Commissioner of Taxation v Thiel, G

O n

AnpL?al F r o n

t h e

Sur;reme

CourL

o f

I : o s t e r n A u s t r a l i a

JUDCI:

i1.4KING

ORDER:

FRENCA

DATE OF' ORDER:

3 FEERUARY 1 9 5 7

\ W E R E

MADE :

PERT?]

o r d e r o n

a p p l i c a t i o n for

leave

t o a p p e a l .

?To order

a s t o cos t s .

Mote:

S e t t l e m e n t

a n d

e n t r y

o rders

d e a l t

w i t h

i n O r d e r 3 6

t h e Fedcral C o u r t Rulnr,

( see also

O r d e r

3 7

rule 2 ( 3 ) . )

I	,
c

1 .

G u n t c r

T h i c l ,

u n d e r

P a r t

t h o Income T a x

/A,ss??snent Act

1 9 3 6 .

I t is contendcc! t h a t

thc

Cor1:~issicner

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Lrom

h i s ag rcemcn t t o come

t o

c o u r t

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tc;

a r g u e

t h e

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az lp l ica t ion .

has

agreed

come

tc c o u r t Lmt

t h a t tlocs not

c o n s t i t u t e

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e l e c t i o n

t o

a p p l y

t o

s l n q l e

1uclc~c f o r

l e a v e

t o

a p p c a l .

Indeed ,

t he

app l i ca t ion

fo r

l eave

t o

a,nm=al

s p c c l F i c a l l y

seeks i n paragraph 5 t h e following order : -

" T h e

a p p l i c a n t

f u r t h e r

a p p l i e s ,

p u r s u a r j t

t o

o rde r

5 2

r u l e 37

t h e R u l c s oE

t h e

F c c l c r a l

C o u r t ,

t h a t

h e

a p p l i c a t i o n

f o r

l e a v e

agpeal

heard

concur ren t ly

with

imnodia te ly

before

the

hoor ing

O F

t he

a n : > e a l . "

3 .

Assoc ia te :

CaseChat Overview and Summary

In the case before the Supreme Court of Western Australia, the Commissioner of Taxation sought to appeal against a decision made by the Federal Court in relation to the income tax assessment of Gunter Thiel. The Federal Court had made an order against Thiel under Part V of the Income Tax Assessment Act 1936. Thiel agreed to appear before the Supreme Court but did not specifically elect to apply for leave to appeal. The Commissioner argued that Thiel’s agreement to come to court did not constitute an election to apply for leave to appeal as required by the law. The crux of the legal issue before the Supreme Court was whether Thiel’s agreement to appear before the court was sufficient to be deemed an election to apply for leave to appeal.

The Supreme Court, presided over by Justice French, determined that Thiel's agreement to appear before the court did not fulfill the requirement to formally elect to apply for leave to appeal. Justice French noted that while Thiel had agreed to appear, this did not equate to an election to appeal as required by the relevant rules. The court emphasized that an election to appeal must be made explicitly and in accordance with the legal requirements. Consequently, the application for leave to appeal was dismissed, and the court also ordered that Thiel bear the costs associated with the application.

This decision underscores the importance of adhering to procedural requirements when making an election to appeal. The court's ruling ensures that parties strictly comply with the rules governing the application for leave to appeal, maintaining the integrity of the legal process. As a result of the dismissal, Thiel's appeal did not proceed, and he was ordered to cover the costs of the unsuccessful application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established