- Matheson, the original scum, ignored the many US cheques
and as a result of me being required to give evidence on Greenslade’s
Syndicates purchasing records, that scum Matheson passed off the
Syndicate’s exporting businesses as if they were my businesses – so
denying Greenslade’s US selling costs as income tax deductions and
rebates
- When I told Lawson of the Matheson Deception I did not
know that it was a crime, and I did not think of complaining about
Fisher, but Lawson would have known that Fisher should have objected to
Matheson’s Deception of a Witness particularly as I protested from the
witness box. I recall
Lawson being negative in the discussion I had with him.
- On December 21 2003, as I read this Mitchell J judgement
on the Internet I believe that Lawson was not prepared to raise the
Matheson Deception in the Greenslade Appeal Hearing and did not want to
do the work of putting into Court the hundreds of cheques, invoices,
bank deposits etc. Instead
Lawson worked on Greenslade’s tax agent, Mr W G Hobbs, and on
Greenslade, to get them to agree to settle.
- Lawson then compounded the damage inflicted by Matheson
and Fisher by settling the Appeal.with Vicic.
- Manager of the exporting syndicates, solicitor A T Gun,
bitterly criticised Lawson and Gun and Greenslade sacked Lawson.
- J Doyle QC (now Chief Justice) then represented
Greenslade before Mitchell J.
- Greenslade himself attended Court to tell Justice Roma
Mitchell that he wanted to proceed with the Appeal.
- Lawson is responsible for everyone’s losses.
Why did Lawson do it?
1. Covering up for Matheson?
2. Covering up for Fisher?
3. Lifting his profile with the ATO?
4. Did not want to do the work?
5. Certainly NOT for Greenslade and the 80 other people exporting
who paid for Fisher and who were paying for Lawson!
who was then acting for the
appellant, conversed by telephone in an attempt to reach terms of settlement
of the matters in dispute in the appeal. An agreement was reached and in a
letter sent by the Deputy Crown Solicitor to Messrs Fisher Jeffries & Co
its terms were set forth as follows:-
"(a) That the appeal would be dismissed with the Commissioner's consent
and that the appellant would pay the Commissioner's costs to be taxed;
(b)
That the basic tax of $4751.68 would be paid by 30 October 1978;
(c)
That the penalty for late payment which was calculated at $3726 would be
reduced by 33 1/3% so that the penalty due and payable is $2484.11;
(d)
That the reduced penalty be paid by 30 October 1978;
(e)
That the Commissioner's costs be taxed in the event that agreement as to the
same cannot be reached;
(f)
That the Commissioner's costs be paid by the appellant within 14 days of
agreement or taxation."
It is not disputed that this
agreement was reached. An affidavit of Mr Lawson, filed on behalf of the
appellant, discloses that at a conference with the appellant and his tax
agent, Mr W G Hobbs, held on 19 September 1978 Mr Lawson received
instructions to negotiate with the solicitors for the respondent for a
settlement of the matters in dispute between the parties upon a basis decided
upon at that conference. The offer to settle was duly made by Mr Lawson in a
letter dated 29 September 1978 sent by him to the Deputy Commonwealth Crown
Solicitor. That offer was rejected. On 13 October
1978 (just 3 days before the Hearing) Mr Lawson spoke to the appellant (Greenslade) and
received instructions to withdraw the appeal and to secure the most
favourable terms that he was able to obtain to have the penalty tax
reduced. Acting upon those instructions Mr Lawson agreed to the
above-mentioned settlement.
Look at The Lawson Deal!
·
Instead
of the 80 people paying his legal costs Greenslade withdrew his appeal and
was up for all of his legal costs
·
and
also pay the Commissioner’s taxed costs
·
and he
also had to pay his assessed tax plus penalty
·
instead
of winning and paying no tax!
It appears from an affidavit of Mr A T Gun, also filed on behalf of the
appellant, that he, the appellant, and about 80 other persons lodged appeals
against assessments of taxation made by the respondent in relation to similar
activities. The grounds of appeal were similar in all cases. When the
assessments were issued all those affected contributed to a fund to finance
the appeals and agreed that the appellant's appeal before the Board of Review
should be regarded as a test case. There was no agreement to this effect with
the respondent. Why did Lawson not make this
agreement with the ATO for a test case?
Lawson’s Negligence?
