Miller v Chapman, Dep Commissioner of Taxation A15/2000 [2000] HCATrans 466 (10 August 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A15 of 2000

B e t w e e n -

HARRY MILLER

Plaintiff

and

STEPHEN CHAPMAN, DEPUTY COMMISSIONER OF TAXATION

Defendant

Application for remitter

CALLINAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 10 AUGUST 2000, AT 9.30 AM

Copyright in the High Court of Australia

MS S.J. MAHARAJ: If it please your Honour, I appear with MR N. GIANNANTONIO for the Deputy Commissioner of Taxation. (instructed by the Australian Government Solicitor)

HIS HONOUR: Are you Mr Miller?

MR H. MILLER appeared in person.

HIS HONOUR: Yes.

MS MAHARAJ: If it please your Honour, the issue before your Honour is a rather short one and the relevant document, your Honour, is the summons to remit the matter to the Federal Court of Australia in Adelaide, which is dated 4 August 2000 and an affidavit of David Roger Williams, sworn on 4 August 2000. That affidavit will demonstrate to your Honour that section 78B notices have been sent and replies have been returned from all the relevant Attorneys showing that they are not interested in intervening in this matter.

The affidavit of Mr Nicola Giannantonio sworn on 31 July 2000 is in support of the remittal. May I just take your Honour to that document, particularly paragraph 6, your Honour.

HIS HONOUR: I am sorry, which affidavit is that?

MS MAHARAJ: It is the affidavit sworn on 31 July 2000.

HIS HONOUR: Of?

MS MAHARAJ: Mr Nicola Giannantonio.

HIS HONOUR: Yes, I have that.

MS MAHARAJ: Your Honour will see, in paragraph 6 of that document, there are various legal issues that have been summarised as being raised in the statement of claim and globally speaking, your Honour, the status of the Australian Taxation Office is challenged, the delegations of various taxation officers is also challenged, including the validity of the income tax legislation.

We also say, your Honour, that if your Honour looks at the statement of claim, and that ought to be on the Court file as well - - -

HIS HONOUR: Yes, I have read that.

MS MAHARAJ: Particularly paragraph 6 and paragraph 8(a), (b) and (c) all agitate matters of fact upon which evidence will have to be taken. So the short point for the Deputy Commissioner of Taxation, your Honour, is in view of the fact that evidence would have to be taken, and Mr Miller the taxpayer is in Adelaide, on the balance of convenience issues and costs of proceedings, we would ask that the matter be remitted to the Federal Court in Adelaide.

HIS HONOUR: I can remit a matter of my own initiative too, can I not?

MS MAHARAJ: Yes, your Honour can.

HIS HONOUR: What is the section under which you apply?

MS MAHARAJ: Section 44(1).

HIS HONOUR: Yes, thank you.

MS MAHARAJ: If it please your Honour, those are our submissions.

HIS HONOUR: Mr Miller.

MR MILLER: Your Honour, I am just a lay man coming along. Can I just go slowly, or - - -

HIS HONOUR: Yes, Mr Miller.

MR MILLER: The ATO actually seized from my bank account, your Honour, about $15,000 and stopped my business over night. I asked Master Norman and Judge David if they would, on two separate occasions, reinstate that account and rescind the ATO order so I could engage legal advice. I have got no legal advice here today because they would not help me on that. So I ask your Honour if you would help me on that point.

The other thing, your Honour, is that I understand that the ATO is really - these people here are actually not a legal entity and - - -

HIS HONOUR: That is one of the issues in the case that you seek to raise.

MR MILLER: Yes, and Justice Callinan in the High Court on 17 May took the view that the ATO had no legal entity and the ATO actually admitted at that meeting it also had no legal entity.

HIS HONOUR: I am sorry, would you repeat that.

MR MILLER: That Justice Callinan - C-A-L-L-I-N-A-N - - -

HIS HONOUR: That is myself.

MR MILLER: Oh, is it? Sorry, sir. In the High Court on 17 May took the view that the ATO had no legal entity.

HIS HONOUR: No, that is not right.

MR MILLER: Well, I did not say that. It is in - - -

HIS HONOUR: Well, it is wrong.

MR MILLER: It is here, so I did not make that up.

HIS HONOUR: Could I see that? You do not mind if I look at that, Ms Maharaj?

MS MAHARAJ: No, sir, not at all.

MR MILLER: You did have a copy of it. I have not ringed it, but it is up there.

HIS HONOUR: That article is quite inaccurate.

MR MILLER: That is - - -

HIS HONOUR: I did hear a matter in Brisbane, but the decision has not been given yet. And I certainly do not have any recollection of anybody on behalf of the Commissioner making any, as it were, admissions. In any event, the issue is not whether the Australian Tax Office - the question was, as I recollect, nobody was suggesting that the Australian Tax Office was a legal personality, I think what was being argued was that the Commissioner and his officers had legal personalities and legal obligations and responsibilities. But do not trouble about that. That is one of the issues in the case.

MR MILLER: So, to the point, apparently this is my advice from - - -

HIS HONOUR: But, Mr Miller, all that your opponent is seeking is that the matter be transferred to the Federal Court.

MR MILLER: That is what I am at now, sir. So it says, prior to the last hearing, the last hearing I was at court, the Australian Taxation Office moved to join the Institute of Taxation Research Pty Ltd to my case. However, the Institute of Taxation Research Pty Ltd filed a writ with the High Court in Melbourne which was in turn sent to the Canberra Registry of the High Court for consideration and issue. Registrar Harris of the High Court last Friday advised Noel Waters of Waters O'Brien, Solicitors, that the High Court's preferred option was to reissue of the writs as applications to remove the matter to the High Court. Mr Waters accepted the view of the High Court Registrar and is in the process of preparing the same to be filed later this week.

Your Honour, since the matter raised in that application will have a direct effect on this, on my case, on this and other hearings in the same matters, I request that the matter be stood over to be heard simultaneously with the Institute of Taxation Research Pty Ltd application of which you have a copy, your Honour.

HIS HONOUR: Yes, thank you. Ms Maharaj.

MS MAHARAJ: Your Honour, my instructions are that as of 10 am yesterday a check was conducted with the High Court Registry and no relevant writ has been filed. Apart from that, we wish to say nothing more in reply.

HIS HONOUR: In any event, whether the proceedings should be consolidated could be the subject of an application to the Federal Court.

MS MAHARAJ: That is a matter that the Commissioner will consider later on, your Honour.

HIS HONOUR: Thank you. Mr Miller, the High Court today generally does not hear disputed factual questions. The High Court these days is fairly fully, indeed fully engaged, in hearing applications for special leave and appeals and some other special proceedings under the Constitution. So the High Court is very very disinclined to undertake hearings of matters involving disputed factual questions.

In the circumstances, I intend to remit the matter to the Federal Court. If there are proceedings that might, or should, conveniently be joined with the proceedings here today, then that can be made the subject of an application to the Federal Court and the Federal Court can deal with those matters in exactly the same way as you would ask me to deal with them, if it is so minded.

My order will be that these proceedings, the proceedings the subject of this application, be remitted to the Federal Court at Adelaide.

Are any further orders required or any directions sought?

MS MAHARAJ: No, your Honour. That would suffice for the purposes of moving the proceedings to the Federal Court. In relation to costs, your Honour, we would simply - - -

HIS HONOUR: Costs should be reserved, I think.

MS MAHARAJ: Costs should be reserved or in the cause, we are not fussed, your Honour.

HIS HONOUR: I do not know whether somebody wants to give you instructions about directions.

MS MAHARAJ: If you would just bear with me, your Honour. The statement in relation to the costs that I have made is agreeable to the Tax Office.

HIS HONOUR: Very well. The order of the Court will be that the matter be remitted to the Federal Court in Adelaide and that the costs be reserved.

You are excused, Mr Miller. Adjourn the Court.

AT 9.42 AM THE MATTER WAS CONCLUDED