Commissioner of Taxation v Janmor Nominees Pty Ltd

[1987] FCA 805

AND: J W M O F , NOMINEES FTY. LTD.

i A s Trust .ee ctf t h e J.

Redman Fami ly Trus t )

Respondent

R e s p n d e n t

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CORAM :	Jenkinson J.
FLACE :	Melbourne
DATE :	6 March, 1387

REASONS FOR JUDGMENT

Motion by a respondent for a n o r d e r that the h e a r i n g of

a n a p p s a l be postponed t o a a i t k i n g a of the F u l l C o u r t x h i c h

s u c c e e d s t h e s i t t i n q s a t wh ich an app l i ca t ion for l e a v e t o b r i n g

that appea l will be heard .

&. 7

The proceedings relate to the disallowance by the

appli'zant i;f the respondent's objection against an assessment of the respondent' S in-zome tax. At the respclndsnt ' S request the objection xas referred to a Eoard of R2view xhich qave its decision 1311 t.he rsference in August 1385. In Sept3mbzr 1335 the appellant appealed f t - ~ m the Board's decision to the Supreme Court

of '/ictGria, pursuant to 3 . 1 ' 3 6 i l j of ths Income Tax Assessment Act

Taxation Boards of Review rTransfsu isf Jurisdiction) Act 1326. In	1336. c-Jn 1 July 133G that sectian xas repealed by 3.84 of the the appeal, w h i c h xas dismissed. Sub-section 196i5) of the Income
Tax Assessment Act 193b had provided that the Commissioner of
Taxation or the taxpayer might appeal against a decision of a Supreme Court on such an appeal as that for which sub-section
136(li provided:-

" (a) by leave of the Federal Court of

Xust,ralia, to that Court; or

i b ) by special leave of t.he High Court, to

that Court . "

Although transitional provisions were included in the Taxation Boards of Review (Transfer of Jursidiction) Act 1336, no provision has been made, in that or in any other Act, f o r appeal against a decision of a Supreme Court on an appeal which had been instituted

under sub-section 13€(1) and which was pending on 1 July 1386 and the decision of which was given after that date. In November 198€ the Commissioner filed and served notice of an appeal to this Court against the decision of the Supreme Court, and the proceeding thus instituted is numbered VG387 of 1986. The

Cornmissianer a130 filed on tl-s s a ~ e day and ssrved a notice of an

applicatiGn f o r leave t s appeal t o this Court against that

deci.sisn, and t,he prsceedinq t h u s instituted is numbered V G 3 3 6 of

1'337. A judge of t h i s Court having fixed each proceedinq for hearing at the March sittings of the F u l l Ccjurt in Melbourne, the respondent moves for an order that the hearing of the appeal, if appeal there is to be, be defsrred until a later sittings of the Full L'iiurt.

The parties are not in dispute that an appeal against the decision of the Supreme Ctzurt l i e s tcr this CGurt , if at all,

Gn17 by leave. The respondent. desires to defer incurring any

costs of contesting the a p p e a l until it has became clear -

that leave has been granted; and

zhether leave has been granted subject to any condition in favour of the respondent

concerning c o s t s ; and

ghat the terms of any such a condition

are.

The respondent hopes - and will submit on the hearing of the application f o r leave to appeal - that any grant of leave to appeal be conditioned on the appellant's paying the respondent's

costs .in this k u r t and consenting to leaving stand in any event

the order of the Supreme Court for costs in the respondent's

favour . The amount of income tax in issue is under $5,000 and, if

the respondent's hGpes a b o u t the imposition of a condition on the grant of leave are disappointsd, the respondent desires an opportunity then t o consider vhether to expend any costs in

contesting the appeal. Only if the hearing of ths appal were now postponed to a aittinqs later than the sittings at xhich the

application ~ L I L - laa=re i3 to he heard could	that zpportunity br
gained.

There was no suqgestilm by either party that an appeal

against t.he decisiizn of the Supreme Court might lie nithout leave.

If leave is requirsd, the filing of the notice of appeal has n o t achiexd the institution of an a p p e a l , xhich must follow the grant

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of leave. If leave is granted, only by the drastic abridgment of

times precribed by several of the court's rules could the

appellant Le enabled to have a hearing at the March sittings of an appeal which cannot be instituted until leave has been grantsd.