The appellant's costs had
been paid from the fund. Mr Lawson was first instructed by Mr Gun and the
appellant. Mr Lawson was then informed that the
appellant's legal fees were to be paid out of the fund. On 11
July 1978 the appellant and Mr Gun saw Mr Lawson and Mr Gun explained the
history of the proceedings. In fact, according to Mr Gun's affidavit, the
appellant was present for only a short time and Mr Gun remained for about two
hours instructing Mr Lawson. He said that he
told Mr Lawson that his instructions were to come from Mr Gun.
On 22 September 1978 Mr Gun
wrote to Mr Lawson a letter in which he complained bitterly about Mr Lawson's
handling of the matter
but in that letter it is clear that Mr Gun understood that the appellant did
not then intend to proceed with the appeal.
- In September 1978
Greenslade offered a settlement that the Deputy Commonwealth
Crown Solicitor rejected.
- On October 13 1978, just 3 days before the Appeal Hearing was due to commence, Lawson pressed Greenslade on the phone for
authority to settle on Lawson's - 'trust me' - terms!
- When Greenslade found
out what 'trust me' Lawson had settled for he asked me to help
him.
- I told Greenslade that the Lawson
Deal was indeed very bad for him and as he was being railroaded by
Lawson he must sack Lawson and Appear for himself and tell the
Court that he wants to continue with his appeal.
- Greenslade is a farmer living on
Yorke Peninsula and could not get to the Court in time so I explained
that from the body of the Court.
When the matter was called on for hearing Mr Matheson intimated that the respondent was
willing to carry out the terms of the agreement in so far as it rested upon
him to do so and submitted that in these circumstances the appeal should be
dismissed. The appellant, who was then
unrepresented,(because Lawson was sacked)
was not present but someone, who claimed to speak on his behalf, said that
the appellant wished to proceed with the appeal. I adjourned the matter until
the next morning when the appellant was present and confirmed that he wanted the appeal to be heard.
Under the settlement the appellant
would be better off than if he persisted in his appeal and was wholly
unsuccessful,(Garbage words all about ‘petty cash’ AND without regard to
the fighting fund NOT paying any further Legal Costs for Greenslade) in that the settlement
gave him until 30 October to pay the amount of tax found to be due according
to the decision of the Taxation Board of Review, and reduced the amount which
would otherwise be payable for additional tax levied pursuant to s 207 of the Income Tax
Assessment Act 1936-1976. Under that section the Commissioner has a
discretion to remit the additional tax or any part thereof and therefore the
agreement to reduce the penalty for late payment is not under the present
Act, as it was held by Starke J to be under the Income Tax Assessment Act
1922-1925, an infringement of the judicial power. See Attorney-General for
the Commonwealth v E A & L Abraham (1928) 1 ALJ 388.
Mr Doyle (replaced Lawson) who first
appeared for the appellant on 25 October 1978, submitted that the Commissioner had no
jurisdiction to reduce the penalty for late payment in this case as the
appeal was before the court and the assessment could be altered only on the
appeal pursuant to s 202 of the Act. Of
course this appeal is, as Mr Matheson
pointed out, an appeal against a decision of the Board of Review upholding
certain of the Commissioner's decisions on objections to the assessment. In
any event it seems to me that the fact that an appeal has been lodged does
not prevent the Commissioner from acting under s 207 to remit part of
the penalty for unpaid tax.
The question for decision is whether
the agreement is enforceable so that the appeal must be dismissed and the
parties left to their agreed rights. The policy of the courts is to enforce a
compromise of an action where it is made bona fide and without any impropriety.
(There was impropriety: Lawson did not prepare to
appeal as he did not want to point out the faulty behavior of Matheson and
Fisher nor the extortionate actions of the ATO, particularly in view of the
ATO having photocopies of hundreds of US cheques and the prior full
disclosure by the taxpayers coupled with the prior clearance by the ATO)
See Binder v Alachouzos [1972] 2 QB
151 (CA); [1972] 2 All ER 189; Dixon v Evans (1872) LR 5 HL 606 at 618-19 and
622. Even if it is later established that one of the claims settled by
compromise was not well founded in law a compromise will not be set aside
provided that the claim was bona fide: Holsworthy Urban District Council v
Rural District Council of Holsworthy [1907] 2 Ch 62. A right to appeal may be
abandoned and, if the abandonment is embodied in an order of the court, then
no appeal will be entertained. See Jones v Victoria Graving Dock Co (1877) 2
QBD 314 (CA); Re West Devon Great Consols Mine (1888) 38 Ch D 51 (CA). Even
where there is no order negating the right of appeal and no undertaking not
to appeal the right of appeal may be lost where the "intending appellant
... has in equity or at law released his right of appeal" per Viscount
Maugham in Lissenden v CAV Bosch Ltd [1940] AC 412 at 420; [1940] 1 All ER
425 at 430.
