Bennelong Medical Pty Ltd v Commissioner of Taxation (No 2)
[2023] ACTCA 28
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Bennelong Medical Pty Ltd v Commissioner of Taxation (No 2) |
Citation: | [2023] ACTCA 28 |
Hearing Date: | 20 June 2023 |
DecisionDate: | 20 June 2023 |
Before: | Curtin AJ |
Decision: | 1. The notice of appeal is struck out. 2. The appellant has leave to file an amended notice of appeal which complies with the rules on or before close of business on 28 June 2023. 3. The respondent is granted leave to file and serve an amended application in proceeding together with any affidavit evidence in support on or before close of business on 23 June 2023. 4. The appellant is to file and serve any affidavit evidence in reply on or before close of business on 30 June 2023. 5. I direct that the amended application be listed to a date to be fixed by the Registrar with an estimate of 2 hours. 6. I direct the parties to email the Registrar by no later than close of business on 28 June 2023 with their mutually available dates for the hearing of the amended application. 7. The respondent should pay the appellant’s costs of today if any. |
Catchwords: | APPEAL – APPLICATION IN PROCEEDING – Appeal against order made refusing appellant leave to represent company under r 30(4) of the Court Procedures Rules 2006 (ACT) – Application by respondent that appeal be struck out as incompetent – Self-represented appellant – Whether appeal is incompetent – Application dismissed with costs |
Legislation Cited: | Court Procedures Rules 2006 (ACT), rr 425, 5403, 5472 |
Cases Cited: | John Patrick Davey v Valerie Herbst (No 2) [2012] ACTCA 19 |
Parties: | Bennelong Medical Pty Ltd (Appellant) Commissioner of Taxation (Respondent) |
Representation: | Counsel Self-represented (Appellant) V Tavolaro (Respondent) |
| Solicitors Self-represented (Appellant) Australian Government Solicitor (Respondent) | |
File Number: | CA 14 of 2023 |
Decision under appeal: | Court/Tribunal: Supreme Court Before: Mossop J Date of Decision: 11 April 2023 Case Title: Bennelong Medical Pty Ltd v Commissioner of Taxation Citation: [2023] ACTSC 74 |
CURTIN AJ:
EX TEMPORE (REVISED)
This is an Application in Proceedings filed on 5 June 2023 by the respondent to an appeal commenced by Bennelong Medical Pty Limited.
The Notice of Appeal was filed on 27 April 2023 and seeks to appeal the orders of Mossop J of 11 April 2023 made in Bennelong Medical Pty Limited v Commissioner of Taxation [2023] ACTSC 74.
The only ground of appeal specified in the Notice of Appeal says:
Registrar Gatehouse decision of 24 March 2023 is contrary to Mossop J decision of 11 April 2023.
The Application in Proceedings sought the following order:
The notice of appeal filed on 27 April 2023 (the Appeal) be struck out as incompetent pursuant to rule 5472 of the Court Procedure Rules 2006 (the Rules) and/or as noncompliant with the Rules.
The basis of the application was the appellant's purported non-compliance with rr 5403(1)(f) and 5403(2) of the Court Procedure Rules 2006 (ACT) (the Rules).
That application, as presently framed, must fail because a question of competency under r 5472 of the Rules is not concerned with non-compliance with the Rules or drafting deficiencies, but rather is concerned with the jurisdiction of the Court to entertain the appeal: see John Patrick Davey v Valerie Herbst (No 2) [2012] ACTCA 19 at [99]-[100] and Ryan v Bunnings Group Limited [2021] ACTCA 43 at [114].
However, the bringing of the application has brought to light two other issues of significance in this appeal. The first is that, in my view, the appellant has not complied with r 5403(1)(f) and subrule (2).
Rule 5403(1)(f) requires a Notice of Appeal to:
Briefly, but specifically, state the grounds relied on in support of the appeal, including, in particular, any grounds on which it is claimed that there is an error of law in the order.
Subrule 5403(2) requires the Notice of Appeal to be accompanied by a one paragraph summary of the grounds relied on in support of the appeal.
The sole ground in the Notice of Appeal, which I have quoted above, does not, in my view, comply with either of those two Rules.
All that the ground I have quoted does is to state a purported fact that the Registrar's decision, which went on appeal to Mossop J and was the subject of his Honour's decision now appealed from, was different. That difference could not possibly amount to a ground of appeal.
Justice Mossop heard an appeal from the decision of the Registrar. His Honour dismissed the appeal. Whilst his Honour may have come to the view his Honour did by a different route to the Registrar, or even on different grounds, that does not amount to any error having been committed by Mossop J.
The Court has power to strike out pleadings which may tend to prejudice, embarrass or delay the fair trial of a proceeding, or which are frivolous or unnecessary under r 425.
However, a Notice of Appeal is not a pleading: see the definition of pleading in the Dictionary in the Rules.
Be that as it may, the Court has inherent jurisdiction to protect the processes of the Court, and accordingly, has jurisdiction to strike out the Notice of Appeal where its contents tend to prejudice, embarrass or delay the fair trial of the appeal or which are frivolous or unnecessary.
For the reasons I have set out above, the current contents of the Notice of Appeal fall within that description, and accordingly, should be struck out. However, since Dr Quach, who was given leave by me to appear for the appellant for the limited purpose of this application, was not fairly put on notice of the matters I have just outlined, he should be given the opportunity to redraft the Notice of Appeal.
The other issue that arose is whether the appeal is competent because the decision appealed from may be an interlocutory decision and not a final decision. The respondent did not include in its application that a ground for seeking that the Notice of Appeal be struck out was because the decision appealed from was interlocutory (and therefore the appellant required leave to appeal and had no absolute right to appeal).
It appears that, prima facie, but without the benefit of argument, Mossop J's decision may well have been interlocutory, and therefore leave to appeal is required. Therefore, that issue should be determined, and the respondent has indicated that, if given the opportunity, it would seek leave to amend its application in proceeding to seek that this appeal be struck out as incompetent because leave to appeal is required and has not been sought or granted.
The respondent should pay the appellant's costs of today, if any. The application, as presently framed, was bound to fail because of the two decisions to which I have referred and it would appear that the respondent did not undertake any substantive research as to the grounds required to be established to obtain the relief it sought.
Accordingly, today's costs have been incurred unnecessarily and that is the fault of the respondent.
Orders
Accordingly, I make the following orders.
1. The Notice of Appeal is struck out.
2. The appellant has leave to file an amended Notice of Appeal which complies with the Rules on or before close of business on 28 June 2023.
3. The respondent is granted leave to file and serve an amended application in proceeding together with any affidavit evidence in support on or before close of business on 23 June 2023.
4. The appellant is to file and serve any affidavit evidence in reply on or before close of business on 30 June 2023.
5. I direct that the amended application be listed to a date to be fixed by the Registrar with an estimate of 2 hours.
6. I direct the parties to email the Registrar by no later than close of business on 28 June 2023 with their mutually available dates for the hearing of the amended application.
7. The respondent should pay the appellant’s costs of today if any.
| I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Curtin. Associate: Date: |
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