For example, the Federal Court Rules require that an appeal

brought by leave of the Caurt h instituted by the filing of a notics of appeal, a copy of xhich must be sec-zed on the

before the day appointed for t.he commencement of the sittinqs, at

a sittings appointed to Le held after the expiration of 6 weeks

from the institution of the appeal : see 0.52. rr. 12il),

13(3)(b), 16(2), 2 3 ( 3 ) and 2 9 ( 4 ) . Unless it were concluded that

an appeal lies without leave, the notice of a p p a l filed by the appellant in November 1386 will be wholly ineffective to institute - or to constitute part of the Court's process in - an appeal,

except to the extent that the Court may by the exercise of

dispensing powers give the notice efficacy.

It seems likely that some of the grounds by which an

It may well be that more extensive preparation would be required

for a hearing which might include the substantive appeal than f o r

a hearing unly of the applicaticm f o r leave. If so, greatsr costs

may be incurred tu the commencement of the first refresher in the

appeal than zould have been ciccupied bg the hsaring o n l y Gf the

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application. h d the longer t.hs hearing, the greater the costs.

The hearing of the respondent's motion concluded on 2 6

February 1337, when I reserved my decision. Thereafter 0.52 r.37 came to my notice. That rule provides:

"(1) The Court or a Judge may at any time make

such urders a5 appear just for expediting

of the appeal.

( 2 ) A party requiring leave to appeal may

move un notice before the Court f o r an order that the application for leave to appeal be heard concurrently with or immediately before the hearing of the

appeal, and fo r such consequential orders

as may be necessary."

The word "Court" is def ined ta mean in 0.52, unless the contrary

intention appears, " t h e Court exercisinq its appellate or related

jurisdiction under Fart I11 Division 2 of the Act." A

consideration of the usage of that word and the word ' l judge" in

0.52 has persuaded me that in 0.52 r.37 the word Court means "Full Court". I drew that provision to the attention of counsel and had the motion re-listed yes.terday for further argument. Yesterday

0.

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0 . 5 2 r.d, fcirmed part of the Federal Court Rules on

their first coming into operation in 1379. By Statutory Rule No.

258 of 1384 sub.-rule lilA) was inserted into Order 10 of those

Rules. That sub-rule provides:

"In any proceeding which is to be heard by a Full Court, vhether in the original or appellate jurisdiction, such directions as is thought proper with respect to the conduct of

the proceeding may be given by the Court

constituted by a single J u d q ~ . "

As I have indicated, there is, in my zlpinion, at present

of the Supreme Caurt lies as of right, in which case it will appear that on the filing in Ncrvernber 1386 of the notice of appeal

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an appeal proceeding was instituted. If the words "proceeding which is to be heard by a Full Court" in 0.10 r.l(lA) be

understood to comprehend an appea l , leave to bring which was being

sought but had not yet been granted, I doubt whether it would be

"proper" for the Court constituted by a single Judge to give

directions involving substantially the grant or denial of an order

of the kind contemplated by 0 . 5 2 r.37(2), except when circumstances made it very inconvenient to abstain from giving such directions. The intent uf the Rules, read as a whole, seems to me to be to reserve f o r the consideration of a Full Court, the

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I .

question whether an applicatian for leave to appeal and the	appeal
are to be heard concurrently or in immediate sequence.	In the

particular circumstances of this case, an order b y me such as the

respondent seeks - that the applicant's appeal against the

deci;;ion of the Supreme Court, clznsidsred as an appeal which xi11

hereafter lie if leave be grant.ed t o bring it - be not heard at

the March aittinqs of the Full C o u r t -,Jould preclude, f o r practical

purposes, the exercise by the Full Court af the power xhilch 0.52

r. 3 7 i 2 ) confers an the Full Court, to decide that the appeal should be heard concurrently with or immediately after the hearing of the

application for leave. If on the sther hand I refuse such an

ctrder, the Full CGurt may be thought to be embarrassed in its

consideration of any application the applicant may make to it for

exercise by it of the power reposed in it by 0.52 r.37(2), by the

circumstance that my order dismissing the respondent's motion has

been recently made. I am inclined to doubt vhether there are in

t.his case circumstances of sufficient gravity ta attract the

exercise of any power 0.10 r.lClA) may confer on me to preclude,

- ar to embarrass, as the case may prove to be, the exercise by the

Full Court of the power conferred on it by 0.52 r.37(2).

With the notice of application fo r leave to appeal and

the notice of appeal the applicant served on the respondent's solicitors a letter drawing attention to the repeal of s.136 and to the absence of transitional legislative provision for a case such as this. The letter included a st.atement of the applicant's opinion that leave to appeal would be required. The parties were advised on or about 25 November, 1386 that the view was taken by a judge of the Court that the application for leave should be heard

by a Full Court. At a tall-over c~f cases for hearing by a Full

Court xhich ;as h e l d on l 6 December, 1586 Woodward J. declined to

entertain an application fa r separa t ian of k h e hearin; of the application for leave from hearing of the projected appeal, I was

informed by counsel for the respondent. It is of course to be

expected that consideration rJf such an application would not be

undertaken at a call-over. The notices of the motions now before m e were not filed until 18 February, 19a7, and notice of a motion

by the respondent of the kind for which 0.52 r. 3 7 ( 2 ) provides has

still not been filed. Arrangements for the constitution of a Full Court, involving inter-state travel by judges, are made well in advance of the dat.e csf hearing. Alt.eration of those arrangements

nGw cannot be mails withnut expense and inconvenience. But the

constitution c& a Full Court for the hearing af an application f o r

leave tu appeal from this decision of the Supreme Court might have

been different, if it had been known that no hearing of the appeal

would be undertaken by that Full Court. When parties aware since November 1986 of the questions which are now being agitated before me have delayed until the latter part of February 1387 the proper

submission of those questions to the Court, consideration of the

Court's interest in the orderly and effective deployment of its

resources ought in my opinion to be allowed a substantial

influence on the resolution of those questions. Further, these

questions turn, from the parties' points of view, merely on

cansiderations af costs. The Full Court will have an ample

discretian in relation to costs. In all the circumstances, I

think that I should dismiss the respondent's motions and reserve

to the Full Court the costs thereof.

'3 .

The prackical result of my dismissing the motion will be

that the respondent must., if it is t o Le assured that it will be

able ta Farticipats in t h e hearing af the a p p s a l , incur now the costs of prepa r ing for such a Liearinq without kncswinq what orders

will be made with respect tc costs. Eut the making of this order

does n c t of courss imply any Frejudqment of the questions whether

leave to appeal should be granted, on what terns leave should be granted and when, if leave is granted, the appeal should be heard.

"hey are questions for the Full Court.

The forms employed by the respondent to bring the

substantive motion which I have been hearing before the Court should be explained, so that the formal orders I make may be understood. In the proceeding numbered VG386 of 1386, which is the proceeding f o r leave to appeal, the notice of the respondent's mot.ion reads a= follows:

"i.	That the Application far Leave tf> Appeal in this matter be 1ist.d fclr hearing by the Full Court on the 12th March, 1387.
&.	3	Such other orders, if any, as to the Court seems fit."

W e n that notice of motion was filed, and at all material times, the applicatian for leave to appeal to which it refers stood in the list of cases f o r hearing at t h e March sittings of the Full

Court, and 12 March 1987 was specified as the date f o r

commencement of that hearing. It would seem that the notice w a s

framed in those terms to make clear the respondent's desire to have the application for leave heard at those sittings. Since no

order of the kind specified	is required, the order disposinu of
that motion will be that:

1. The motion of which notice was filed on 18 February, 1983 be dismissed.

2. Each party's c o s t s of the said motion be

reserved to the Full Court by which the application for leave to appeal shall Le heard.

In the proceeding numbered VC387 of 1336, which xas

commenced by notice taf appeal, the notice of the respondent' S

motion reads : -

"l. That the Notice of Appeal in this matter be adjourned ttr the next call .-over after

the hearing of the Application f o r Leave to Appeal in matter number VG 386 of 1996.

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L.	Such other orders, if any, as to the
Court 5eems fit. 'I

If this proceeding be regarded, as I think that it should be

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regarded, as one of appeal without leave, the order should be one

of dismissal of the motion, because a respondent who comes to

hearing on 1 2 March 1387 prepared to argue an appeal brought by leave will Le as well prepared then to argue the appeal in the unlikely event that it is held to lie as of right. The orders will be in the same terms as those disposing of the motion in the other proceedinq, except hat he word "appeal" is to be substituted for the words "application for leave to appeal".

I c e r t i f y that this and the 9 preceding pages are a true copy of the Reasons

for Judgment herein of the Honourable Mr. Jus t i ce JENKINSON.

Dated: 6 March, 1987