Cameron v Chief Commissioner of State Revenue [2003] NSWSC 70

New South Wales Supreme Court

CITATION : Cameron v Chief Commissioner of State Revenue [2003] NSWSC 70 HEARING DATE(S) : 14 February 2003 JUDGMENT DATE : 14 February 2003

JURISDICTION: Common Law Division Administrative Law List JUDGMENT OF : Dunford J DECISION : Summons dismissed with costs.

CATCHWORDS : Issue Estoppel - defence pleaded in District Court proceedings - those proceedings decided adversely to the plaintiff - plaintiff brings fresh proceedings raising same issue in this Court Blair v Curran (1939) 62 CLR 464 CASES CITED : Stewart v The Government Insurance Office of New South Wales (1996) 39 NSWLR 531 Spautz v Butterworth (1996) 41 NSWLR 1 Harpas v The Commissioner of Taxation (2001) NSWSC 1064, (2002) NSWCA 198 PARTIES : Douglas John & Liane Cameron (Plaintiffs) Chief Commissioner of State Revenue (Defendant) FILE NUMBER(S) : SC 30102/02 COUNSEL : A Johnson - solicitor (Defendant) SOLICITORS : Plaintiff in person IV Knight (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST

DUNFORD J

Friday, 14 FEBRUARY 2003

30102/02 DOUGLAS JOHN CAMERON & ANOR v CHIEF COMMISSIONER OF STATE REVENUE

JUDGMENT 1 HIS HONOUR: By Summons filed 30 October 2002, the plaintiff seeks a number of what are referred to as "orders", but which are really declarations, to the effect that there has been no valid appointment of the Chief Commissioner of State Revenue and, accordingly, that stamp duty cannot be paid to such Chief Commissioner. 2 The Chief Commissioner, who is the defendant, has, by Notice of Motion filed on 12 December 2002, applied for summary judgment or, alternatively, that the proceedings be struck out, and the affidavit filed in support of such Notice of Motion details the course of proceedings in action no. 800 of 2001 in the District Court at Parramatta, wherein the Chief Commissioner sued the present plaintiff for unpaid stamp duty. 3 The plaintiff filed a Notice of Grounds of Defence and, on 9 August 2002, her Honour Judge J C Gibson ordered that such defence be struck out and that summary judgment be entered in favour of the Chief Commissioner in the sum of $82,351.45 inclusive of interest, together with costs. 4 There is, in my opinion, a fundamental and fatal defect in the plaintiff's proceedings by reason of the principle of issue estoppel. As appears from her Honour's judgment, at p 2, the "second basis for the defence (in the District Court was) whether or not the Chief Commissioner has been validly appointed". 5 Her Honour rejected that defence, ruled that it was hopeless and, accordingly, ordered that it be struck out and gave summary judgment to the Chief Commissioner in the amount claimed. 6 The principle of issue estoppel was authoritatively stated by Dixon J in Blair v Curran (1939) 62 CLR 464 at 531-32 as follows: "A judicial determination directly involving an issue of fact or law disposes once and for all of the issue, so that it cannot afterwards be raised between the same parties or their privies." and he went on to say: "The distinction between res judicata and issue estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, while in the second (ie issue estoppel), for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by prior judgment, decree or order". See also Stewart v The Government Insurance Office of New South Wales (1996) 39 NSWLR 531, Spautz v Butterworth (1996) 41 NSWLR 1 at 19-20. I have also been referred to an article, Res Judicata: General Principles and Recent Developments by Handley JA in (1999) 18 Australian Bar Review at 214. 7 In the present case, the validity of the appointment of the Chief Commissioner was put in issue by the present plaintiff in his defence in the District Court. The judgment of the District Court was a judicial determination directly involving that issue and so it disposed of that issue as between the parties once and for all, and it cannot afterwards be raised between the same parties or their privies in other proceedings. 8 Her Honour held that the amount in question was due and payable by the defendant (present plaintiff) to the Chief Commissioner. That necessarily involved a finding that the person acting as the Chief Commissioner was entitled to so act and to receive the amount claimed. That issue, therefore, cannot be re-litigated between the same parties in any other proceedings. 9 It is, of course, open to the plaintiff to seek to challenge that decision of the District Court in the Court of Appeal. To do so, he would require leave to appeal, having regard to the amount involved, and he would at this stage also need to seek leave to apply for leave to appeal out of time. 10 The plaintiff has drawn my attention to a number of passages in the transcript of argument where her Honour expressed the view that the District Court did not have power to determine the issue of the valid appointment of the Chief Commissioner, and there is a passage on p 4 of her judgment to the same effect. In this regard, I am satisfied that her Honour was in error. 11 The issue of the appointment of the Chief Commissioner was expressly raised by the Notice of Grounds of Defence in the District Court, and was therefore an issue which was essential to the determination of the proceedings. The fact that her Honour failed to deal with it does not have the effect of entitling the present plaintiff to commence fresh proceedings in this Court. As I say, his remedy is to challenge her Honour's finding and reasoning in the Court of Appeal. 12 Finally, I should refer to the case of Harpas v The Commissioner of Taxation (2001) NSWSC 1064, (2002) NSWCA 198. In that case, the plaintiff was the defendant in pending District Court proceedings and applied to this Court for a declaration that the notice on which the District Court proceedings were based was invalid. I held the notice was valid and my decision on this point was upheld in the Court of Appeal. 13 However, Handley JA, speaking on behalf of the Court of Appeal, went on to say: "Although the point was not taken by the Commissioner before Dunford J, the commencement of proceedings for a declaration in the Supreme Court when an action raising the same issue is pending in the District Court is totally inappropriate. If objection had been taken, the Supreme Court should have dismissed these proceedings without embarking on the merits. If anyone else is tempted in the future to take proceedings in the Supreme Court for a declaration when an action raising the same issue is pending in the District Court, the Court itself or the Commissioner should object to that procedure." 14 For these reasons, I am satisfied that this is a case for summary judgment and, accordingly, I order that the Summons be dismissed with costs.