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HEATH & ANOR v DFC of T

Judges:
Olney J

Court:
Federal Court

Judgment date: Judgment handed down 30 June 1995

Olney J

There are three motions at present before the Court, two in proceeding VG 163/95 and one in proceeding VG 555/95. The two proceedings are closely related. The parties in each proceeding are the same.

Proceeding VG 163/95

The first applicant was the plaintiff in County Court proceeding 8801447 in which the second applicant acted as his solicitor. In that proceeding the first applicant claimed damages from a former employer in respect of personal injury sustained at work on 28 January 1982. The trial of the action continued for several days in February 1995 until on 17 February 1995 it was settled on the following basis:

  • (i) The defendant agreed to pay the first applicant $150,000 by way of general damages excluding pecuniary loss and other benefits hereafter referred to, in full settlement.
  • (ii) The defendant agreed to pay the first applicant's costs to be taxed in default of agreement.
  • (iii) The first applicant would be entitled to retain the benefit of all payments previously made by the defendant or its insurers to him or on his behalf pursuant to the provisions of the Workers Compensation Act.
  • (iv) The defendant agreed to indemnify the first applicant in respect of the sum of $9,384.43 being sought by the Social Security Department under a recovery notice issued pursuant to s 1174 of the Social Security Act 1991.
  • (v) The first applicant's solicitor (i.e. the second applicant) would undertake to disburse out of the sum of $150,000 all payments of which it had knowledge for which the defendant or its insurer may be liable pursuant to the Hospital & Charities (Liability of Patients) Act, the Workers Compensation Act 1958, the Accident Compensation Act 1985, the Social Services (Consolidation) Act (Commonwealth) and the Social Security Act 1991.

The settlement was evidenced by a document executed on 17 February 1995 by counsel on behalf of the parties to the action (the terms of settlement).

The defendant in the County Court proceeding was insured by C.E. Heath Insurance & Underwriting (Australia) Pty Ltd (the insurer) and it is common cause that the funds necessary to meet the payments agreed in the terms of settlement would be paid by the insurer.

On 7 March 1995 the respondent raised default assessments in respect of income tax due by the first applicant for each of the years ending 30 June 1988, 1989, 1990, 1991, 1992, 1993 and 1994. The total amount assessed by way of tax, medicare levy and additional tax was $242,964.01 and in addition provisional tax of $15,409 was assessed. The notices of assessment were served by post and were received by the first applicant on 9 March 1995. Payment was required to be made by 10 April 1995.

On 8 March 1995 the respondent signed and served on the insurer a notice pursuant to s 218 of the Income Tax Assessment Act 1935 (the s 218 notice) requiring the insurer to pay to the respondent so much of the money due to the first applicant as is sufficient to pay the amount of $242,964. A copy of the notice was sent to the respondent by post under cover of a letter dated 8 March 1995.

By application filed on 27 March 1995 the applicants sought an order of review pursuant to the Administrative Decisions (Judicial Review) Act (AD (JR) Act) and relief pursuant to s 39B of the Judiciary Act 1903 in respect of-

  • 1. The decision of the respondent made on or before 8 March 1995 to give notice under s 218 of the Income Tax Assessment Act to the insurer.
  • 2. The decision of the respondent to give such notice before the tax the subject of the notice had become payable.
  • 3. The conduct of the respondent to properly and fairly take into consideration in respect of the decision to give the notice that the moneys in respect of which the notice was to operate were an award of damages to the first applicant in respect of personal injuries.

(In the context of the application it would appear that the conduct complained of in 3 above is the alleged failure to take into consideration the matter referred to).

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By notice of motion filed on 28 March 1995 the applicants sought an interlocutory injunction restraining the respondent until determination of the application from exercising or otherwise enforcing the respondent's rights, if any, pursuant to the s 218 notice. The motion was heard ex parte by Ryan J late on 28 March 1995 when the following orders were made upon the applicants giving the usual undertaking as to damages:

``1. The respondent forthwith pay into Court without any deduction any moneys which may be paid to the respondent by or on behalf of C.E. Heath Underwriting and Insurance (Australia) Pty Limited (`the Company') pursuant to a Notice dated 8 March 1995 under section 218 of the Income Tax Assessment Act 1936 and served on the company in respect of moneys due or to become due from the Company to the firstnamed applicant.

