MacDonald v Deputy Commissioner of Taxation

In this recent decision, the appellant contended that, as a matter of principle, summary judgment should not be granted on the basis of an irregular pleading. The Court summarily dismissed that argument.

Sofronoff P and Gotterson and Philippides JJA

15 September 2017

This matter concerned an appeal from a decision granting summary judgment in favour of the respondent, the Deputy Commissioner of Taxation, against the appellant. [1].

In February 2015, the respondent commenced proceedings against the appellant in the District Court, claiming an amount by way of debt due to the Commonwealth and payable to the Commissioner of Taxation together with further general interest charges and costs. [4]. The appellant filed a notice of intention to defend and a defence in April 2015. [6]. In October 2016, the respondent applied for summary judgment pursuant to r 292 of the Uniform Civil Procedure Rules 1999 ("UCPR"). [7].

The appellant's resistance to the summary judgment application, at first instance and on appeal, was based on various alleged deficiencies in the case pleaded in the statement of claim. [12]. Principally, the appellant alleged that the respondent had failed to plead the material facts upon which it relied to establish its cause of action, as required by r 149(1)(b) of the UCPR. [26]. The appellant submitted that there was a "principle that summary judgment should not be granted on the basis of an irregular pleading and where default judgment, if obtained, would be set aside". [26].

Gotterson JA (with whom Sofronoff P and Philippides JA agreed) said that the principle contended for by the appellant had "no support in the language of r 292 itself. Nor [did] it find support in the decisions of the Supreme Court of Queensland or comparable Australian courts concerning comparable summary judgment provisions". [37]. In contrast, "certain summary judgment decisions of the Supreme Court of Queensland tell against the existence of such a principle": Equititrust Ltd v Gamp Developments Pty Ltd [2009] QSC 115, [12]. [38].

His Honour confirmed that r 292 "does not limit the power to give summary judgment to instances where the plaintiff's argument precisely accords with its pleading". [39]. However, "there may be instances where summary judgment ought to be refused because a statement of claim is so deficient as to mislead a defendant as to the plaintiff’s true cause of action". [40]. That was not the case here. There was prima facie evidence, unchallenged by the appellant, which supported the respondent's claim. [42]. The appellant had not established that he had any real prospect of defending the respondent's claim. [42].

Accordingly, the appeal was dismissed. [43].

J English