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[2000] FCA 1108
Federal Court of Australia
2000-08-14
Sackville J
Original judgment source is linked above.
the applicant's motion 18 In my earlier judgment, I stood over a motion that had been filed by the applicant seeking an order restraining proceedings that had been brought against him by the Commissioner of Taxation in the District Court of New South Wales. In view of the conclusion I have reached, the motion should be dismissed. In any event, there is evidence that the District Court proceedings have now been resolved by consent orders.
conclusion 19 The respondents' motion for summary dismissal of the proceedings succeeds. The application should be dismissed. 20 The applicant should pay the respondents' costs of the proceedings, including the costs of the motion filed by them. Mr Williams sought an order for costs in favour of the Commissioner, who was granted leave to intervene in the proceedings in view of the fact that the party initially named as a respondent (the Australian Taxation Office) is not an entity capable of being sued. In the circumstances, I think it appropriate that the applicant should also pay the costs of the Commissioner of Taxation in so far as they are not covered by the order in favour of the respondents. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice SACKVILLE.
Associate: Dated: 14 August 2000 The applicant appeared in person. Counsel for the Respondent: Mr N J Williams
Solicitor for the Respondent: Australian Government Solicitor
Sibir
Glanville
the application for summary dismissal 1 In a judgment delivered on 20 July 2000, I directed that the applicant was to be taken as having filed a statement of claim in these proceedings on 22 June 2000: Sibir v Glenville [2000] FCA 968. (It appears that the first respondent's name was incorrectly recorded in that judgment.) I gave leave to the respondents, if so advised, to file a motion seeking orders striking out the statement of claim and dismissing the proceedings. I also stood over a motion by the applicant insofar as it sought a stay of proceedings instituted against him in the District Court of New South Wales by the Deputy Commissioner of Taxation. The earlier judgment should be read in conjunction with this judgment. 2 In the event, the respondents filed a motion seeking, inter alia, orders that the proceedings be stayed or dismissed generally pursuant to Federal Court Rules ("FCR") O 20 r 2. Order 20 r 2 provides as follows: "(1) Where in any proceeding it appears to the Court that in relation to the proceeding generally or in relation to any claim for relief in the proceeding - (a) no reasonable cause of action is disclosed; (b) the proceeding is frivolous or vexatious; or (c) the proceeding is an abuse of the process of the Court, the Court may order that the proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding. (2) The Court may receive evidence on the hearing of an application for an order under sub-rule (1)." 3 The applicant filed affidavits in opposition to the motion. 4 The statement of claim filed by the applicant is set out in the earlier judgment. It is convenient, nonetheless, to set out the statement of claim here: "1. The applicant is a professional architect for over 30 years with a Degree from University of New South Wales and a Diploma in Structural Engineering and Design from the British Institute of Technology. The Applicant has a clean record and no convictions have ever been recorded against him in his business endeavours. The applicant is entitled to sue in the business name of Alex Sabir Architect as registered by the Board of Architects of NSW, Registration No 2961. 2. At all material times since 1989 the applicant and the respondents have engaged in verbal and written correspondence concerning the applicant's business tax assessment. 3. The respondents are public service officers acting on behalf of the Australian Taxation Office Parramatta in the state of New South Wales. Under the Crown Proceedings Act they are each capable of being sued by their individual names and are liable for their own actions on behalf of the Australian Taxation Office. … 4. The applicant was entitled to a review of his tax for year ending 30 June 1989 as five letters were submitted within the 60 days time limitation as under the Income Tax Assessment Act 1936 and under the Income Regulation Section 207. 5. The respondents engaged in malicious acts of threats and harassment causing psychological emotional stress aggravating other related health problems to the applicant in their attempts to collect the tax for 1989. 6. The applicant declares that all the tax returns are up to date, except 1989 which is in dispute. Also, the tax assessment dated 17 August 1998 which included the 1989 period is disputed as $38,471 in tax credits should have been recorded. 7. The Affidavit made by the Deponent Ohnmar Khin from the Australian Taxation Office in the District Court of Australia No 519/1999 and dated 8 June 2000 includes Notice of Assessment for year ending June 1988. As I have been in the middle stages of bankruptcy until October 1989, it seems to be unfair that my claim for office losses of $244,000 were reduced to $138,328 by Mr Darren Glenville, on my assessment for the tax year ending June 1989. A few weeks later I received a taxation bill for $44,687.57 dated 8 August 1990 then another statement for $18,424.79 dated 8 August 1990. On the following week I received a further tax assessment of $17,389.57 dated 15 August 1990. In the latest assessment dated 17 August 1998 as included in my registered Application refer to Appendix "D", states that on 19 September 1990 the debit was $18,424.79 and a credit of $18,421.79 on 15 August 1990 with a resultant debit of $3.00 only. There is much confusion in all these assessment. Since then a total of $37,771.01 in credits was made and not $27,990.01 as stated by the Australian Taxation Office. 8. The applicant declares that due to the problems encountered over this matter, that severe and prolonged depression causing a build up of severe anxiety and stress/tension etc has been suffered by the applicant and he was not able to carry out his business duties effectively. Effective loss of productivity is estimated at 55%. Also the closure of four offices due to the harassment and threats and letters received from Australian Taxation Officers (respondents) caused a great deal of goodwill losses. 9. The total claim for damages is estimated at $1,068,717.00 less any amount due for Tax for 1989 as determined by the Federal Court of Australia. Particulars: Refer to details as set out in the Application dated and registered in the Federal Court of Australia on 27 April 2000 No N413 of 2000."
(1964) 112 CLR 125
(1983) 154 CLR 87