Bennelong Medical Pty Ltd v Commissioner of Taxation (No
[2024] ACTCA 21
•11 July 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Bennelong Medical Pty Ltd v Commissioner of Taxation (No 6) |
Citation: | [2024] ACTCA 21 |
Hearing Date: | 11 July 2024 |
Decision Date: | 11 July 2024 |
Before: | Elkaim AJ |
Decision: | (1) The application for leave to appeal filed on 24 June 2024 is dismissed. (2) The applicant is to pay the respondent’s costs of the application. |
Catchwords: | APPEAL – APPLICATION FOR LEAVE TO APPEAL – Whether appeal can be made from an interlocutory decision when substantive proceedings have been dismissed – whether an appeal from an interlocutory decision separate from an appeal of the substantive matter is pointless |
Legislation Cited: | Court Procedures Rules 2006 (ACT) pt 4 5, div 5.4, rr 30, 1505 |
Cases Cited: | Annetts v McCann (1990) 170 CLR 596 |
Parties: | Bennelong Medical Pty Ltd (Appellant) Commissioner of Taxation (Respondent) |
Representation: | Counsel Self-represented ( Appellant) Jason Moffett ( Respondent) |
| Solicitors Self-represented ( Appellant) Australian Government Solicitor ( Respondent) | |
File Number: | ACTCA 18 of 2024 |
ELKAIM AJ:
I am sitting in this matter as a single judge of appeal pursuant to s 37J of the Supreme Court Act 1933 (ACT).
On 18 June 2024, Loukas-Karlsson J dismissed an application made by Dr Michael Quach who was seeking leave to represent Bennelong Medical Pty Ltd and continue an action on its behalf (Bennelong Medical Pty Ltd v Commissioner of Taxation [2023] ACTSC 74).
Bennelong Medical Pty Ltd (Bennelong) was the plaintiff in a suit brought against the Commissioner of Taxation (the Commissioner) but was not represented by a lawyer. This prompted the application made by Dr Quach. The application was made pursuant to r 30(4) of the Court Procedures Rules 2006 (ACT) (the Rules).
Following the dismissal of his application under r 30(4), Dr Quach filed an application in the ACT Court of Appeal on 24 June 2024, seeking leave to appeal from the above decision of Loukas-Karlsson J.
There are a number of decisions of the ACT Supreme Court dealing with the dispute between Bennelong and the Commissioner. I do not think I need to refer to those decisions. This is because there is a fundamental problem with the application, which I think must lead to its termination.
After Loukas-Karlsson J refused leave for Dr Quach to represent Bennelong, the action between Bennelong and the Commissioner came on for hearing before Mossop J on 21 June 2024 (Bennelong Medical Pty Ltd v Commissioner of Taxation (No 5) [2024] ACTSC 194).
At the commencement of the hearing today, Dr Quach handed up written submissions concerning the jurisdiction of this Court. The Commissioner’s objections to jurisdiction were disposed of by Mossop J. The question needs no further consideration.
Justice Mossop, on 21 June 2024, was faced with the circumstance that the plaintiff (Bennelong) was not represented by a lawyer or by any person that had been given leave to represent the company under r 30(4) of the Rules.
Because the effect of the orders made by Loukas-Karlsson J was that there was no appearance on behalf of Bennelong when the trial started, Mossop J considered the application of r 1505(2). This rule states:
If the plaintiff does not appear when the trial starts, the court may dismiss the plaintiff’s originating process and the defendant may call evidence to establish an entitlement to judgment under a counterclaim against the plaintiff, in the way the court directs.
Justice Mossop recognised that r 1505(2) contained a discretionary power. He considered the various factors which he thought relevant to the exercise of the discretion, and having done so, came to the conclusion at [27] that “it is clearly appropriate to dismiss the proceedings under r 1505(2)”.
The result of Mossop J’s decision is that the proceedings came to an end. These being the same proceedings in which Dr Quach brought the application heard by Loukas-Karlsson J, there are no longer existing proceedings in which Dr Quach can pursue his application for leave to appeal.
Dr Quach’s response to this point was that the issue was one of statutory interpretation. He said that unless the rules relating to leave to appeal specifically stated that there could not be an appeal of an interlocutory decision if the whole of the proceedings had otherwise been dismissed, then an appeal against the interlocutory decision was still available. He referred me to the decision of the High Court in Annetts v McCann (1990) 170 CLR 596 (Annetts), and specifically to 598:
It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment: Commissioner of Police v. Tanos; Twist v. Randwick Municipal Council; Heatley v. Tasmanian Racing and Gaming Commission; J. v. Lieschke; Haoucher v. Minister for Immigration and Ethnic Affairs. In Tanos, Dixon C.J. and Webb J. said that an intention on the part of the legislature to exclude the rules of natural justice was not to be assumed nor spelled out from "indirect references, uncertain inferences or equivocal considerations". Nor is such an intention to be inferred from the presence in the statute of rights which are commensurate with some of the rules of natural justice: Baba v. Parole Board of New South Wales. In Kioa v. West, Mason J. said that the law in relation to administrative decisions "has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention." In Haoucher, Deane J. said that the law seemed to him "to be moving towards a conceptually more satisfying position where common law requirements of procedural fairness will, in the absence of a clear contrary legislative intent, be recognised as applying generally to governmental executive decision-making".
