Bennelong Medical Pty Ltd v Commissioner of Taxation (No 2)

In the Supreme Court of the Australian Capital Territory, Bennelong Medical Pty Ltd, the appellant, sought to appeal an order made by Mossop J on 11 April 2023. The Commissioner of Taxation, the respondent, filed an application to strike out the notice of appeal as incompetent. The appellant appeared self-represented for the application.

The court was required to determine whether the notice of appeal was incompetent and, if so, whether it should be struck out. A key issue was whether the grounds of appeal as stated in the notice complied with the Court Procedures Rules 2006 (ACT), specifically regarding the requirement to briefly and specifically state the grounds relied upon and to provide a one-paragraph summary. The court also considered whether the appeal was competent, given that the decision under appeal might be interlocutory and thus require leave to appeal.

The court reasoned that the respondent's application to strike out the appeal as incompetent, based on alleged non-compliance with procedural rules, was misconceived as competency relates to the court's jurisdiction, not drafting deficiencies. However, the court found that the stated ground of appeal, which merely asserted a difference between a Registrar's decision and Mossop J's decision, did not constitute a valid ground of appeal and failed to comply with the rules requiring specific grounds. While the court possessed inherent jurisdiction to strike out a notice of appeal that prejudices, embarrasses, or delays a fair trial, it granted the appellant leave to file an amended notice of appeal, as the issue of non-compliance with the rules was not fully foreshadowed. The court also noted that the decision under appeal appeared to be interlocutory, meaning leave to appeal would likely be required, and allowed the respondent to amend its application to raise this issue.

The court ordered that the notice of appeal be struck out, but granted the appellant leave to file an amended notice of appeal by 28 June 2023. The respondent was granted leave to file an amended application and supporting affidavit evidence by 23 June 2023, and the appellant was to file replying affidavit evidence by 30 June 2023. The amended application was to be listed for a hearing of approximately two hours. The respondent was ordered to pay the appellant's costs of the application.