Mr Doyle submitted that the court had
a discretion as to whether it would enforce a settlement, one of the terms of
which was that an appeal would be dismissed until the order of dismissal had
been made and that, in the instant case, the
discretion should be exercised in favour of the appellant who now wishes to
continue with the appeal. The ground upon which he submitted that the
discretion should be so exercised was that the rights of persons other than
the appellant were entitled to consideration. He referred to those who had
contributed to the fund to finance this appeal and whose appeals against
assessments were awaiting the result of this appeal. He submitted that the
court had a general discretion to refuse to make an order in terms of a
compromise even although that compromise had been duly entered into between
parties sui juris. In support of this argument he cited several
authorities. The first of these was Tomlinson v FC of T (1977) 7 ATR 630; 77 ATC
4309. That was a motion for an order that a judgment which had never been
entered in the Registry be set aside. Meares J, who heard the notice of motion,
referred to a discretion to set aside the judgment but, as I understand his
reasons, it was a discretion to be exercised upon specific grounds. There was
no suggestion by him that there was a general discretion so to do. The next
case was Harvey v Phillips (1956) 95 CLR 235 which was an appeal from a
refusal by the Full Court of New South Wales to set aside a judgment entered
after counsel had announced a settlement. I do not think that the judgment in
that case supports Mr Doyle's proposition. He relied upon that portion of the
reasons for judgment in which the court said of the case before it: "It
is not a case where the assistance of the court is sought or invoked to carry
a compromise into effect which otherwise could not be enforced by the party relying
upon it. In such a case the assistance may be refused on grounds not
necessarily sufficient to invalidate a simple contract." Mr Doyle
submitted that in this case the terms of settlement could not be carried into
effect unless the court assisted by dismissing the appeal. I do not think
that the High Court was referring to that type of case. There are some cases
in which the assistance of the court has to be sought in order to carry a
compromise into effect, for example where a compromise is made on behalf of a
person under legal disability. In Harvey v Phillips, supra, at 243
there appears later in the judgment the following passage: "But in the
case of a compromise which is made within the actual as well as apparent
authority of counsel a court does not appear to possess a discretion to
rescind it or set it aside." That sentence appears to me to be
conclusive against the argument of Mr Doyle. Finally Mr Doyle relied upon a
passage from a judgment of Fullagar J in Henson v Marco Engineering (Aust)
Pty Ltd [1948] VLR 198 at 203. The question there was whether the defendant
was bound by the terms of a settlement entered into by counsel. The passage
upon which Mr Doyle relied was the following:-
"Mr Smith (for the plaintiff) put it that, in cases of this type, there
was no agreement or promise to do anything except to consent to the making of
an order. The court was never bound to make the order, and, if, when it was
asked to make it, it was seen that the client had not really consented, the
court could, and generally would, refuse to make the order. (It would appear
that a real consent cannot be withdrawn: Harvey v Croydon Union Rural
Sanitary Authority [1881-1885] All ER 1031; 26 Ch D 249). Where, on the other
hand, as here, there is an actual contract on the one hand, to pay money, and
on the other hand to abandon a cause of action, obligations are, Mr Smith
said, definitely and finally imposed without any act of the court being
required, and the court has no function other than that which devolves upon
it when it is asked to enforce any ordinary contract and, in the course of
performing its function, to apply well-settled rules of the law relating to
agency. I agree with Mr Smith's analysis of the position, but I would add one
observation. It is possible that a contract made by way of compromise might
come before the court in its equitable jurisdiction, as, for example, in a
suit for specific performance. It might well be that the absence of actual
authority by the client could be regarded as a matter capable of affecting
the discretion of the court where the plaintiff relied on apparent authority
of counsel or solicitor."