(Citations omitted.)
I take Dr Quach’s reliance on Annetts to be to the effect that, as a public official, I should not dismiss his application for leave to appeal unless it is “excluded by plain words of necessary intendment”.
There is no doubt that the decision of Loukas-Karlsson J was an interlocutory decision. This meant that leave to appeal from the decision was necessary. The rules concerning leave to appeal are to be found in pt 5.4 of the Rules, and in particular in div 5.4.2. This division sets out the requirements for an application for leave to appeal. It does not state that an application for leave to appeal cannot be made where the substantive proceedings have been dismissed. This is Dr Quach’s point.
However, in considering his point it is necessary to go back to the fundamental reason behind the necessity to obtain leave to appeal from an interlocutory decision. The administration of justice requires that cases be heard efficiently and expeditiously and are not fragmented. If leave to appeal interlocutory decisions was not required, the conduct of a case could be indefinitely extended if appeals could be heard at any point in a case’s path to final hearing.
Further, the entire point of an appeal in respect of an interlocutory order is to enable the final hearing to proceed on a correct basis. If the interlocutory decision was wrong, then it could infect the final hearing. If, however, the final hearing has been disposed of, there is no point in an appeal from an interlocutory decision.
This is not to say that errors in interlocutory decisions cannot be considered on an appeal of the final decision. An appeal of a final decision will frequently include, as a ground of appeal, an allegation that an interlocutory decision was wrong and affected the outcome of the matter. But, to repeat, the ground would be part of the grounds of appeal to the dismissal of the substantive proceedings.
Dr Quach, in discussion, said that he had lodged an appeal against the decision of Mossop J. If correct, there would be no reason, provided he obtained leave to represent the company, or Bennelong had a lawyer, for the grounds of appeal to not include errors asserted to have been made by Loukas-Karlsson J. This in my view would be the correct approach to take in the light of the substantive proceedings having been dismissed.
I would add that the proceedings dismissed by Mossop J can potentially be revived. Bennelong, if it had a lawyer, could make an application under r 1505(5) of the Rules, which states:
On application made not later than 7 days after the day judgment is entered because of this rule, the court may amend or set aside the judgment.
The court file in respect of the proceedings disposed of by Mossop J on 21 June 2024 discloses that judgment was entered on 9 July 2024. This means that the seven days referred to in r 1505(5) have not yet elapsed.
Dr Quach, personally, could not utilise r 1505(5) because he does not have leave to represent Bennelong, that leave having been refused by Loukas-Karlsson J, whose orders still stand.
The lodging of the appeal against the orders of Mossop J made on 21 June 2024, as already discussed, is probably the path that would be most likely to achieve the results sought by Dr Quach. Presumably, the appeal has been lodged by Bennelong represented by a lawyer, or, concurrently with the appeal, Dr Quach has made a fresh application to represent the company.
Dr Quach submitted that the decision of Neville J in QE Family Pty Ltd v Peter Warren Automative (t/as Mercedes-Benz Macarthur) [2024] FedCFamC2G 172 was binding on this Court. I think the submission is misplaced. Justice Neville made a decision in a matter which he was hearing. He did not purport, and nor would it have been effective, to extend his ruling to all proceedings in which Dr Quach was endeavouring to represent a company.
In the meantime, the short point is that until, and if, the decision of Mossop J on 21 June 2024 is set aside, the current application must fail. I have made this decision for these reasons:
(a)I do not think an application for leave to appeal from an interlocutory decision, separate from an appeal in respect of the substantive proceedings, can be made in proceedings which have been dismissed.
(b)This is not to say that errors in interlocutory decisions cannot continue to be asserted, but rather that they are properly pursued as part of an appeal from the result of the substantive proceedings and not as a separate appeal relating to proceedings which, in effect, no longer exist. As mentioned above, Dr Quach has already commenced an appeal from the decision of Mossop J.
(c)If I am wrong about a technical approach which says there cannot be a confined appeal from an interlocutory decision in proceedings which have been dismissed, then I would still reach the same conclusion because there is simply no point in having an appeal from an interlocutory decision when the substantive proceedings have been dismissed. I emphasise here that the point of deciding an interlocutory matter during the life of a proceeding is to enable the substantive matter to proceed on the correct footing. This point might be described as a conclusion that there is no triable issue in respect of which leave to appeal might be granted.
Orders
I make the following orders:
(1)The application for leave to appeal filed on 24 June 2024 is dismissed.
(2)The applicant is to pay the respondent’s costs of the application.
| I certify that the preceding twenty-five [25] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Elkaim. Associate: Date: 29 July 2024 |
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