Caporale v Deputy Commissioner of Taxation

[2013] FCA 242

FEDERAL COURT OF AUSTRALIA

Caporale v Deputy Commissioner of Taxation [2013] FCA 242

Citation:		Caporale v Deputy Commissioner of Taxation [2013] FCA 242
Parties:		ROSA CAPORALE v DEPUTY COMMISSIONER OF TAXATION
File number:		NSD 2229 of 2012
Judge:		ROBERTSON J
Date of judgment:		18 March 2013
Catchwords:		PRACTICE AND PROCEDURE - application to Federal Court for leave to appeal from interlocutory steps in Federal Magistrates Court – later final judgment of Federal Magistrates Court – appeal to Federal Court from that final judgment – no utility in application for leave to appeal – leave to appeal refused
Cases cited:		Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478
Date of hearing:	18 March 2013
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	11
Counsel for the Applicant:	Ms R Caporale appeared in person
Counsel for the Respondent:	Mr AJ O'Brien
Solicitor for the Respondent:	ATO Legal Services Branch

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 2229 of 2012

BETWEEN:	ROSA CAPORALE Applicant
AND:	DEPUTY COMMISSIONER OF TAXATION Respondent

JUDGE:	ROBERTSON J
DATE OF ORDER:	18 MARCH 2013
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal is refused.

2.Costs be costs in matter NSD 188/2013.

Note:Entry of orders is dealt with in Order 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 2229 of 2012

BETWEEN:	ROSA CAPORALE Applicant
AND:	DEPUTY COMMISSIONER OF TAXATION Respondent

JUDGE:	ROBERTSON J
DATE:	18 MARCH 2013
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This matter takes the form of an application for leave to appeal, filed on 21 December 2012, from the interlocutory judgments given or decisions made or steps taken on 7 November 2012 and 10 December 2012 in the Federal Magistrates Court in proceedings SYG 1024/2012.

2. The grounds of the application for leave to appeal are that his Honour erred as follows:

   1. … in refusing to permit the applicant to amend the notice of grounds of opposition.

   2. … in refusing to permit the applicant to file further evidence in support of her opposition to the creditors petition.

   3. … in refusing the applicant leave to issue a subpoena for production to the respondent.

   4. … [in failing] to have proper regard to the prejudice to the applicant in refusing to permit the applicant to amend the notice of grounds of opposition.

   5. … [in failing] to have proper regard to the prejudice to the applicant in refusing to permit the applicant to file further evidence.

   6. … [in failing] to have proper regard to the prejudice to the applicant in refusing to grant leave to the applicant to issue a subpoena for production to the respondent.

3. However, on 4 February 2013 the Federal Magistrate gave a final judgment and made an order that the estate of Rosa Caporale be sequestrated.

4. Ms Caporale has filed a notice of appeal from that order in NSD 188/2013.

5. At a directions hearing on 28 February 2013, I made orders with a view to resolving the status of NSD 2229/2012, albeit no formal interlocutory application has been filed on behalf of the respondent, Deputy Commissioner. 

6. Ms Caporale accepted that each of the matters she seeks to raise in the application for leave to appeal is within the notice of appeal in NSD 188/2013.  This conforms with my reading of the notice of appeal, that is, of the many grounds, some 175, at least three of them deal with each of the subject matters in the application for leave to appeal.

7. Ms Caporale did refer in her submissions to the question whether the Federal Magistrate had formally ruled on her application to adjourn, but the same conclusion applies, that is, that matter is within the notice of appeal. I also note the submission of Mr O’Brien of counsel, who appeared for the respondent Commissioner, that the Federal Magistrate gave reasons which touched on that matter in his Honour’s final judgment of 4 February 2013, to which I have referred, at [41].

8. Thus, the grounds of the application for leave to appeal are taken up in the notice of appeal from the final order. 

9. This is consistent with and confirms in practice the effect of the High Court decision in Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 especially at [6], to which I drew the parties’ attention on the last occasion, and shows that the application for leave to appeal, if it ever had any utility, no longer has any utility.

10. For these reasons, in NSD 2229/2012 the application for leave to appeal is refused.

11. As to costs, the respondent Commissioner accepted that the costs should be costs in NSD 188/2013 and follow the outcome of that matter. I agree and I so order. 

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.

Associate:

Dated:        18 March 2013