2. The moneys referred to in paragraph 1 of this Order be retained by the Registrar until the hearing and determination of the Application herein or further order.

3. Liberty be reserved to any party to apply for a variation or discharge of this order on not less than 72 hours notice in writing to the other parties.

4. The costs of the applicants of this day be reserved.''

The Court has been informed from the Bar table that subsequent to the order of Ryan J the insurer paid two cheques totalling $150,000 to the respondent and that the respondent thereupon paid same to the Registrar in conformity with the order. It is common cause that the sum of $150,000 is presently held in Court pending further order.

The first directions hearing was held on 11 April 1995. On that occasion orders were made by consent relating to the further conduct of the proceeding. The orders consented to included orders that the motion of which notice was filed on 28 March 1995 be dismissed and that the question of costs in relation to that motion be adjourned to 19 May 1995. The directions hearing was also adjourned to 19 May 1995.

The applicants filed an amended application on 15 May 1995. In the amended application the third matter of which review was sought in the original application was omitted but otherwise the amended application was in substance in much the same form as before.

On 19 May 1995 the parties consented to orders, inter alia, that the respondent by 5.00pm that day file and serve a notice of motion returnable on 25 May 1995. The directions hearing and the other matter previously adjourned to 19 May 1995 were further adjourned to 25 May 1995. The respondent duly filed a notice of motion seeking:

``1. An order dismissing the applicant's application for an order of review.

2. Further, or in the alternative, an order that this proceeding be permanently stayed.

3. Upon the respondent undertaking to forthwith deliver up to C.E. Heath Underwriting and Insurance (Australia) Pty Limited any moneys or negotiable instruments received by him from the Registrar pursuant to this order, orders pursuant to paragraph 3 of the ex parte orders of Ryan J (in Chambers) made 28 March, 1995:

  • (a) discharging the said ex parte orders;
  • (b) directing the Registrar to forthwith deliver up to the respondent any moneys or negotiable instruments he holds pursuant to the said ex parte orders.

4. An order that there be no further order as to costs in the proceeding.

5. Such further or other orders as the Court deems meet.

6. If necessary, an order abridging the time for service under Order 19, rule 3, Federal Court Rules.''

The notice of motion was supported by an affidavit of an officer of the Australia Tax Office in which, inter alia, the following matters are deposed to:

  • 1. Notices of assessments of income tax were issued to the first applicant on 7 March 1995 in respect of the years of income ended 30 June 1988 to 1994 (inclusive). The total amount of tax assessed thereunder was $242,964.
  • 2. On 8 March 1995 a notice under s 218 was personally served on the insurer.
  • 3. The notices of assessment were issued out of the Canberra Office of the Australian Tax Office and were served by post.

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  • 4. In accordance with Income Tax Regulation 170(1) the notices were deemed to have been served on 9 March 1995.
  • 5. At the time the s 218 notice was served on the insurer there was no debt due by the first applicant to the respondent.
  • 6. The respondent's legal advice is to the effect that the s 218 notice served on the insurer was invalid and void ab initio.
  • 7. On 19 May 1995 the respondent wrote to the insurer asking that the notice of 8 March 1995 be disregarded. At the same time a further s 218 notice dated 19 May 1995 was served on the insurer.

On 23 May 1995 the applicants filed a notice of motion seeking leave to amend the application by adding an allegation that the s 218 notice dated 8 March 1995 was invalid and seeking a declaration that it was invalid and void ab initio.

The respondent's motion filed on 19 May 1995, the applicants' motion filed on 23 May 1995 and the other matters previously adjourned to 25 May 1995 were heard together on 13 June 1995.

Proceeding VG 555/95

The applicants filed a fresh application on 23 May 1995 (the second application) by which they seek an order to review the respondent's decision made on 19 May 1995 to give notice to the insurer pursuant to s 218 of the Income Tax Assessment Act (the second s 218 notice). The relief sought in the second application is substantially the same as that sought in proceeding VG 163/1995 but relates to the second s 218 notice.

In the second application the applicants filed a notice of motion on 23 May 1995 seeking orders:

``1. That the order of Ryan J made 28 March 1985 [sic] in proceeding VG No. 163 of 1995 be continued in respect of a Notice dated 19th May 1995 under section 218 of the Income Tax Assessment Act 1986 (`the Notice') served by the respondent on C.E. Heath Underwriting & Insurance (Australia) Pty Ltd (`the company').

