Bennelong Medical Pty Ltd v Commissioner of Taxation (No

[2024] ACTCA 39

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Bennelong Medical Pty Ltd v Commissioner of Taxation (No 7)

Citation: 

[2024] ACTCA 39

Hearing Date: 

29 November 2024

Decision Date: 

23 December 2024

Before:

McWilliam J

Decision: 

(1)   The application filed 18 September 2024 is dismissed.

Catchwords: 

APPEAL – JURISDICTION – Application to strike out appeal – where self-represented director of appellant company filed notice of appeal without leave to represent company – whether appeal incompetent – where irregularity not a matter affecting competency – application dismissed

Legislation Cited: 

Court Procedures Rules 2006 (ACT) rr 30(4), 30(5), 30(6), 1450, 1505(2), 5001(2), 5472, 5604

Supreme Court Act 1933 (ACT) s 37J(1)(h), 37J(1)(k)

Cases Cited: 

Bailey v Marinoff (1971) 125 CLR 529

Bennelong Medical Pty Ltd v Commissioner of Taxation [2023] ACTSC 74

Bennelong Medical Pty Ltd v Commissioner of Taxation (No 2) [2023] ACTCA 28

Bennelong Medical Pty Ltd v Commissioner of Taxation (No 3) [2023] ACTCA 37

Bennelong Medical Pty Ltd v Commissioner of Taxation (No 4) [2024] ACTSC 190

Bennelong Medical Pty Ltd v Commissioner of Taxation (No 5) [2024] ACTSC 194

Bennelong Medical Pty Ltd v Commissioner of Taxation (No 6) [2024] ACTCA 21

Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246

Davey v Herbst (No 2) [2012] ACTCA 19

Endresz v Commonwealth of Australia [2020] ACTCA 48

Hall v Nominal Defendant (1966) 117 CLR 423

National Parks and Wildlife Service v Pierson [2002] NSWCA 273; 55 NSWLR 315

Nominal Defendant v Manning [2000] NSWCA 80; 50 NSWLR 139

Quach v ATM Residential Pty Ltd (No 2) [2024] ACTCA 38

Ryan v Bunnings Group Ltd [2021] ACTCA 43

Parties: 

Bennelong Medical Pty Ltd (Appellant)

Commissioner of Taxation (Respondent)

Representation: 

Counsel

Self-represented ( Appellant)

J Moffett ( Respondent)

Solicitors

Self-represented ( Appellant)

Australian Government Solicitor ( Respondent)

File Number:

AC 19 of 2024

McWILLIAM J:         

1․This proceeding concerns an appeal from a judgment of Mossop J delivered on 21 June 2024: Bennelong Medical Pty Ltd v Commissioner of Taxation (No 5) [2024] ACTSC 194 (Bennelong (No 5)). 

Application for determination

2․The application before the Court for determination is dated 18 September 2024.  It was filed by the respondent, the Commissioner of Taxation (the Commissioner). The Commissioner seeks to strike out the appeal, pursuant to r 5472 of the Court Procedures Rules 2006 (ACT) (Rules), on the basis that the Notice of Appeal was incompetent. The reason given by the Commissioner was that the appellant, a corporation, did not have leave to appear by its director, Dr Quach and this was in breach of r 30(4) of the Rules, which require a corporation to commence proceedings by a solicitor acting for the corporation or, with the Court’s leave, by an officer of the corporation.

3․The alternative order sought (which was in fact more severe than the primary relief sought) was that the appeal proceeding be dismissed for the same reason as that founding the strike-out application, specifically that the Notice of Appeal was not signed by a solicitor and did not state the particulars of any solicitor acting for the appellant.

The orders and reasons in Bennelong (No 5)

4․The orders made by Mossop J were final orders as the legal effect of his Honour’s decision was to finally dispose of the rights of the parties: Hall v Nominal Defendant (1966) 117 CLR 423 at 439-441 per Taylor J, Owen J agreeing, 444 per Windeyer J; Carr v Finance Corporation of Australia Ltd (No 1)  (1981) 147 CLR 246 at 248 and 253-254.

5․However, it should be explained that Mossop J’s decision concerned two matters. The first was whether, at the final hearing, Dr Quach could appear on behalf of the appellant company of which he was a director. Dr Quach did not have leave to appear (a matter discussed further below), which was required pursuant to r 30 of the Rules. Because of that fact, notwithstanding that the director of the appellant was present in the courtroom, Mossop J dismissed the proceeding for non-appearance by the company, pursuant to r 1505(2) of the Rules.

6․The second and separate reason for dismissing the proceeding was that Mossop J determined the application itself lacked merit (Bennelong (No 5) at [24], [28]-[36]).  Whether there had in fact been a “hearing on the merits” given that one party did not appear might be an interesting question, although previous authorities in this Court have held that final orders do not necessarily require a judgment on the merits for their finality: Endresz v Commonwealth of Australia [2020] ACTCA 48 at [46], applying Bailey v Marinoff (1971) 125 CLR 529 at 530.

