Henderson v Commissioner of Taxation

[2006] FCA 223
BC200601377

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(Judgment by: Ryan J)

Henderson
v Commissioner of Taxation, VID1637 of 2005

Court:

Judge:
Ryan J

Judgment date: 10 March 2006

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Judgment by:
Ryan J

[1] There is before the Court a motion on notice by the applicant, John William Henderson, seeking leave to appeal from an order of Sundberg J, of 13 December 2005. By that order, the proceeding, which had been instituted on 23 November 2004, was dismissed under O 20 r 2 of the Rules of this Court on the ground that it disclosed no reasonable cause of action. The applicant's statement of claim had undergone several amendments in an endeavour to plead all the elements of a cause of action of misfeasance in a public office against the respondent, Neil Mann, who has been sued in his capacity as Deputy Commissioner of Taxation.

[2] Sundberg J, on 13 December 2005, gave extensive reasons for dismissing the application. In the course of those reasons, his Honour identified the elements of the cause of action in tort for misfeasance in a public office. No exception has been taken by the applicant today to any part of the legal analysis which underlay his Honour's order. As I understand the factual basis on which the applicant sought to erect his course of action, it was that the respondent had issued garnishee notices which were served on the Property Officer of the Police Station at Cairns in Queensland and an officer of each of the Bendigo Bank and the Commonwealth Bank.

[3] Those garnishee notices were, concededly, invalid, having been issued before the relevant notices of assessment had been issued. It seems that the applicant had been arrested and taken into custody by the Queensland Police on 20 April 2002. At the same time a large amount of cash, $598,325, which is called, in the applicant's further amended statement of claim, "the Queensland cash", which was then in the applicant's possession, was impounded by the Queensland Police. Later, on 10 February 2003, the Queensland Police obtained an order in the Supreme Court of Queensland under the Criminal Proceeds Confiscation Act 2002 (Qld) restraining "any person from dealing with" the Queensland cash.

[4] In the course of his reasons for the order of 13 December 2005 ( [2005] FCA 1806) Sundberg J noted that injury is an essential ingredient of the cause of action for misfeasance in a public office; Northern Territory v Mengel (1995) 185 CLR 307 per Brennan J, at 357. Sundberg J then continued, at [12]-[15] of his reasons of 13 December 2005;

12 The applicant's claim must be dismissed for lack of any injury caused by the impugned conduct. The absence of damage or causation makes his claim so untenable it cannot possibly succeed: see General Steel Industries Inc v Commissioner for Railways (NSW ); (1964) 112 CLR 125 .

13 As to damage, the applicant has suffered nothing he would not or might not have suffered were the garnishee notices valid -- that is, if they were served after the assessments to which they related were served. It is not disputed that no moneys were forwarded to the respondent pursuant to the Police garnishee notice. Meanwhile, the moneys forwarded to the respondent pursuant to the Bank garnishee notices have been repaid with interest (see [7](c) and [15] of the earlier reasons ( [2005] FCA 1574)).

14 The applicant's written submissions -- which run to sixteen pages -- do not address the question of damage. Rather than avail himself of the opportunity provided by the relevant order to respond to the respondent's written submissions -- particularly in relation to the crucial question of damage squarely raised by those submissions -- the applicant merely elaborates upon the further amended statement of claim by way of bald assertions of an extremely serious nature as to the motives of the respondent and misconceived requests that the Court draw various inferences in support of the same. Most of these relate to ultimately peripheral issues such as the letter referred to in particular (i) to para 4 of the further amended statement of claim and the fact that, notwithstanding the various service notices described in particulars (l) to (t), a service notice in relation to the Police garnishee notice was not sent to the applicant's correct address.

15 As to causation, the order of the Supreme Court of Queensland described in particular (e) to para 4 of the further amended statement of claim rendered the Police garnishee notice a dead letter: it prevented any person, including the Queensland Police and the respondent, from dealing with the cash seized from the applicant. By his written submissions, the applicant contends that the Queensland Police and the respondent "collaborated [with] respect to the applicant" and the cash seized from him and that this is reflected in particulars (f) to (h). Nowhere does the further amended statement of claim say that. At most, it shows that the Queensland Police and the respondent communicated with one another in relation to the applicant. In any case, the Queensland Police doubtless had their own reasons for seeking to restrain any dealing with the cash seized from the applicant. The applicant's complaints in particular (e) as to the circumstances in which that order was obtained -- by someone other than the respondent who, in the absence of a tenable allegation to that effect in the further amended statement of claim, I must assume was not acting at the behest of the respondent -- are irrelevant to any claim against the respondent. (original emphasis)

[5] Annexed to the applicant's notice of motion for leave to appeal is a lengthy draft notice of appeal, some of the grounds of which impute a variety of errors to Sundberg J in making the order of 13 December 2005. Other grounds go to difficulties encountered by the applicant who is an unrepresented litigant and a remand prisoner at Port Phillip Prison and is being assisted by his brother who also has no legal training.

[6] Other so called "grounds" in the draft notice of appeal go to procedural difficulties which the applicant encountered in complying with an earlier order of Sundberg J of 8 November 2005 and in preparing a response to written submissions which had been filed and served on behalf of the respondent. However, the only reference in the grounds of the draft notice of appeal to the issue of injury or damage is that set out as follows at para 12(a) and (b);

a.

The Appellant pleads at 6 of the Statement of Claim that "As a result of the conduct referred to in paragraphs 2 to 4 above, the Applicant suffered and continues to suffer financial and personal loss and damage."

b.

The Respondent failed to adduce any evidence to prove that the Appellant didn't suffer any injury caused by the impugned conduct.

[7] The applicant has sought, by an affidavit filed today, to link the service of the garnishee notice served on the Bendigo Bank to a sale late in 2004 by that bank pursuant to a power conferred by a mortgage from the applicant. The applicant has today frankly conceded that this claim (that the issue of the garnishee notice triggered the exercise by the Bendigo Bank of its powers as mortgagee) was never raised before Sundberg J. That, in my view, was sufficient to demonstrate that his Honour made no error in holding that there was no material to suggest that the applicant had suffered any loss or damage related in a legally causative way to the issue and service of any of the three garnishee notices.

[8] A Full Court of this Court in Decor Corporation v Dart Industries Incorporated (1991) 33 FCR 397 has affirmed that the considerations which should inform the discretion which I am required to exercise are, first, whether in all the circumstances the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court. The second is whether substantial injustice would result if leave were refused supposing the decision of the primary Judge to be wrong. As already indicated, I am not persuaded that there is any doubt arising from the material before him about the correctness of Sundberg J's view that the applicant has not indicated any basis on which he could establish the relevant injury or loss which is an essential ingredient of the cause of action of misfeasance in a public office.

[9] In any event, even if I be wrong about that, I am not persuaded that substantial injustice would result from a refusal of leave. That is because it would remain open to the applicant, if he is not out of time, to reformulate his claim in fresh proceedings to raise, in particular, the allegations which have been ventilated for the first time today. Only Sundberg J's order for costs would remain unassailable and the view I take of that order is that it reflects, not an error by the primary Judge, but a persistent inability of the applicant to accommodate his pleading to take advantage of substantial indulgences afforded to him by his Honour. In these circumstances, the motion for leave to appeal must be refused with costs.