Tegg v Deputy Commissioner of Taxation

By a statement of claim filed on the 21 June 2024 the plaintiff Mr Lance Tegg, seeks orders pursuant to ss 8 and 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) (the Cross-vesting Act) for (i) the removal of proceedings number 2023/00244063 brought by the defendant, the Deputy Commissioner of Taxation, against Mr Tegg in the District Court of New South Wales into the Common Law Division of this Court; and (ii) the transfer of those proceedings to the Supreme Court of Queensland. In support of his application, Mr Tegg relied on an affidavit sworn on 13 September 2024.

I was informed by Mr Farhan, who appeared for the defendant, that the defendant did not oppose the transfer of proceedings to Queensland.

By way of a statement of claim dated 31 July 2023, with an affidavit verifying affirmed on 1 August 2023, the Deputy Commissioner of Taxation commenced proceedings number 2023/00244063 against Mr Tegg in the District Court of New South Wales at Sydney seeking to recover an amount of $310,824.60 together with filing and service fees. It was alleged that this amount was due by way of tax-related liabilities arising out of the defendant’s directorship of a specified company. Mr Tegg’s defence included allegations that the matter had already been the subject of proceedings between the same parties in Queensland which had been resolved after a mediation ordered by the Queensland District Court in June 2020.

The Court has before it orders of the Queensland District Court made on 2 July 2020 in the proceedings between the Deputy Commissioner of Taxation and Mr Tegg. These orders stated:

Mr Tegg swore an affidavit on 13 September 2024 which set out the relevant circumstances. Mr Tegg is 76 years old and an aged pensioner who has lived in Queensland for the past 13 years and would prefer not to travel to Sydney for legitimate cost and health reasons related to hypertension. He is self-represented and has limited funds. It also appears that the Commonwealth Bank of Australia has obtained a judgment against him for more than $4 million which has not been paid.

It is not clear why the Deputy Commissioner of Taxation commenced fresh proceedings against Mr Tegg in New South Wales but did not oppose the present application.

Section 8 of the Cross-vesting Act relevantly provides:

In Amaca Pty Ltd v Mortimer [2023] NSWSC 117 Davies J held, at [4], that the test for removing proceedings from another court in New South Wales into this Court is not a particularly demanding one. Since the Deputy Commissioner of Taxation does not oppose the transfer to a Queensland court and it is necessary for the proceedings to be pending in this Court for that to occur under the Cross-vesting Act, it is appropriate to make an order under s 8(1)(b) removing the New South Wales District Court proceedings into this Court so that proper consideration can be given to the application to transfer the proceedings to Queensland.

The transfer of proceedings from this Court to a Queensland court is governed by s 5(2) of the Cross-vesting Act, which relevantly provides as follows:

This provision only permits the proceedings to be transferred to the Supreme Court of another State or Territory not another court of a State or Territory. Thus, if the proceedings are transferred, it will be a matter for the Supreme Court to which the proceedings are transferred whether those proceedings should then be removed to another court of that State or Territory.

Under s 5(2), the question in the present case is whether it is in the "interests of justice" to order the transfer of the proceedings to the Supreme Court of Queensland. The relevant principles were considered in BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61 (Schultz). These principles were helpfully summarised by Lonergan J in Pilbara Ports Authority v Ashton [2019] NSWSC 1488 at [12] as follows:

Taking into account the principles set out above, all of the evidence before this Court and the absence of opposition from the Deputy Commissioner of Taxation, I am satisfied that it is in the interests of justice for the proceedings to be determined in Queensland and, at least initially, by the Supreme Court of that State.

Under s 12 of the Cross-vesting Act, where a proceeding is removed to under s 8 to the Supreme Court, that court may make an order as to costs that relate to the conduct of the proceeding before the removal, if those costs have not already been dealt with by another court. It appears to me that in so far as there are any such costs in the District Court proceedings, an order should be made that they are to be costs in the cause. As far as the costs in this Court are concerned, since there was no opposition to the removal and transfer, there should be no order as to costs to the intent that each party should pay its own costs of the proceedings in this Court.

Accordingly, the orders of the Court are: