SUPREME COURT OF WESTERN AUSTRALIA

DEPUTY COMMISSIONER OF TAXATION v LA ROSA

Pidgeon, Wallwork and Heenan JJ

1 August 1997 - Perth

Heenan J In my opinion had I been faced with the application for stay or consideration of granting a stay as the learned Master was I would have had difficulty in finding that extreme personal hardship had been established.

The grounds of appeal are three in number but in my view they really are one ground expressed as three, and that ground is that this was not a case of extreme personal hardship to the taxpayer but, as my brothers have mentioned, those words should not be construed in a narrow way to exclude hardship on the part of the taxpayer ' s wife or even other members of the family. Their hardship after all usually will bear upon his situation.

My brothers have indicated that in their view this was such a case. The taxpayer is serving a long term of imprisonment. He has an obligation to support his wife but because of his situation, he is unable to do that himself. Her protection is of considerable importance to him and if he cannot be satisfied that she has a roof over her head, that might well, I suppose, amount to extreme personal hardship of the taxpayer.

I doubt whether, had I been in the situation of the learned Master, that I would have granted a stay of proceedings for three months. Some stay might well have been appropriate in my opinion but this was a matter for his decision and it is not for this court, although some members of it might have taken a different view as to the extent of the stay or even as to whether a stay should have been granted, to grant the appeal unless the court is satisfied that the learned Master was wrong.

So although the learned Master has acted in a way in which I do not believe I should have acted, I am far from satisfied that he has erred in exercising the jurisdiction which undoubtedly he had.

On my understanding of the state of the action, there is no provision for review of the situation at the end of the stay, that is, on or about 28 August. If the stay is to be extended, as I understand it, there would need to be an application made to the court before that date. If no application is made, that is the end of the stay and the appellant is entitled to proceed to recover or to set about recovery of the debt or part of it without undue delay.

According to my calculations, the judgment debt now is in excess of $1,000,000. So for those reasons which differ somewhat from those of my brother Judges, I also would refuse the appeal.