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Casley -V- Deputy Commissioner Of Taxation - (20 Oct 2017)

Summary judgment should be awarded only in clearest of cases, where one party can demonstrate that, question will certainly be resolved in their favour

Direct Taxation

The primary judge granted summary judgment to the Deputy Commissioner of Taxation in two actions brought against the Appellants. The actions had been brought by the Commissioner to recover taxation debts said to be owing to the Commonwealth pursuant to certificates issued under various provisions of Commonwealth taxation legislation. Judgment was entered in the sum of $2,770,177.63 against Leonard Casley and in the sum of $242,669.53 against Arthur Casley. Costs and interest were also awarded in favour of the Deputy Commissioner.

The Appellants now seek to appeal against the judgments entered by the primary judge. The Appellants contend that, the primary judge erred in failing to recognise that, the Appellants' farming property in Northampton is an independent sovereign state which seceded from Australia in 1970, with the result that the appellants are not residents of Australia for taxation purposes. The Appellants contend that, the Deputy Commissioner is estopped from denying that the Northampton farming property, which the Appellants call the 'Principality of Hutt River', has seceded, and from contending that they are residents of Australia for taxation purposes. The Appellants contend that, the primary judge erred in proceeding on the basis of the Commissioner's certificates (which the appellants say are factually inaccurate in a number of respects) rather than primary evidence of the facts establishing their taxation liability.

The evidence before the primary judge did not arguably establish the factual elements of an estoppel. The appellants seek to rely on previous assessments for earlier taxation periods which classify them as non-residents of Australia for income tax purposes. The mere issue of such an assessment could not arguably give rise to an estoppel which precludes the Deputy Commissioner from either amending the assessment in accordance with the provisions of the legislation or assessing the appellants' liability to taxation in subsequent periods on a different basis. In any event, there is no arguable legal basis on which doctrines of estoppel could alter the constitutional status of the Northampton land part of the Commonwealth of Australia. It may also be noted that, the Appellants' submissions regarding estoppel fail to confront the difficulties in establishing such an estoppel in the face of the Deputy Commissioner's statutory obligation to assess the Appellant's taxation liability in accordance with the applicable Commonwealth legislation.

It is established that, summary judgment should be awarded only in the clearest of cases, where one party can demonstrate that the question will certainly be resolved in their favour. In the present case the primary judge correctly found that, the Appellants had not advanced any arguable defence, and that it was appropriate to enter summary judgment in favour of the Deputy Commissioner.

None of the Appellants' grounds of appeal have any reasonable prospect of success and both appeals should be dismissed on that basis. The Appellants have also filed applications seeking leave to adduce additional evidence in the appeals. The principles governing the exercise of this Court's discretion to receive additional evidence in a civil appeal are well-established. Leave to adduce the additional evidence should be refused on the basis that, it is not in the interests of justice to receive the evidence. The evidence is not fresh and there is no significant possibility that the evidence would lead to a different result if admitted. Appeal dismissed.


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