2. Alternatively, that the Respondent forthwith pay into Court without any deduction, any monies which may be paid to the respondent by or on behalf of the company pursuant to the Notice.

3. Such further or other orders as the Court considers necessary.

4. If necessary, an order abridging the time for service under Order 19, rule 3, Federal Court Rules.''

The motion was heard on 13 June 1995 at the same time as the various matters in proceeding VG 163/1995 previously referred to.

The applicants' motion to amend (VG 163/95)

The amendment sought by the applicants in the first application is a response to the respondent's admission in its affidavit material that the first s 218 notice was invalid and void ab initio. The application as originally framed sought review of the decision to give the notice before the tax had become payable. It did not allege that the notice had been served before the tax was due.

In the light of the admissions made on the respondent's behalf and consistent with the requirement of O 13 r 2(2) of the Federal Court Rules that all necessary amendments be made for the purpose of determining the real questions raised or otherwise depending on the proceedings, it is entirely appropriate that the applicants have leave to amend the application in the manner sought.

The respondent's motion for dismissal (VG 163/95)

Given the circumstances of the case, the suggestion that the application be dismissed on the motion of the respondent is, to say the least, breathtaking. In the facts of the case, the respondent having admitted that the s 218 notice was invalid and void ab initio, it is appropriate that the Court's order should reflect that fact rather than to merely dismiss the application as if it raised a matter of no substance, and accordingly I propose to dismiss the respondent's motion and to make a declaration and other consequential orders on the application (as amended) of the applicants.

The respondent's real concern is not so much with the outcome of the application for an order of review but with the question of what should happen to the money presently held in Court pursuant to the order of Ryan J. The net effect of the orders sought by the respondent is to gain possession of that money pursuant to the second s 218 notice. This would be achieved if, without further intervention by the Court, the money is repaid to the insurer, it having now been served

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with a notice which is not affected by the fundamental flaw suffered by the first notice.

Ryan J's order did not impose any obligation on the insurer, but rather, it assumed the efficacy of the s 218 notice and required the respondent to remit to the Court any money received from the insurer pursuant to the s 218 notice. But for the order, there being no reason for the insurer to challenge the s 218 notice, the money actually paid to the respondent would have been retained by the respondent. But the respondent would not have been entitled to that money for the reason that the s 218 notice was invalid. Nor would the insurer have had the protection of the indemnity provided by s 218(4).

The appropriate course for the Court to now follow is to try to unravel the mischief caused by the service on the insurer of a notice which was incapable of having the effect which it purported to have and as far as possible, to place the parties in the same position as they would have been but for the service of the invalid notice and the subsequent order made by Ryan J. This can best be achieved by directing that the money in Court be returned to the respondent and the respondent ordered to repay same to the insurer.

It would not be appropriate, as was sought by counsel for the applicants at the hearing of the motions, to order payment of the money out of Court to the first applicant and this for the reason that the insurer is entitled to obtain a discharge of the liability of its client (the defendant in the County Court proceeding) under the terms of settlement and that can only be achieved by payment to the first applicant in accordance with those terms or by payment pursuant to a valid s 218 notice. The insurer could not comfortably rely upon a payment made by it to the respondent pursuant to an invalid s 218 notice as discharging the contractual liability incurred under the terms of settlement.

Before formulating the details of the order to be made, including any order in relation to costs, it is necessary to have regard to the second application and the motion filed therein.

The applicants' motion in VG 555/95

The applicants seek an order in the same terms as the ex parte order made in proceeding VG 163/95 by Ryan J on 28 March 1995.

To justify such an order the applicants must demonstrate that there is a serious question to be tried in respect of the relief sought in the second application and that the balance of convenience lies in favour of granting interlocutory relief.

