[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[2]
Judgment
THE COURT: This is an appeal from a judgment in favour of the Deputy Commissioner of Taxation for recovery of income tax, administrative penalties and interest charges in the sum of $4,317,316.07 entered on 14 February 2019: Deputy Commissioner of Taxation v Lamont [2019] NSWSC 92.
The following tax-related liabilities are the subject of that judgment:
1. Income tax liabilities for the years ended 30 June 2002 to 30 June 2010, 30 June 2012 and 30 June 2013;
2. Administrative penalties in respect of shortfall amounts for the years ended 30 June 2002 to 30 June 2008;
3. Shortfall interest charges in respect of additional amounts of income tax due as a result of amended assessments for the years ended 30 June 2005 to 30 June 2008;
4. An administrative penalty for failure to provide an income tax return for the year ended 30 June 2013, on or before 31 October 2013; and
5. General interest charges.
By his defence, the appellant admitted that the assessments and amended assessments relied on by the respondent were issued and served for the relevant tax years, but took issue with the correctness of those assessments, asserting that they erroneously included income of three companies with which he was associated at the relevant time. By reason of that asserted error, he disputed that he was liable to pay the general interest charges, shortfall interest charges and administrative penalties claimed. The appellant also admitted that he failed to lodge a return for the year ended 30 June 2013 by the required date, but disputed that he thereby became liable to pay an administrative penalty. Finally in answer to the whole of the Deputy Commissioner's claim, the appellant maintained that it was satisfied by his delivery to the Deputy Commissioner on or about 10 July 2018 of a document described as a "promissory note".
The evidence relied on in support of the Deputy Commissioner's claim is summarised, and the appellant's defence dealt with by the primary judge, between Judgment [13] and [26].
The notice of appeal filed on 14 May 2019 contains four paragraphs under the heading "appeal grounds". Those paragraphs, and the appellant's written and oral submissions, rely on four principal matters as constituting or involving errors of the primary judge. It is convenient to deal with each of those matters in turn.
First, it is said that the appellant was denied his "right" to have a Mr Mark Andrews act as his "attorney" in the defence of his claim. At the commencement of argument before the primary judge, the appellant announced that he had brought his "attorney, and I will be requiring him to address the court, and I have an appearance notice". That "attorney", Mr Andrews, was present and told the court that he was not a solicitor or officer of the court. On that basis, his Honour refused to permit the appellant to file a notice of appearance which identified Mr Andrews as his "legal representative". There was no error in his Honour doing so.
Under the Uniform Civil Procedure Rules 2005 (NSW), the appellant was taken to have entered an appearance by the filing of his defence (r 6.9(2)). He signed that defence, acknowledging that he was not "legally represented". Under r 7.1(1), the appellant as a natural person was required to defend the proceedings either by a solicitor acting on his behalf or in person. That is the effect of that sub-rule, taking account of the definition in Civil Procedure Act 2005 (NSW), s 19(2) that "carrying on proceedings" includes "defend proceedings". In that circumstance, the primary judge was right to refuse to receive a notice of appearance which purported to identify Mr Andrews as the appellant's "attorney". That notice would not have complied with r 6.9(1) and Form 6A which only permit such an appearance by a "legal representative", Civil Procedure Act, s 17(3) requiring that any notice of appearance be in the approved form.
Furthermore, in relation to this first argument, whilst r 7.1(1) reflects the general rule that the court will not allow an appearance by a person who is not admitted to practice before it (as to which see Damjanovic v Maley (2002) 55 NSWLR 149 at [60]-[61]; [2002] NSWCA 230), the court can, in controlling its procedures, grant leave to any person to appear on behalf of a litigant if that is in the interests of justice. Before the primary judge, the appellant did not make an application that Mr Andrews be permitted to represent him for the purposes of putting all or part of his oral argument. Nor did he identify any reason why that should occur in circumstances where he had no difficulty in communicating in English and there was no other reason to suggest that he was not capable of explaining the basis of his defence to the Deputy Commissioner's claim. Had he made such an application, there would have been no error in his Honour refusing leave. This first matter does not identify any error on the part of the primary judge.
Secondly, it is contended that the court and primary judge had "no jurisdiction, authority, status and standing to proceed" in the absence of the appellant's consent. This argument bears some resemblance to the arguments made in Warren Ronald Wichman v Pepper Finance Corporation Limited [2019] NSWCA 195 especially at [18], [19]. That the appellant did not subjectively "consent" to the court's jurisdiction and to the primary judge exercising that jurisdiction, and to the application of the taxation laws of the Commonwealth, does not call into question either the application of those laws to the appellant or the jurisdiction of the Supreme Court of New South Wales to give effect to them. This second argument is rejected.
Thirdly, it is said that the respondent's tax-related liabilities were satisfied by the delivery of the "promissory note" document, which on its face purported to entitle the Deputy Commissioner of Taxation to collect $5 million at the "front entrance" of an address in Queens Street, Campbelltown at 10:45am on 19 July 2018. The appellant did not tender or read any evidence in support of this defence before the primary judge, notwithstanding that he was given ample opportunity to do so: Judgment [12]. Accordingly, his Honour did not err in rejecting this defence at Judgment [23]. It is not necessary to address in any detail the substance of this argument, which on its face has no merit whatsoever. The taxpayer was required, by s 21 of the Taxation Administration Regulations 2017 (Cth), to pay any tax-related liability "in Australian currency". The so-called promissory note was not Australian currency, or a method of payment of that currency approved by the Commissioner.
Fourthly, it is said that the tax assessed to the appellant was incorrectly calculated. However, as the primary judge rightly held, the notices of assessment and amended assessments, which the evidence established had been issued and served, were conclusive evidence that those assessments were issued, properly made and that the amounts and particulars of each assessment were correct: Taxation Administration Act 1953 (Cth), Sch 1, s 350-10(1), table item 2. This court has no jurisdiction to go behind those assessments, the position in this respect being as summarised by Payne JA in Anglo American Investments Pty Ltd v Deputy Commissioner of Taxation [2017] NSWCA 17 at [43]-[54].
There are other more general arguments which, whilst in some respects relying on recognisable legal concepts or terminology, do not in the present context raise matters relevant to the correctness or otherwise of the primary judgment. Those arguments include that the appellant had some "right to subrogation"; that the primary judge erred in not having regard to the appellant's written evidence in circumstances where, as the primary judge explained at Judgment [9]-[12], the appellant did not read any affidavits or tender any evidence in his case; that the Uniform Civil Procedure Rules are invalid because the Civil Procedure Act never received royal assent; and that the primary judge was acting in an administrative capacity rather than a judicial capacity. The first of these arguments appears to claim that the appellant somehow became subrogated to the respondent's right to recover the (unpaid) tax debt the subject of the proceeding. How any right of subrogation arose is not explained or likely to be explicable by any sensible legal analysis. None of the remaining three propositions is correct.
Finally, in oral argument in reply, the appellant sought to put before this Court, either by way of evidence or in support of argument, documents which it was said appointed each member of the Court a "fiduciary trustee", and which involved some requisition of "abandoned funds" said to have been created by "bonds" which were described as arising in some way from the first-instance proceedings. This submission adopted what has been described elsewhere as "pseudolegal commercial" argument (see Wichman v Pepper Finance at [18]), but made no sense. The relevant documents were marked for identification, and have not been received or read by the Court.
In the result, the appeal is dismissed with costs.
[3]
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Decision last updated: 06 September 2019