Broker loses tax payment penalty appeal

Former ACI Broking (WA) and Australian Consolidated Insurance Director Wayne Robert Miller has lost an appeal over penalties ordered after the companies didn’t send required money to the Australian Taxation Office (ATO).

Appeal court justices in dismissing the appeal said that Mr Miller had taken a “dilatory approach” to the preparation of his evidence and backed a lower court decision against him being given more time.

The ATO took action against Mr Miller in 2017 seeking directors’ penalties totalling $361,841as a result of failures to remit pay-as-you-go amounts withheld from wages and salaries of employees.

The District Court of WA last year ruled in favour of the ATO, after in a lead-up hearing declining an application by Mr Miller for a time extension for providing affidavits.

Mr Miller appealed the decision on several grounds including that the primary judge erred in refusing leave to file late affidavit evidence.

But the appeal justices said Mr Miller had been given plenty of time, and the late request for an extension, shortly before the trial dates, counted against the application.

The primary proceedings had been on foot since June 2017, Mr Miller was on notice of the need to prepare an affidavit comprising his proposed evidence-in-chief since orders were made on February 3 2020, and at the time of the application hearing on February 19 2021, it had been over a year since the orders were made, they said.

They ruled “very little weight” should be given to Mr Miller’s description of medical conditions as a reason for his need for more time.

“The real reason for the lack of any apparent progress appears, from Mr Miller’s supplementary affidavit, to be the lack of financial resources to fund the preparation of his defence,” they say. “This had resulted in Mr Miller instructing his lawyers to stop work over extensive periods.”

Court hearing days are a valuable, but limited public resource, and if the trial dates were lost, it was unlikely another matter could be listed at such short notice, wasting public judicial resources, the decision says.

“In all of these circumstances, in our view the proper exercise of the judicial discretion was to dismiss the application to file and adduce late affidavit evidence,” Justices Graeme Murphy, Robert Mitchell and Acting Justice Christopher Bleby say.

“These considerations outweigh the self-inflicted prejudice suffered by Mr Miller as a result of his dilatory approach to the preparation of evidence in support of his defences over a period of more than a year.”

The decision is available here.