Joosse v Deputy Commissioner of Taxation of the Commonwealth of Australia [2003] FCA 1325

FEDERAL COURT OF AUSTRALIA

Joosse v Deputy Commissioner of Taxation of the Commonwealth of Australia [2003] FCA 1325 BANKRUPTCY – bankruptcy notice – default judgment – whether default judgment satisfactory proof of debt – whether the Court can go behind the judgment to assess for itself whether there is a debt owed – whether there is substantial reason to go behind judgment – whether arguable defence – whether defect in bankruptcy notice – whether counterclaim, set off or cross-demand available

Income Tax Assessment Act 1936 (Cth) ss 222AFA, 222AGA, 222AGB, 222AGC, 222AGD, 222AGF, 222AHA, 222ANA, 222APB, 222APC, 222APE, 222AOF Taxation Administration Act 1953 (Cth) Sch 1 s 255-5 Judiciary Act 1903 (Cth) s 78B Federal Court Rules (Cth) O 77 r 7, O 77 r 8(3) Wren v Mahony (1972) 126 CLR 212 followed Wolff v Donovan (1991) 29 FCR 480 followed Joosse v Deputy Commissioner of Taxation [2002] VSCA 48 referred to Textile Footwear and Clothing Union of Australia v Bellechic Pty Ltd (unreported, 19 November 1998) considered Textile Clothing & Footwear Union of Australia v Bellhop [1999] FCA 967 considered Textile Clothing & Footwear Union of Australia v Bellhop [1999] FCA 1095 considered James v Deputy Commissioner of Taxation (1957) 97 CLR 23 followed O'Reilly v The Commissioners of the State Bank of Victoria (1983) 153 CLR 1 followed WOLTER JOOSSE v DEPUTY COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA V 7033 of 2003 GRAY J 29 OCTOBER 2003 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 7033 of 2003

BETWEEN: WOLTER JOOSSE

APPLICANT

AND: DEPUTY COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA

RESPONDENT

JUDGE: GRAY J

DATE OF ORDER: 29 OCTOBER 2003

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The application the subject of the notice of motion filed on 14 October 2003 be dismissed. 2. The decision of Registrar Mussett, made on 23 September 2003, refusing to set aside the bankruptcy notice served on the applicant, be affirmed. 3. The applicant pay the respondent's costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.