7․This is relevant to the present application because the finality of the orders meant that the appellant did not need leave to appeal.  It only required leave of the Court to have its director represent it. 

Procedural history

8․Acknowledging at the outset the tedious nature of a journey through a matter’s procedural history, it is helpful context here, to assist in understanding the arguments on the application and their resolution.

9․Back in 2023, Mossop J had made an order refusing Dr Quach leave to appear on behalf of the company in the proceedings that his Honour ultimately determined in 2024: Bennelong Medical Pty Ltd v Commissioner of Taxation [2023] ACTSC 74. The appellant sought to appeal that interlocutory decision twice:

(a)In respect of the first attempt, the respondent succeeded in striking out the appeal: Bennelong Medical Pty Ltd v Commissioner of Taxation (No 2) [2023] ACTCA 28 (Bennelong (No 2)). 

(b)The second attempt also resulted in a strike out: Bennelong Medical Pty Ltd v Commissioner of Taxation (No 3) [2023] ACTCA 37 (Bennelong (No 3)).  In that decision Taylor J decided that an appeal from the decision of Mossop J required leave to appeal, and that, as leave had not been sought, the appeal was incompetent (see [36] of Taylor J’s reasons).

10․The appellant then tried again to obtain an order permitting Dr Quach to represent the company, but this further application was unsuccessful, essentially because there were no changed circumstances in Dr Quach’s relationship with the company from the primary judgment, which was found by Loukas-Karlsson J to constitute an abuse of process: Bennelong Medical Pty Ltd v Commissioner of Taxation (No 4) [2024] ACTSC 190 (Bennelong (No 4)) at [87]-[90]. In making that finding, her Honour cited (at [86]), Nominal Defendant v Manning [2000] NSWCA 80; 50 NSWLR 139 (Manning) at [71]-[72], a decision which was later clarified in National Parks and Wildlife Service v Pierson [2002] NSWCA 273 (National Parks); 55 NSWLR 315 at [16]-[17]. The overarching principle governing whether a second or subsequent interlocutory application should be entertained (assuming there is no issue estoppel) is that the Court should do whatever the interests of justice require in the particular circumstances of the case: Manning at [46]; National Parks at [19].

11․The appellant then appealed the decision of Loukas-Karlsson J.  However, that appeal from an interlocutory order was dismissed by Elkaim AJ: Bennelong Medical Pty Ltd v Commissioner of Taxation (No 6) [2024] ACTCA 21. His Honour took the view (at [24]) that because in the meantime, the decision that is presently the subject of appeal, Bennelong (No 5), had been handed down and this appeal proceeding commenced, the appeal of an interlocutory decision of Loukas-Karlsson J was more properly brought as part of the appeal proceedings from the final orders made.

12․That leaves the present appeal proceeding as a proceeding in which the orders of Mossop J in Bennelong (No 5) and of Loukas-Karlsson J in Bennelong (No 3) may be challenged, although the notice of appeal has not yet been amended following the decision of Elkaim AJ to make it clear that the appellant intends to challenge both decisions.  In due course, this should be addressed to properly disclose the issues for determination on appeal.

The Court’s jurisdiction

13․Procedural matters in appeal proceedings may be heard and determined by the appeal court constituted as a single judge: s 37J of the Supreme Court Act 1933 (ACT). The list of matters which a single judge of the Court of Appeal may deal with under s 37J(1) of that statute includes dismissal of an appeal or other proceeding for want of prosecution (subs (h)) or for any other reason prescribed under the Rules, as well as any other question of practice and procedure in the Court of Appeal (subs (k)) (which would include striking out a notice of appeal).

14․That power is supported by r 5604 of the Rules, which expressly provided that the Court of Appeal may be constituted by a single judge in relation to hearing and deciding the dismissal of an appeal under s 37J(1)(h) for a number of reasons, one of which is that the appeal is incompetent or that the appellant has failed to comply with any relevant rules of court.

15․Thus, the jurisdiction here being exercised is that of the Court of Appeal, comprised by a single judge, determining a procedural dispute, including dismissal under the Rules (as opposed to substantive dismissal of an appeal on the merits).

Applicable rules

16․The relevant parts of r 30 are subrr (4)-(6) of the Rules. They are in the following terms:

30 Who may start and carry on a proceeding

…

(4)A corporation may start and carry on a proceeding in the Supreme Court—

(a)by a solicitor acting for the corporation; or

(b)with the court’s leave, by an officer or employee of the corporation authorised by the corporation to represent it.

(5)If an application for leave under subrule (4) is made during the proceeding or after judgment is given in the proceeding, the application must be made in accordance with part 6.2 (Applications in proceedings).

(6)For the Supreme Court, if an application for leave under subrule (4) is made before the proceeding starts, the application must be made by originating application.

…

17․Under r 5001(2), r 30 applies to an appellate proceeding with any necessary changes. In r 30(6), a necessary change here is to substitute a “notice of appeal” for the reference to originating application, as that is the relevant originating process that commences an appeal where leave is not required.

