Harris v Deputy Commissioner of Taxation (Small Business) [2001] NSWSC 694 (3 August 2001)

Last Updated: 27 August 2001

NEW SOUTH WALES SUPREME COURT

CITATION: Harris v Deputy Commissioner of Taxation (Small Business) [2001] NSWSC 694



CURRENT JURISDICTION: Common Law

FILE NUMBER(S): 20090/99

HEARING DATE{S): 3 August 2001

JUDGMENT DATE: 03/08/2001

PARTIES:
John Harris v Deputy Commissioner of Taxation (Small Business)

JUDGMENT OF: Michael Grove J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:
In person (Plaintiff)
R. Lancaster (Defendant)

SOLICITORS:

Australian Government Solicitor (Defendant)


CATCHWORDS:
TORT
PLEADING
DEMONSTRATION OF CAUSE OF ACTION
INADEQUACY
SUMMARY RELIEF

ACTS CITED:


DECISION:
Orders Made.


JUDGMENT:

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION


MICHAEL GROVE J

Friday 3 August 2001


20090/99 - JOHN HARRIS v DEPUTY COMMISSIONER OF TAXATION


JUDGMENT


1 HIS HONOUR: On 20 June 2001 there were before the Court two notices of motion which I dealt with in a judgment delivered on 2 July 2001. I treat what was said in that judgment as incorporated in the current remarks. Before proceeding however there are some matters of which, in fairness to Mr Harris in particular, there should be a recording.

2 The listing today followed a direction which I gave in the judgment of 2 July last. In the Sydney Morning Herald this morning, the matter was listed "for directions". Mr Harris claims that he understood from that listing that I would today simply give some further directions for a future hearing. I cannot accept that that misunderstanding was held.

3 A copy of the judgment of 2 July was despatched to Mr Harris. He has acknowledged that he has received it and, indeed, has made references to it during the course of his argument today. That judgment made it plain that what was to occur today was a consideration of the possible validity manifest in any pleading of a claim in defamation sought to be brought by the plaintiff.

4 Throughout the proceedings, Mr Harris has appeared for himself as the transcript of his argument will show.

5 The next matter that I should record is that there was a listing at 9.30 this morning and, very substantially, Mr Harris addressed me from then until 11.30. He resumed his address for about ten or fifteen minutes prior to midday when it was necessary for me to adjourn to attend other matters. The hearing was resumed at 2pm and I record that I placed a time limit upon Mr Harris, requiring him to finish his submissions by 2.30pm. As I say, I record these matters in order to make the situation clear and in Mr Harris' interests, should he wish to have the matter reviewed elsewhere.

6 The third matter, which I mention purely as a matter of record, relates to the s 218 notices under the Income Tax Assessment Act which were the subject of reference in the earlier judgment.

7 In the course of the day, it was mentioned by counsel appearing in the interests of the defendants (by which term I incorporate those presently sued and those whom it is desired to join pursuant to Mr Harris' notice of motion) that there were, in fact, no proceedings on foot challenging the validity of those notices.

8 Mr Harris points out that he has claimed, in these proceedings at least, that in some Federal Court proceedings or, perhaps, in the Administrative Appeals Tribunal, he asserts that the notices were invalid, as I understand it, principally for the reason that they preceded the issue of the default assessments upon which they were based. It is not necessary for present purposes for me to make a judgment about this matter.

9 I should observe that there is, obviously, a dispute in the sense that Mr Harris and counsel for the defendant are at cross-purposes in response to my enquiry. What Mr Lancaster has said is that there is specifically no proceeding on foot seeking to challenge the notices.

10 What Mr Harris asserts is that in the course of challenges which he makes, he has protested about those notices and has suggested that they are invalid for the reason that I have mentioned and possibly for other reasons as well. As I have indicated, nothing turns upon this dispute in the present proceedings.

11 I turn to the matter which is strictly before the Court. The principal reason that I placed a time limit on Mr Harris is that, despite my repeated urgings, he rarely focused upon the issue that was to be addressed today.

12 I should recapitulate what occurred at the previous hearing. The first notice of motion brought by the plaintiff sought leave to join additional defendants. The notice of motion on behalf of the defendants, in the sense that I have used that word, sought, in effect, summary judgment. I am dealing with the matter expressly as a challenge to the sufficiency of pleadings but I recognise that an order striking out pleadings without leave to re-plead would have the same practical effect as summary judgment.

13 For that reason, I have today and on the previous occasion approached the matter with the restraints which are appropriate to applications for summary judgment.

14 I confirm that pursuant to the previous judgment, I came to the conclusion that what appeared to be actions for damages based upon negligence and breach of statutory duty were entirely untenable. I reserved until today so that the possibility, and I emphasise "possibility", that in some way Mr Harris might have a viable cause of action in defamation against either the defendants whom he had sued or, perhaps, one or other of them could be examined.

15 The reason why I did not deal with the matter on the last occasion was that within what purported to be his pleading were a series of unreferenced imputations which, if they had been conveyed by published material, were capable of being defamatory.

