FEDERAL COURT OF AUSTRALIA

Deputy Commissioner of Taxation v Donoghue [2018] FCA 924

ORDERS

THE COURT ORDERS THAT:

1.    The applicant be taken to have served the application for summary judgment and accompanying affidavit on the respondent by sending them:

(a)    by pre-paid post to 52 Langside Road, Hamilton QLD 4007; and

(b)    by email to donoghuegj@yahoo.com;

on or before 16 May 2016.

2.    Compliance with the time for service of the application for summary judgment and accompanying affidavit set out in r 26.01(3) be dispensed with.

3.    There be judgment against the respondent in the sum of $48,711,223.48.

4.    The respondent pay the applicant’s costs of and incidental to these proceedings, to be taxed, if not agreed, save for the costs of the appearance on 21 May 2018.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised From Transcript)

LOGAN J:

1    On 8 May 2018, I dismissed an appeal by the present respondent Garry John Donoghue against an objection decision in respect of the notices of assessment and notices of income tax and related notice of assessment of shortfall penalty in respect of the income years ended 30 June 2005 to 30 June 2007 inclusive, each issued by the applicant Deputy Commissioner of Taxation (Deputy Commissioner): Donoghue v Commissioner of Taxation [2018] FCA 468.

2    A sequel to that order of dismissal is that the Deputy Commissioner has applied for summary judgment in the present proceeding in respect of outstanding income tax and penalties. The present proceeding has had a peripatetic history. It was commenced in the Supreme Court of New South Wales in 2012 and transferred later that year under cross-vesting legislation to the Supreme Court of Queensland. In 2013, again under cross-vesting legislation, the proceeding was transferred to this Court. Thereafter, the taxation appeal mentioned together with, in this instance, a judicial review proceeding. The latter was ultimately terminated adversely to Mr Donoghue in Donoghue v Commissioner of Taxation; Donoghue v Commissioner of Taxation [2016] HCASL 131.

3    On the final disposal of the judicial review application, the taxation appeal remained for determination. Its history, I have related in earlier judgments. Suffice it to say, for reasons which only Mr Donoghue knows and which were not and are not in evidence, that appeal, notwithstanding an earlier enthusiasm on his part was not, in the end, prosecuted in compliance with the Court’s orders and rules of court.

4    That summary judgment was in prospect was always a given in the overall case management of the judicial review application, the taxation appeal and the present tax recovery proceeding in the event that Mr Donoghue did not enjoy forensic success in respect of the judicial review application or, as the case may be, the taxation appeal.

5    It was always possible as a matter of law for the Deputy Commissioner to seek summary judgment prior to the disposal of those other two proceedings. As a matter of value judgment in his administration as an officer of the Australian Taxation Office under the control of his superior the Commissioner of Taxation, the Deputy Commissioner chose not to seek that summary judgment. Given the conclusive evidentiary quality of a certified notice of assessment and at least after the final disposal of the judicial review application, it would have been difficult for Mr Donoghue to have resisted such summary judgment, even though, as a matter of discretion, this Court may have stayed execution or, in any event, declined to proceed to make a sequestration order against Mr Donoghue in its bankruptcy jurisdiction. The Deputy Commissioner is, though, hardly to be criticised for the making of such a value judgment in the circumstances of the present case.

6    That particular history is relevant in this sense in that, under r 26.01 of the Federal Court Rules 2011 (Cth) (rules), 14 days notice would ordinarily have been required for the entertaining of a summary judgment application. Today falls just short of that period, but as I have observed, such a sequel has always been in prospect for Mr Donoghue in the event of absence of forensic success by him in the other proceedings.

7    I am quite satisfied that the summary judgment application has been served at addresses at which it is inherently likely that the application has come to Mr Donoghue’s attention. Until last year in this proceeding, Mr Donoghue was represented by solicitors. Those solicitors filed a notice of ceasing to act in August 2017. Thereafter, Mr Donoghue was, under the rules, obliged to file a notice of address for service: see r 4.05(2). The Court’s file discloses that, in the present proceeding, he did not do so. That failure could, of itself, have entitled the Deputy Commissioner to seek judgment against him: see r 5.22 and r 5.23. Mr Donoghue did provide an address for service, both postal as well as electronic, upon his solicitor ceasing to act for him in the taxation appeal proceeding. It may very well be that he thought this was sufficient so to do just in the tax recovery proceeding. After all, the two have been managed in conjunction. Strictly, though, he ought to have filed a notice of address for service as well in respect of this proceeding.

8    It is those addresses which have been used by the Deputy Commissioner. Further, the Court used an email address with which there had been prior communication with Mr Donoghue in relation to the recovery proceeding as well as the Hamilton, Brisbane postal address for the purpose of sending, on 14 May 2018, a notice of listing of the present summary judgment application. That notice is now Exhibit 1. Effectively, as the reasons in respect of the dismissal of the tax appeal proceeding disclose, Mr Donoghue has paid no attention either to that proceeding or the present since February this year. Against all of this background and notwithstanding that the Deputy Commissioner has not, in terms, sought, as perhaps he should have, either an order deeming particular addresses to have been sufficient for service or an abridgement of time, I am well satisfied that no injustice is done to Mr Donoghue by making orders which provide for each of those.

9    Another consideration I take into account is that the basis of the defence either in respect of any illegality of assessment or other absence of a tax liability has been finally determined against Mr Donoghue by the disposal of the judicial review proceeding and the dismissal of his taxation appeal. Further, I have in evidence certified copies of each of the notices of assessment concerned as well as a certificate by a Deputy Commissioner of Taxation given under s 255-45 of Sch 1 to the Taxation Administration Act 1953 (Cth) as to the amount presently owing by Mr Donoghue under or as a result of those notices of assessment.

10    As to the certification of the notices of assessment, it is an unfortunate feature of that certification, whilst it bears a signature, it does not bear an office designation related to that signature. There is a separate typed signature as is usually the case in respect of each of the notices of assessment in respect of another Deputy Commissioner. That in itself may be sufficient but, as far as the purported handwritten signature is concerned, via a combination of an obligation under r 24 of the Taxation Regulations 2017 to take as duly signed a document signed by a person who is or was at any time a Deputy Commissioner together with affidavit evidence that the author of the signature is a Deputy Commissioner together also with a comparison by me between that signature and one which does give the person’s designation as found on the certificate given pursuant to s 255, I am satisfied that the notices of assessment have each been certified by a Deputy Commissioner of Taxation. As to the comparison, it seems to me that this permitted between signatures by s 59 of the Evidence Act 1977 (Qld), as applied in the present proceeding by s 79 of the Judiciary Act 1903 (Cth).

11    The result is that I have before me both prima facie evidence in the form of a certificate as to the amount owing, inclusive of general interest charge and conclusive evidence in terms of the certified notices of assessment that the taxable income or penalty amount and all other particulars are correct. It necessarily follows from the foregoing that the Deputy Commissioner is entitled to summary judgment in the amount specified in the certificate. That amount is overall $48,711,223.48. It comprises income tax together with general interest charge accrued of $34,819,498.06 and shortfall penalties together with general interest charge as accrued in the amount of $13,891,725.42.

12    As to costs, the summary judgment application could and, in my view, ought to have been brought on 8 May 2018 so as to be heard forthwith that day in the event that Mr Donoghue failed to appear. He had already by now failed to comply with the orders for security of costs in the taxation appeal proceeding, which itself was an area of default upon which dismissal of that proceeding could have occurred. There has therefore been an unnecessary further appearance in my view.

Associate:

Dated:    15 June 2018