18․The combined effect of those subrules as applied to the present circumstances is that (1) a corporation requires leave for a director to represent it; (2)  if a corporation seeks leave after an appeal proceeding has commenced, then an application in the appeal proceeding will be required; and (3) if it is made before (or when) the appeal commences, it is to form part of the notice of appeal. 

Is the appeal incompetent for failure to comply with r 30 of the Rules?

19․The Commissioner argued here that the purported commencement of appeal proceedings without a solicitor was a question of jurisdiction and therefore of competency.  However, I disagree, for the following reasons. 

20․As pointed out in Quach v ATM Residential Pty Ltd (No 2) [2024] ACTCA 38 at [55], a failure to comply with the Rules is an irregularity and does not make the proceeding or a document in the proceeding void: r 1450 of the Rules.

21․The same point was made by reference to appellate authority in a previous judgment of the Court of Appeal involving the present parties, again constituted by a single judge, namely Bennelong (No 2) at [6], where Curtin AJ cited Davey v Herbst (No 2) [2012] ACTCA 19 at [99]-[100] and Ryan v Bunnings Group Ltd [2021] ACTCA 43 at [114], stating that questions of competency are concerned with the jurisdiction of the Court to entertain the appeal.

22․One of the orders sought in the Notice of Appeal is that leave be granted for the appellant to be represented by an authorised officer pursuant to r 30(4) of the Rules. Although the order sought did not identify whether that leave was sought in relation to the proceeding at first instance or on appeal, the appellant clarified during the hearing that he was seeking leave in relation to the appeal, in addition to the proceeding at first instance, if the appeal were ultimately to be allowed.

23․That a party is able to seek leave to be represented by an authorised officer at the same time as an appeal proceeding is commenced is made clear by the two pathways provided for in subrules 30(5) and (6) above. 

24․I therefore reject the Commissioner’s submission that the appeal was incompetent and the filing of the Notice of Appeal should not have been accepted by the Registry.

The alternative basis for dismissal of the appeal

25․The alternative order sought by the respondent was similarly that the appellant had not complied with r 30(4) of the Rules. As stated, that is an irregularity and is in the process of being addressed by the appellant seeking leave for its director to appear on the appeal. It does not provide a basis to dismiss the entire appeal proceeding.

26․To date, interim orders made by the Registrar or her delegate appear to have been granting leave to the appellant to be represented by its director on a confined basis (matters preparatory to the appeal).  However, the question of whether such leave should be granted was not in terms before me, notwithstanding that it was obliquely argued. 

27․The appellant submitted that it was clear in the notice of appeal that an opportunity was sought to file evidence in relation to that question.  The respondent argued that such evidence should have been put before the Court on the application that was being heard, but having reflected on that submission, the only questions before the Court are whether to strike out the Notice of Appeal or dismiss the proceeding for incompetency. 

28․The confusion has arisen in part because of the broad way in which the relevant order was drafted and in part because the issue overlaps with what is likely to be the first issue dealt with on appeal, namely the decision by Mossop J to proceed to hear the case without the appellant having an advocate at the bar table, due to leave being previously refused for the director to represent the appellant.

29․Accepting that it would have been a most efficient course to deal with any application for leave for the director to appear on behalf of the appellant on the hearing of the appeal as part of the present application, given the course adopted by the Registrars of permitting confined representation leading up to the appeal, I have concerns about potentially denying the appellant procedural fairness in determining an issue that it was not squarely on notice would be before the Court at the hearing of the respondent’s strike out application.

30․Otherwise, the respondent’s application did not take issue with the grounds of appeal themselves, which on their face are difficult to understand. 

31․The result is that the objection to competency fails and there is presently no other basis to dismiss the proceeding.  Even if I had determined not to grant leave to the appellant to appear by its director, I would have given the appellant an opportunity to engage legal representation, rather than dismiss the proceeding.

32․This outcome does not prevent the parties having the issue of representation on the appeal addressed prior to any substantive appeal hearing, as long as proper notice is given to the appellant prior to that question being agitated.  Alternatively, given the succinct reasons in Bennelong (No 5), the lack of any apparent complexity on the appeal, the confined scope of the evidence to be traversed on appeal, and the costs and delay that will be occasioned by further interlocutory applications being addressed, the respondent may decide not to contest the question of the appellant’s representation on appeal, thereby avoiding further interlocutory skirmishes.  If that is the case, the parties should instead proceed to prepare the appeal for hearing, with a view to reaching a final determination of the real issues in dispute in the most efficient and just manner achievable.

Costs

33․It is plain from the nature of the application just resolved that the appellant does not have any legal representation.  Thus, it is unnecessary to make any orders dealing with the legal costs of the application.

Orders

34․The Court makes the following orders:

(1)The application filed 18 September 2024 is dismissed.

I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice McWilliam.

Associate:

Date: