

5. On 4 May 2000 an order was made in the Magistrates' Court on the complaint of the Commissioner of State Revenue that Mr Goldberg pay $769.96 with interest of $50.33 and costs of $722. The Commissioner's claim was based, it appears, upon an assessment under s.137B(4) of the Stamps Act 1958 to stamp duty and penalty arising out of the registration of a motor car.

8. Dissatisfied with the order made on 4 May, Mr Goldberg sought to appeal under s.109 of the Magistrates' Court Act 1989. In support of his appeal he filed an affidavit which he swore on 25 May 2000 and, in accordance with Order 58 Part 3 of Chapter I of the Rules, made application to a Master on 30 May 2000. That application was dismissed. Accordingly, subject to appeal, the appeal itself from the Magistrate's Court stood dismissed: see Rule 58.10.

11. Again dissatisfied, Mr Goldberg appealed from the Master to a judge in the Trial Division; as to which see Rule 77.05(3). Probably under that Rule no notice was needed as the matter was still proceeding ex parte but, be that as it may, a notice of appeal was filed dated 2 June 2000 with a further affidavit sworn by Mr Goldberg on the same day.

14. The appeal from the Master, which was by way of hearing de novo, was heard and determined by Beach, J on 14 June 2000. The appeal was dismissed. As recorded in the authenticated order, it was dismissed because his Honour could "discern no question of law raised by the proposed appeal" from the Magistrates' Court. Nor, according to the authenticated order, had the appellant satisfied the judge "that he has a prima facie case for relief arising from" the order made in the Magistrates' Court on 4 May.

17. Again dissatisfied, Mr Goldberg filed a notice of appeal to this court dated 22 June 2000. Two grounds are stated: that the appellant "was denied natural justice by the order made where there was no evidence before the court which could lead to such finding against the appellant" and, after making some amendments to the formulation, that no reasonable judge "could come to the conclusion that the appellant was rightly convicted on evidence before him". The reference to "convicted" is, of course, a slip; the proceedings in the Magistrates' Court were purely civil.

20. The question for us is whether his Honour erred on 14 June in dismissing what was, in effect, Mr Goldberg's application under Order 58 for the order necessary to initiate the appeal from the Magistrates' Court to the Trial Division. Such an appeal is authorised only on a question of law and under Order 58 a first step is to obtain an order identifying the question of law or questions of law involved. It was at that step that the appellant stumbled before the Master and again before the judge.

23. It is important to observe at the outset that, because the initial application under Order 58 is made ex parte, Mr Goldberg's claim to appeal falls to be assessed, for the time being at least, on the material filed by the appellant himself. At this stage there is no answering affidavit and no version of events in the Magistrates' Court save his. Whether or not that will remain so should the appeal proceed, we cannot tell. But I must say that the affidavit upon which we necessarily have to proceed at this stage is very skimpy and, I imagine, less than complete.

26. According to Mr Goldberg's affidavit sworn on 25 May 2000, the complaint in the Magistrates' Court related to "stamp duty payable on a motor vehicle at the time of registration by" him. On or about 9 January 1997, he says, he bought a Ford Mondeo and on 10 or 11 February 1999 he presented the car for registration. A value was fixed and he paid the stamp duty required. Having paid the stamp duty required at the time of registration, Mr Goldberg is resisting the claim for payment of anything further.

29. Under the relevant provisions of the Stamps Act, however, it is not enough that Mr Goldberg paid the stamp duty demanded upon registration; for, under s.137B, which was not removed from the Act until 1 May 1999, the Commissioner of State Revenue was entitled, in certain circumstances, to cause an assessment to be made of the amount which, in his judgment, ought to be levied. And upon notice of the assessment being served, the amount became payable on the date specified in the notice. That is how I read sub-ss.(4), (5), (5A) and (5B) of s.137B. That must have been how the Commissioner put his case in the Magistrates' Court, as I read Mr Goldberg's affidavit; for he exhibits just such a notice of assessment and an accompanying certificate under s.166B of the Stamps Act, a certificate which by that section is made evidence of the matters stated in it. I think it probably plain enough from Mr Goldberg's affidavit that the Magistrates' Court based its orders on these two documents.

32. What then is the complaint of Mr Goldberg? In his affidavit of 25 May he makes the point that the assessment was "written out almost two months after" the car was registered, contrary, he says, to the statute. As he puts it in paragraph 8 of his affidavit:

"I have submitted to [the magistrate] that Notice of Assessment can only be done at the time of registration of motor car as required by the Stamps Act 1958 and the person making the assessment must see the car. In this case the second assessment was not made on 11 February 1999 and the State Revenue Officer did not see the said car".

But there is no warrant for either of these submissions. There is nothing in s.137B(4) to require the assessment to be made at the time the motor car is registered. Indeed, that would conflict with the circumstances, as described in that sub-section, in which an assessment can be made. Nor, as I read the statute, is there any requirement that the person making the assessment see the motor car. There is nothing in these points.