Section 218(1) of the Income Tax Assessment Act 1936 provides:

``218(1) The Commissioner may at any time, or from time to time, by notice in writing (a copy of which shall be forwarded to the taxpayer at his last place of address known to the Commissioner), require:

  • (a) any person by whom any money is due or accruing or may become due to a taxpayer;
  • (b) any person who holds or may subsequently hold money for or on account of a taxpayer;
  • (c) any person who holds or may subsequently hold money on account of some other person for payment to a taxpayer; or
  • (d) any person having authority from some other person to pay money to a taxpayer;

to pay to the Commissioner, either forthwith upon the money becoming due or being held, or at or within a time specified in the notice (not being a time before the money becomes due or is held):

  • (e) so much of the money as is sufficient to pay the amount due by the taxpayer in respect of tax or, if the amount of the money is equal to or less than the amount due by the taxpayer in respect of tax, the amount of the money; or
  • (f) such amount as is specified in the notice out of each payment that the person so notified becomes liable from time to time to make to the taxpayer until the amount due by the taxpayer in respect of tax is satisfied;

and may at any time, or from time to time, amend or revoke any such notice, or extend the time for making any payment in pursuance of the notice.''

Subject to what is said hereunder in relation to the provisions of the terms of settlement relating to costs, there would appear on the face of it no reason why a valid notice under s 218(1) served on the insurer should not be

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given effect to. On the basis that a total sum of $242,964 has been assessed by the respondent and is due and payable by the first applicant, and given that the amount of the general damages agreed to be paid to the first applicant is $150,000, the notice requires the insurer to pay the whole of that sum to the respondent. The first applicant has not sought to attack the validity of the various assessments of income tax. He has however lodged objections against same and has indicated that upon the resolution of his objections, he will make application for release from tax liability on the ground of hardship pursuant to s 265 of the Income Tax Assessment Act. It follows from what has been said that the first applicant does not dispute that as a matter of law, the sum of $242,964 is presently due and payable by him to the respondent.

The applicants do however attack the validity of the second s 218 notice on a number of grounds, notably:

1. The decision to give the notice was an improper exercise of power in that-

  • (a) the respondent and his officers failed to take into account relevant considerations;
  • (b) the decision was an exercise of power that was so unreasonable that no reasonable person could have exercised it;
  • (c) the decision was an exercise of power which occurred without the respondent taking into account facts that a reasonable decision-maker must have found and taken into account;
  • (d) the decision was an exercise of discretionary power without regard to the merits of the particular case.

2. There was no evidence or other material to justify the decision.

3. The second applicant has a lien over the damages to the extent of its legal costs which has priority over the respondent's alleged rights.

4. The decision is oppressive.

The only statutory criteria which condition the exercise of the power granted by s 218(1) are-

  • (a) the liability of a taxpayer in respect of tax, and
  • (b) the existence of a person who falls within one or more of the categories in paragraphs (a) to (d) inclusive of the subsection.

Apart from the general policy that persons liable to pay tax under the Act should pay such tax, there is nothing in the statute to suggest that any particular policy considerations lie behind this legislative provision nor is any reference made to matters which should affect the exercise of the discretion granted by the section.

By s 5(1) of the AD (JR) Act a person who is aggrieved by a decision to which the Act applies may apply to the Court for an order of review in respect of the decision on any one or more of certain grounds specified in sub-section [ sic]. Several of the grounds relied upon by the applicants relate directly to grounds referred to in s 5(1). For example by virtue of s 5(1)(e) an order of review may be sought on the ground that the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made and by s 5(2) it is provided that the reference in s 5(1)(e) to an improper exercise of a power shall be construed as including a reference, inter alia, to failing to take a relevant consideration into account in the exercise of the power (s 5(2)(b)), an exercise of power that was so unreasonable that no reasonable person could have so exercised the power (s 5(2)(g)), and an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case (s 5(2)(f)).

The only other ground of review which appears to be relied upon is the ground that there was no evidence or other material to justify the making of the decision (s 5(1)(h)). However, s 5(3) provides that that ground shall not be taken to be made out unless either the decision-maker was required by law to reach the decision only if a particular matter was established and there was no evidence or other material from which he could reasonably be satisfied that the matter was established or the decision-maker based the decision on the existence of a particular fact which did not exist. In the facts of this case it does not appear that this ground is available to the applicants.

Oppressiveness is not one of the specified grounds upon which review may be sought under the AD (JR) Act.

In the absence of an allegation that the decision was an exercise of a discretion according to a rule or policy, the ground

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referred to in 1(d) above is not one which can found an order of review.

The ground referred to in 1(c) above is not one upon which an order of review can be made unless it is to be regarded as coming under either or both of s 5(2)(b) (failing to take a relevant consideration into account) or s 5(2)(g) (unreasonableness).

An analysis of the grounds pleaded by the applicants indicates that in reality the applicant relies upon the grounds specified in s 5(2)(b) and s 5(2)(g).