16 Accordingly, I gave directions that Mr Harris should, in draft form, present any pleading incorporating the claims which he made and serve this upon the Australian Government Solicitor. Such a document was prepared. It was, apparently, delivered quite recently but no point as to time has been taken.

17 The document entitled "Form 5, Proposed Amended Statement of Claim" has been produced in Court today by Mr Harris. I have signed it for identification and dated it today and it will remain with the papers. I have examined the document for the purpose which I indicated on the last occasion, that is to say, to see whether or not, as a matter of pleading, there is some indication that Mr Harris might have a viable cause of action against one or more of the defendants whom he has sued or whom he is seeking to sue. The document contains a considerable amount of irrelevancy.

18 Mr Harris has today spent a considerable amount of time addressing matters which are not relevant to the issue, as I have defined it. Nevertheless, I would take the view that I would not make orders effectively terminating these proceedings if I could perceive some realistic indication that an action of the nature he claims might exist.

19 The document itself, in substance, repeats the imputations which had appeared in the previous document. However, an attempt has also been made to identify what is described as the defamatory matter and its publication. This is to be found in the paragraph within the document numbered 40.

20 I might mention in passing that the reason that I raised the question of challenge to the s 218 notices is that each of the asserted publications makes reference to that section.

21 In summary, Mr Harris asserts that there was defamatory matter published of him on 21 February 1994 by the delivery of a notice under the section which I have mentioned to the Customs Staff Credit Union in Canberra and, on the same day, a similar notice to the Commonwealth Public Service Credit Union in Canberra.

22 At about the same time there was the delivery of a notice by facsimile transmission to a company with which the applicant, Mr Harris, apparently had a contract for work. There is also reference to the delivery to a mailbox of what is described as five or more s 218 notices together with some handwritten income tax assessments.

23 It is quite impossible to discern from the descriptions of the matter published how it could be that the claimed imputations could arise. Mr Harris has spent a considerable amount of time today making reference to what he asserts people would conclude as a result of learning about the issue of the notices.

24 I am not insensitive to the law relating to innuendo in relation to publication of alleged defamatory matter, however, nothing that Mr Harris has said gives any indication that that branch of the law or, indeed, the law of defamation generally, is likely to give him a cause of action of the nature which he now seeks.

25 Mr Harris has pointed out that in my earlier judgment I remarked that his previous pleading, insofar as it set out the imputations, had the problem that there were absences of identification of the matter complained of and particulars of publication: that is, by whom and to whom and when, as well as the basis upon which it is claimed that the defendants, or any of them, were responsible for the publication.

26 As things stand at the moment, the plaintiff Mr Harris is seeking to bring an action for defamation based upon the publication of statutorily authorised notices. As I mentioned in my earlier judgment, these notices have something of a quality analogous to a garnishee. In effect, they are notices addressed to a debtor asserting that the creditor is himself indebted to the issuer of the notice - in this case the Australian Taxation Office.

27 In precise terms, in this case they are notices to people or organisations who owe money to Mr Harris, in the sense of bank or credit union/customer relationship claiming that rather than discharge their debt to Mr Harris they should direct the money to the Australian Taxation Office, to which the notice specifies he is indebted. It is quite inconceivable that the regular discharge of that statutory function could give rise to a cause of action in defamation. Although it is not necessary for me to go through the imputations in detail, it is quite inconceivable that such a notice could convey the imputations relied upon by the plaintiff. It suffices for demonstration to refer to argument addressed by Mr Harris in response to my enquiry as to how the content of such a notice could impute that he was “most likely a leading criminal or involved in organised crime”. His response was to refer to a “notorious” fact that a well-known American criminal, Mr Al Capone, was finally imprisoned for taxation offences. Mr Al Capone has not been altogether without mention in some of the documentation tendered by the plaintiff.

28 Mr Harris has frequently and emphatically complained that he feels that he is not being given an opportunity to vent his grievances. He has, in various expressions, suggested that he will be the subject of a miscarriage of justice if he is not allowed to present his claims in the way that he wishes to present them. One of the many difficulties about that is that the formulation of his claims is in such terms as it would be quite unreasonable to require any defendant, or intended defendant, to have to respond to them.

29 On the previous occasion, I indicated that leave for the plaintiff to file an amended statement of claim against the defendant, or the proposed substituted defendants, asserting causes of action in negligence or breach of statutory duty was refused.

30 Further to that, I now make the following orders:
1. Leave for the plaintiff to file an amended statement of claim against the defendant, or the proposed substituted defendants, asserting a cause of action in defamation is refused.
2. I strike out the current pleading.
3. I expressly refuse leave to file the pleading in the form of the document signed by me and dated today.
4. Insofar as the notice of motion by the plaintiff seeking to vary the identity of the defendant is on the Court record, it is now without relevant point and that motion is dismissed.
5. I do not propose to make any order in relation to the costs before Master Malpass. If anything is required in relation to that, the parties should approach Master Malpass.
6. I order the plaintiff to pay the defendant's costs of the hearing before me on 20 June 2001 and the hearing before me today.
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LAST UPDATED: 17/08/2001