37. Then in the affidavit of 25 May, Mr Goldberg complains that there was "no pre-trial conference in this matter despite the fact that the claim is over $1000". But the claim was not "over $1000" and a pre-trial conference was not mandated. In the course of his submissions this morning, Mr Goldberg told us that he was party to many like disputes over the stamp duty payable upon the registration of motor cars, and perhaps he confused the subject matter of this claim with the subject matter of another. But I say no more about that.

40. Mr Goldberg's next complaint in the affidavit of 25 May is that, whatever the magistrate looked at during "the so-called hearing" had not been "included as exhibits on court records". But again there is no requirement that it should be otherwise. In particular, there is no requirement of which I am aware that documents put in evidence in the Magistrates' Court be included somehow in the court record.

43. Finally, in the affidavit of 25 May Mr Goldberg complains about non-receipt of the assessment. In paragraph 9 he puts it this way:

"I gave evidence that I have paid the stamp duty required by the Act at the time of registration and to my best knowledge and belief I did not receive any assessment or any correspondence at all on this matter. I was not aware what this complaint related to until the hearing when I was given the registration number of the car.".

In the course of his submissions to us this morning, Mr Goldberg said that he told the magistrate that, to the best of his knowledge and belief, he had not received the notice of assessment, that being the document upon which the Commissioner was relying before the magistrate. As I have said, that document is exhibited to Mr Goldberg's affidavit, and I take it that in his evidence to the magistrate he said that to the best of his knowledge and belief he had not received that document. That must be so if, as he claims in the affidavit, he was not aware of the registration number of the car, for it is given in the notice of assessment A78792. I shall return to this point of non-receipt in a moment.

48. So much for the complaints made in the affidavit of 25 May 2000. What then of the further affidavit of 2 June? Mr Goldberg's complaint here is contained in paragraph 7 which reads:

"This matter is a clear example of a trumped up complaint, a figment of someone's imagination which is brought against me which doesn't rely on any facts whatsoever. (i) There was no evidence before the Court that I made a Declaration as to the value of said motor car; (ii) There was no evidence that I was served with a Notice of Assessment made pursuant to the Stamps Act 1958; (iii) There was no evidence that the Notice of Assessment was made on the day of registration of said motor car pursuant to the Stamps Act 1958; (iv) There was no evidence being led, nor documentary papers admitted into the records of court proceedings. There is nothing on Court records.".

The introductory lines are, of course, mere abuse. There was no evidence that the complaint against Mr. Goldberg was "trumped up" or that it was "a figment of someone's imagination". For the rest, the claim against him in the Magistrates' Court was based upon the notice of assessment and it was irrelevant to that claim that "there was no evidence before the Court" of a declaration by Mr Goldberg "as to the value of said motor car". Secondly, it was not correct to say that there was "no evidence that" Mr Goldberg "was served with a Notice of Assessment"; for one of the matters which the certificate under s.166B went to prove was that notice of the assessment "was duly served". (That is subject to what I shall say in a moment about that certificate.) And the third and fourth points taken in paragraph 7 I have already despatched. The assessment did not have to be made on the day of registration of the motor car, nor did the documents in evidence have to be on the court record.

53. At the commencement of the affidavit sworn on 25 May 2000, as that document is reproduced in the Appeal Book, there is a statement of "grounds of appeal"; see p.2 of the Appeal Book. I am not clear about the relationship of these so-called grounds of appeal to the body of the affidavit which follows immediately (at pp.3 and following), but that does not matter. Four grounds are specified (one in two parts), and perhaps these were the questions which, in the submission of Mr Goldberg to the Master, were raised by the appeal.

56. There is nothing in three of them: the absence of any evidence that the assessment was made on the day of the registration of the motor car; the absence of any evidence that the declaration of market value, made on or about 11 February 1999 when the car was registered, was made by the appellant; and, thirdly, alleged error in the magistrate's failing to include in the court record the documents relied upon. But what remains are these questions:

"1. Is there any evidence that the Appellant has been served with a Notice of Assessment made pursuant to the Stamps Act 1958? 4. Did the Magistrate err in:

(i) admitting documentary evidence without evidence being led"?

I find these points somewhat troubling.

63. I have mentioned already that, under s.137B, notice of assessment is to be served on the person liable to pay. Under sub-s.(5B) the amount specified in the notice is payable on or before the date specified in the notice "being not less than 30 days after the date of service of the notice". According to Mr Goldberg's affidavit of 25 May, if I have followed it correctly, he told the magistrate that he did not receive the notice of assessment. Given that a certificate was put in evidence under s.166B, it seems fair to conclude, at least on the affidavits that we have before us, that the Commissioner relied simply upon the certificate which was tendered, and according to which "a Notice of Assessment of stamp duty was duly served on David Goldberg by way of ordinary post on or about 9 April 1999." According to s.166B, the certificate is "admissible in evidence in any proceedings against a person under this Act and, in the absence of evidence to the contrary, shall be proof of the matters stated in the certificate".