By the time the respondent exercised the power to give notice under s 218 on 19 May 1995 he was aware of many facts of which he would not have been aware on 8 March 1995, including the following-

  • (i) Between 1984 and 1990 the first applicant had worked as a self employed plumber.
  • (ii) In December 1990 the first applicant had suffered a brain aneurism which has prevented him from working since then.
  • (iii) Without his knowledge, the first applicant's wife had income tax returns prepared by an accountant in December 1990 for the years 1986 to 1990 but the first applicant had refused to sign them as he considered them to be incorrect.
  • (iv) The first applicant and his wife are each currently in receipt of social security benefits of $6,500 per annum and have no other income. Their current liabilities exceed the value of their assets by about $30,000.
  • (v) The first applicant and his wife plan to use the proceeds of the damages claim to purchase the house in which they presently live, which the owner allows them to use rent free in anticipation that they will purchase the property.
  • (vi) The first applicant has lodged objections against each of the assessments for the years 1988 to 1994 (inclusive) and has requested an extension of time within which to lodge returns for those years.
  • (vii) The first applicant has indicated his intention to make application for release from tax liability on the ground of hardship pursuant to s 265 of the Income Tax Assessment Act once his objections have been dealt with.
  • (viii) If in fact the first applicant has not worked since December 1990 (which does not appear to be seriously questioned) the amount of tax assessed by the respondent is excessive and there is every prospect that his objections will be upheld and his liability to tax substantially reduced.

Counsel for the applicant relies heavily on the decision of Burchett J in
Edelsten v Wilcox & Anor 88 ATC 4484. The facts of that case were of course quite different from this case, but nevertheless his Honour's reasons provide some basis for the general proposition that the respondent is required to exercise the discretion conferred by s 218 fairly having regard not only to the object of protecting the revenue but also to the consequences which his action will have for the taxpayer. I refer in particular to the following passages from Burchett J's reasons at pp 4494-4495:

``The statutory context of Pt VI includes such discretions as that contained in sec. 206, clearly requiring the Commissioner of Taxation to have regard to the particular position of an individual taxpayer. Section 218 must, I think, be seen as part of the whole scheme of the Act for the collection and recovery of tax, which of course includes rights of objection and appeal. It is a strong power designed to protect the revenue, but it was not intended to subvert the principle which has been established at least since Magna Carta, that a citizen's property should not be subject to arbitrary seizure.

...

The problem is how to define the parameters within which Parliament intended the discretion to be exercised. For this purpose, it is proper to look at the nature of the power conferred, as well as the statutory context. I refer to the well known statement of Mason J. in
Minister for Aboriginal Affairs v. Peko- Wallsend Ltd. (1986) 162 C.L.R. 24 at p. 40:

`In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter,

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scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard... By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act.'

The subject (as well as the purpose) of sec. 218 is the collection of tax by the attachment of debts, a means also used to enforce judgments of courts, and in that case, as I have pointed out, subject to the exercise of a discretion. Tax may be collected under the Act by various other means, including judgments of courts, which too may lead, under the enforcement procedures just mentioned, to the attachment of debts. It is clear from the Act, the authorities, and the policy guidelines which the Commissioner himself has issued, that the collection of tax in cases where appeal procedures have been properly invoked and genuine questions are outstanding is, in general, the subject of discretions, which must take account of that situation, and of the effect upon the individual taxpayer of the contemplated recovery. The legislature cannot have intended that sec. 218 should confer a more despotic power, not subject to the same discretionary considerations.

In this context, the power of attachment of debts was given in order that tax might be collected, subject to the discretions to which I have referred, from the source subjected to the power. Senior counsel for the Commissioner suggested the Commissioner was entitled to act to enforce payment, as any creditor may, without regard to the consequences for his debtor or other creditors. But what is in question is not an action of a kind which can be taken, under the general provisions of the law, by creditors. An extraordinary power has been conferred on the Commissioner, and it must carry with it a special obligation. He is not given this power so that he may bring to the collection of the Commonwealth's revenues the rapacity of a Verres who takes what he can, but because wide discretions, fairly exercised, have been found necessary. There must be advertence to the quality of fairness, which is applicable to the analogous procedure for the attachment of debts by garnishee order.''

