A recent decision by the District Court of Western Australia has criticised the ATO’s practice of routinely bringing summary judgment applications out of time. Will it be enough to force a change in the ATO’s practices?

Deputy Registrar Hewitt observed in Deputy Commissioner of Taxation v Babij that ‘the Deputy Commissioner… invariably brings applications for summary judgment outside the time permitted by the rules, and his delay in doing so is usually significant.’

Deputy Registrar Hewitt went on to say that the Deputy Commissioner ‘has not been diligent in pursuing this matter and certainly has not complied with the relevant rules concerning the filing of summary judgment applications’.

The Deputy Registrar also observed regarding the relevant claim against Mr Babij for ‘it is arguable that there was no effective step which [the defendant] could take’ to ensure his compliance with tax obligations. Indeed, the court considered that the defendant may not have even been reasonably expected to recognise any breach of his obligations. Therefore, the request for summary judgment was rejected on the factual grounds, in addition to being out of time.

Under the court rules, summary judgments are reserved for the clearest of cases. The court voiced its disapproval of the Deputy Commissioner bringing such an application in all of the circumstances and stated that ‘the way that this action has been conducted does not engender sympathy for the plaintiff’.

This decision brings to mind our other articles on the ATO’s obligations as a model litigant. In that article we discussed the high standards to which Government agencies are required to adhere within the litigation process.

Cove Legal offers specialist expertise in the area of tax disputes and insolvency.  We represent clients on all aspects of ATO debt recovery action (such as director penalty notices, garnishee notices, freezing orders, default assessments, audit requests and ATO criminal prosecutions). If you are facing actual or threatened ATO debt action or need advice on an insolvency situation generally, speak to us today.

Roger Blow, Practice Director, Ph: +61 8 6381 0326, or e: roger@covelegal.com.au

This publication is not intended to provide and does not provide legal advice. You should seek professional legal advice relating to your specific situation(s) before taking any action based upon its contents.

Australia’s largest hospital service, Metro North Hospital and Health Service, has been embroiled in claims of nepotism, corruption and ‘indefensible’ legal practices.

In 2018 four psychiatrists employed by Metro North commenced defamation proceedings against an ex-patient who had claimed in a blog post that she had been held unlawfully in a mental health facility. The psychiatrists sued the patient claiming $700,000 in damages plus interest and legal costs but surprisingly the legal costs for the proceedings were billed to Metro North, with taxpayers therefore ultimately picking up the tab.

A Metro North lawyer turned whistle blower stated that not only was it against an internal legal unit policy that patients not be pursued for defamation, it also raised concerns about the use of public funds to pursue essentially private litigation. He revealed that Metro North had developed a culture of aggressive litigation and cover-ups to avoid responsibility and attack people who challenged them.

In separate proceedings, Metro North was found by the Queensland Civil Administrative Tribunal to have unlawfully discriminated against a person by denying him a job because of his political activity.

Despite their obligations as a model litigant, Metro North persisted in ‘defending the indefensible’, even trying it was reported to bully the person into dropping their claim. This litigation was estimated to have cost taxpayers $2 million in damages and an estimated $500,000 in legal fees.

The medical and legal professions have long operated in close proximity to each other and case reports such as these bring into sharp focus the need for appropriate legal strategy and adherence to model litigant obligations where legal claims and rights are at stake that concern Government Departments or publicly funded regulatory bodies.

We have previously discussed the obligations of model litigants and how they ought to behave before, during and after litigation.

Cove Legal specialises in a wide range of commercial litigation and regularly assists its clients in responding to allegations made against them by government or regulatory bodies. In particular, Cove Legal has special expertise in assisting clients in the health sector. If you are facing actual or potential action from a government or regulatory body then contact us today.

Roger Blow, Practice Director P: +61 8 6381 0326 or e: roger@covelegal.com.au