66. More than one problem arises here. First, according to Mr Goldberg's own affidavit, he did give evidence of non-receipt. The significance of his assertion that to the best of his knowledge and belief he did not receive the document which had been sent to him, "by way of ordinary post" according to the certificate under s.166B, might be debatable if service by post was authorised, especially if the document was then deemed by statute to have been served once posted. But I am not yet clear that that service by post is authorised under this statute. Section 166AD(1) authorises service by post of "any process" if "in ... proceedings for the recovery of any amount due under this Act". There must be a question whether s.166AD authorises the service by post of the notice of assessment which gives rise to the liability and which obviously must precede the institution of a proceeding to recover the amount stated in it. And, if there is no provision for service by post, we are simply left with the statutory requirement that notice of assessment "be served", in which case evidence of non-receipt might assume some importance. In particular, was that "evidence to the contrary" within the meaning of s.166B?

69. I do not say that the magistrate was necessarily bound to have accepted Mr Goldberg's assertion that he did not receive the document if, indeed, that was the evidence actually given. We are constrained, as I have said, by the affidavit material before us and nothing much beyond what I have just stated is mentioned in the affidavit. In the course of submissions, Mr Goldberg said to us that he told the magistrate that at the time he had been away overseas and that on his return he was not given the document by the person whom he had left in charge of his mail. Obviously, then, more was said to the magistrate than appears in the affidavit. But, as I say, we have only the affidavit material before us upon which to proceed. We cannot anticipate the evidence that will be before a judge, should the appeal proceed.

72. The possibility of "evidence to the contrary" is but one problem in accepting the certificate in evidence as proof of the matters stated in it. The second is this: that the certificate purports to have been signed by one Steven Polites, who is described in it as the "delegate of the Commissioner of State Revenue". In providing for judicial notice, s.166C refers only to "the official signature of a person who is or has been the Comptroller of Stamps or a Deputy Comptroller of Stamps". The expression "Comptroller of Stamps" must be taken to mean the Commissioner of State Revenue under the Taxation Administration Act 1997 by virtue of a definition inserted in s.3 of the Stamps Act by the Taxation Administration Act 1997; see s.138 and Item 13.1 in the Schedule. And, indeed, there is some provision made for delegation in s.69 of the Taxation Administration Act 1997. But the problem remains. What is there in s.166C to authorise the Court to take judicial notice of the signature of the "delegate of the Commissioner of State Revenue"? Does s.69 have any relevance to the present proceeding? And, whether or not the signature on the certificate had to be proved, can it be said that the certificate, signed as it was, answered the description with which s.166B commences?

75. Here we find ourselves constrained, not just by the material put before us, but also by the absence of the respondent to this appeal. Notice of this appeal from the Trial Division was given by Mr Goldberg to the Commissioner of State Revenue, notwithstanding that the Commissioner has not yet formally appeared in this proceeding (which, as I earlier mentioned, has been proceeding ex parte). A letter from the Commissioner was received by the Registrar of this Court expressing an intention to abide the result, but not to appear today. Accordingly, the Commissioner is not represented before us and we are denied assistance in the interpretation of this complex legislation. But, if s.166C is the relevant provision about judicial notice (and I emphasise the condition), there is at least a question how the certificate was received into evidence without formal proof of the signature and also a question whether the certificate, signed as it was, answered the description with which s.166B commences.

78. On this basis, the following questions of law appear to me to arise.

(1) Was it open to the magistrate to admit the certificate which was tendered into evidence as a certificate under s.166B of the Stamps Act 1958 and to do so without proof of the signature?

(2) Was it open to the magistrate to find that notice of the assessment No.A78792 had been served on Mr Goldberg within the meaning of s.137B(5) of that Act?

84. In identifying these questions, I must emphasise that I express no opinion about how they should be answered. They are no more than questions of law which,

as I see it, arise in this matter on the limited material we have and in the absence of any argument on behalf of the Commissioner. Mr. Goldberg should understand that the identification of the questions does not say anything about his ultimate success or failure on the appeal. That will be determined on all of the material which by then is available and, I should imagine, after submissions not only from the appellant but also from the respondent.

88. None the less it follows from the foregoing that, in my opinion, there was error on 14 June 2000 when his Honour dismissed this application on appeal from the Master. I think that the application should have succeeded and an order been made under Order 58 Part 3 of Chapter I of the Rules, identifying the questions which I have just set out.

91. To that end I would allow this appeal, set aside the order of dismissal made on 14 June 2000 and remit the appeal from the Master to a judge of the Trial Division for further consideration according to law.

96. I agree, and I would emphasise that I am likewise constrained in reaching any conclusions in this matter by the absence of any argument on behalf of the named respondent, the Commissioner of State Revenue.

(1) That the appeal be allowed;

(2) That the order made on 14 June 2000 be set aside;

(3) That the appeal from the Master be remitted to a judge of the Trial Division for further consideration according to law;

(4) That the costs of this appeal are reserved to the judge hearing the appeal from the Magistrates' Court.

112. It should be understood that a judge of the Trial Division will have to make orders in conventional terms, identifying the relevant order of the Magistrates' Court against which appeal is brought and the questions of law raised by the appeal, which have been referred to in the judgment of Phillips, J.A.

115. It will, of course, be necessary also to make the various directions for service and filing of affidavits and for the listing of the appeal, together with such other matters as are thought appropriate by the judge hearing the matter as remitted.