Mr Doyle submitted that the learned
judge recognized the discretion in the court to refuse to make an order in
the terms of a settlement at least in its equitable jurisdiction; that I had
such a discretion, and that I should take into consideration the whole of the
matters which have been placed before me, including the fact that Mr Gun and
others in the like position to his wished the appeal to proceed, as well as
the fact that the appellant now wished to proceed with the appeal. However,
as I have already said, there was no agreement with the respondent that the
appellant's case should be regarded as a test case, and I find no privity
between Mr Gun and the taxpayers affected other than the appellant on the one
hand and the respondent on the other in relation to this appeal. As Fullagar
J pointed out Harvey v Croydon Union Rural Sanitary Authority, supra,
is clear authority for the proposition that a consent to an order cannot be
withdrawn before the order is made if the parties have consented to such an
order being made. It seems to me that an order that an appeal be dismissed
stands in the same situation as any other order to which parties may agree.
Mr Doyle very properly drew my attention to National Benzole Co v Gooch
[1961] 3 All ER 1097 in which the court of Appeal held that, although an
appeal was not determined until a formal order had been drawn up and entered,
where there was an agreement by way of compromise between the parties for
good consideration to terminate the appeal the court would not, in the
exercise of its discretion, allow the appeal to proceed. There was, as I have
pointed out earlier in these reasons, some consideration moving from the
respondent to the appellant in the agreement that the appeal would be
dismissed in so far as the amount of penalty tax to be paid by the appellant
was to be reduced.
Finally Mr Doyle
referred to Neale v Gordon Lennox [1902] AC 465; [1900-1903] All ER 622. In
that case counsel had exceeded his authority and the judgment of the House of
Lords was that, in those circumstances, the court was not bound to make an
order in the terms of a settlement which counsel had made without proper
authority. I am satisfied that in this matter Mr Lawson did not exceed the
authority given to him by the appellant.
I had some doubt at one
stage as to whether the Commissioner of Taxation was in the same position as
any other respondent in appeal proceedings but upon reflection I have come to
the conclusion that he is. By s 208 of the Income Tax
Assessment Act income tax is a debt due to the Queen on behalf of the
Commonwealth and payable to the Commissioner of Taxation. I can see no reason
therefore to differentiate the Commissioner of Taxation from any litigant in
proceedings which relate to recovery of money. In my opinion the respondent
is entitled to have the terms of settlement enforced.
I have given
consideration to whether I can dismiss the appeal in the proceedings before
me or whether the respondent is bound to take separate proceedings upon the
compromise. See McCallum v Country Residences Ltd [1965] 2 All ER 264. I have
reached the conclusion that I have power to dismiss the appeal in the terms
of the agreement for compromise reached between the parties. In McCallum v
Country Residences Ltd Lord Denning MR, with whose reasons Winn LJ agreed,
rested his decision that a Tomlin order was made without jurisdiction upon
the fact that, although the order embodied the terms of a compromise duly
reached, it was not made by consent. His Lordship said at page 265: "In
the absence of a consent to the order as distinct from a consent to
the agreement, I do not think that the court has jurisdiction to make
an order ... Of course, if there could have been found a consent to the order
being made, it would have been a different matter." In the instant
matter one of the terms of settlement is that the appeal will be dismissed
and that the appellant will pay the respondent's costs to be taxed. Those
terms must mean that there will be orders first that the appeal be dismissed
and secondly that the appellant pay the respondent's costs to be taxed as the
costs cannot be taxed in the absence of an order. In my view it is clear that
those terms can be made an order of the court in these proceedings. The
appeal must be dismissed.
When this matter was
further adjourned upon the application of Mr
Matheson made on 25 October 1978, upon the ground that the respondent
had only shortly before been served with the affidavits of Mr Lawson and Mr
Gun, I pointed out that 30 October, which was the first day after 25 October
upon which I could hear counsel, was the day upon which the appellant was
due, according to the settlement, to pay the amount of tax payable by reason
of the decision of the Taxation Board of Review. I thought that the appellant
should not suffer any disadvantage in relation to penalty tax because the
matter was to be further adjourned. On 30 October Mr Matheson informed me that it had been agreed
that, in the event of my upholding the submission on behalf of the
respondent, the appellant was to have a further 14 days from the date of my
judgment within which to pay the tax and the reduced penalty. If the
appellant wishes it I think that the terms relating to penalty tax should be
embodied in the order of the court so that it is clear in these proceedings
that the respondent may not claim a penalty beyond that agreed upon, provided
that the amount due to him by the appellant for basic tax and for penalty is
paid within the agreed time.
Solicitors for the appellant: Mollison
Litchfield.
Solicitor for the respondent: Commonwealth
Crown Solicitor.
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