The respondent opposes the granting of interlocutory relief. In particular it is argued that the statutory discretion to give notice under s 218 has been properly exercised and further, that the applicants can suffer no detriment if the notice is given effect to.

In my opinion there is a serious question to be tried in relation to the major grounds for review relied upon by the first applicant. The evidence before the Court suggests that as at 19 May 1995 the respondent would have been aware that a major portion of the assessments issued on 7 March 1995 are unlikely to withstand proper scrutiny. On that basis there is a serious question to be tried as to whether the decision to reissue the s 218 notice without regard to the likely result of the taxpayer's objections was unreasonable and was made without taking a relevant consideration into account. Whether this question will ever come to be tried seems unlikely having regard to the steps taken and contemplated by way of objection and otherwise.

I turn now to address in particular the claim by the second applicant that it has a lien in respect of the costs of the County Court proceeding which has priority over any rights the respondent may have under the second s 218 notice.

The terms of settlement provide for the payment of two major items; the first relates to the sum of $150,000 general damages and the second to the costs of the action. The terms of settlement contain the following provisions in relation to the costs:

``2. The plaintiff and the defendant have consented to the following orders being made by the Court in the proceeding-

  • (i) That the defendant pay the plaintiff's costs to be taxed on the appropriate scale with certificates for Senior Counsel, brief fee $3,900.00, three refreshers at $2,600.00 and twelve hours conferences at $390.00, junior Counsel brief fee is $1,800.00, three refreshers at $1,200.00 and six hours conferences at $180.00.
  • (ii)...

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3. The defendant agrees to pay the plaintiff's costs of this proceeding as set out in paragraph 2 hereof, such costs to be taxed in default of agreement and to be paid within twenty eight days of taxation or agreement as to the quantum thereof.''

The second applicant has assessed the first applicant's costs on a party and party basis at $53,507.60 and has requested the insurer to advise concerning payment of same. So far as the Court is aware from the evidence adduced, the costs have neither been agreed nor taxed and accordingly it would appear that at this stage the defendant (or its insurer) is under no liability to make any payment for costs under the terms of settlement. Obviously, until such liability arises, the second s 218 notice can have no effect in relation to the costs.

The second applicant claims however that it has a lien in respect of the costs due to it by the first applicant in relation to the County Court proceeding and that such lien takes precedence over any rights that the respondent may have in relation to the proceeds of the litigation by reason of the second s 218 notice. Although the older English authorities cited by counsel for the respondent suggest that a solicitor has no lien for his costs in circumstances similar to those which prevail in this case, counsel for the applicants has referred the Court to the decision at first instance in
DFC of T v Government Insurance Office of NSW & Anor 92 ATC 4295 in which Wilcox J expressed the view, in a similar factual situation, that the solicitor had an equitable lien over the judgment moneys to the extent of the amount reasonably due to him for his work in the prosecution of the action in which judgment was obtained notwithstanding that the money had never come into the solicitor's possession. On appeal in the same proceeding (93 ATC 4901) Hill J (with whom Beazley J agreed) expressed the view (at pp 4912-4913) that the solicitor's lien had priority over the charge or other security interest of the Deputy Commissioner under a s 218 notice.

The matter may not be entirely free from doubt, but there is clearly a serious question to be tried in relation to the effect of the s 218 notice upon the second defendant's entitlement to costs.

In the judgment of Wilcox J to which reference has just been made, his Honour referred to an equitable lien over the judgment moneys to the extent of the amount reasonably due to the solicitor for his work in the prosecution of the action in which the judgment was obtained. This appears to be a clear reference to the solicitor's reasonable entitlement to his solicitor and client costs as distinct from the party and party costs of the action. In the present case the costs to be paid under the terms of settlement are the first applicant's party and party costs. It is reasonable to assume that the second applicant's reasonable solicitor and client costs exceed any amount recovered on a party and party basis and thus, on the same assumption, it might be expected that the second respondent's lien would extend in part to the money agreed to be paid to the first applicant by way of general damages. However, in the absence of any evidence as to the amount, if any, of such excess it is inappropriate to take same into account in formulating the orders proposed in this proceeding.

The balance of convenience

In my opinion the balance of convenience lies in favour of isolating the sum payable under the terms of settlement for costs from the effect of the s 218 notice pending resolution of this proceeding and that the best way of doing so will be to order that upon the sum in question being paid to the respondent by the insurer pursuant to the s 218 notice, the same be paid by the respondent to the second applicant upon the second applicant's undertaking that the same be held in trust until further order or until the respondent advises that no further claim is made thereto pursuant to the second s 218 notice.

