The WA Supreme Court has dismissed a taxpayer’s application to discharge orders made in November 2009 granting a Deputy Commissioner of Taxation leave to issue a writ, of which notice was to be given out of the jurisdiction and to serve notice of the writ out of the jurisdiction (ie out of Australia).
The writ claimed payment of outstanding income tax, general interest charge and administrative penalties totalling over $11m. Service was effected on the taxpayer in accordance with the laws of Thailand on 10 October 2010. However, the Court said the service was not personal service, but was effected by leaving the documents at the taxpayer’s address in Thailand. The taxpayer said he did not in fact receive the documents and was unaware of the proceedings until 8 June 2012. The judgment obtained by the Deputy Commissioner against the taxpayer was in default of appearance. The basis of the taxpayer’s application was an objection to jurisdiction and he contended that the conditions in O 10 r 1(1)(i) of the Rules of the Supreme Court 1971 (WA), the head relied on by the Deputy Commissioner in obtaining leave, were not met.
The Supreme Court said it was satisfied that the Deputy Commissioner’s interpretation of the rule was to be preferred and dismissed the taxpayer’s application.
(DCT v Dunn [2012] WASC 500, WA Supreme Court, Sanderson M, 20 December 2012.)
[FJM Note: See Federal Court case of FCT v Oswal (above), where the Commissioner got leave for substituted service.]
[LTN 11, 17/1/13]