Different considerations apply in relation to the money payable under the terms of settlement in respect of general damages. If in fact upon the reassessment of the first applicant's tax liability it turns out that his indebtedness is substantially reduced (as seems likely on the material presently available) or completely eliminated as a result of an application under s 265, there is no reason to suggest the respondent will not make an appropriate refund to the first applicant of any sum paid pursuant to the s 218 notice in excess of the first respondent's actual tax liability. Similarly, if the s 218 notice is later held to be invalid, there is no reason to suspect that the respondent will not return the money received pursuant to the notice.

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Unlike the case of Edelsten, compliance with the s 218 notice will not deprive the first applicant of all means of support pending resolution of the matters in question. Whilst it is understandable that he is anxious to receive whatever money he is entitled to following the settlement of his damages claim, he and his wife retain the limited financial security presently afforded by their social security entitlements. On the other hand, if the general damages component of his entitlement under the terms of settlement is paid to him there is every likelihood that the funds will be expended towards purchase of the house referred to earlier and thus render more difficult the enforcement of payment of any sum ultimately found to be payable for income tax. Apart from what has been said above concerning the party and party costs, the balance of convenience lies in favour of the Court not interfering with the operation of the s 218 notice.

The question of costs

In proceeding VG 163/95, the applicants have succeeded in having the first s 218 notice declared void and thus have achieved, albeit on a ground not originally relied upon, the end sought by their application. It has been unnecessary to deal with the major ground originally relied upon.

Whilst it is the fact that but for the respondent's candid disclosure of the true position in relation to the service of the income tax assessments, it is unlikely that the application would have been resolved in such a manner, the respondent did no more or less than was his public duty in making the Court and the opposite party aware of facts which were peculiarly within his own knowledge and in my opinion ought not be permitted to rely upon that conduct as a reason for escaping the normal consequences which flow when an administrative decision has been set aside upon judicial review.

The respondent will be ordered to pay the applicants' costs in proceeding VG 163/95 including any reserved costs.

Proceeding VG 555/95 has proceeded only to the stage of the granting of interlocutory relief. The respondent has in part successfully resisted the granting of the relief sought, but has not been entirely successful. It is appropriate that the costs of the applicants' motion in proceeding VG 555/95 be reserved.

Conclusion

For the reasons set out above the following orders will be made:

THE COURT ORDERS THAT:

(i) upon payment to him by C.E. Heath Underwriting & Insurance (Australia) Pty Limited pursuant to the notice referred to in the application (the said notice) of any money which represents the taxed or agreed costs in County Court proceeding 8801447 payable under the terms of settlement in that proceeding, the respondent shall pay the sum or sums so received to the second applicant upon the second applicant's undertaking to retain the same in a trust account until further order or until the respondent shall advise the applicants or either of them that no further claim is made in respect thereof under the said notice.

(ii) the costs of the applicants' motion of which notice was filed on 23 May 1995 be reserved.

(iii) the directions hearing be adjourned to Friday 28 July 1995 at 10.15 am.

THE COURT ORDERS THAT:

1. Upon the motion of the applicants, notice of which was filed on 23 May 1995, the Court orders and declares that:

  • (a) the applicants have leave to further amend the application in the form annexed to the motion.
  • (b) there be judgment for the applicants on the application as amended.
  • (c) the notice in writing dated 8 March 1994 under s 218 of the Income Tax Assessment Act 1936 (the said notice) served on C.E. Heath Underwriting & Insurance (Australia) Pty Limited (the insurer) on 8 March 1995 be set aside.
  • (d) the said notice is invalid and void ab initio.
  • (e) the order made herein ex parte by Ryan J on 28 March 1995 (the ex parte order) be and is hereby discharged.
  • (f) the Registrar forthwith pay to the respondent the money held in Court pursuant to the ex parte order.
  • (g) upon payment to the respondent pursuant to order 1(f), the said sum be forthwith repaid to the insurer and at the same time a copy of this order be served on the insurer.

    ATC 4440

  • (h) the respondent pay the applicants' costs of the proceeding including any reserved costs.

2. The respondent's motion of which notice was filed on 19 May 1995 be dismissed.


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