Date of Judgment: 20 December 2024 - [2024] HCASJ 45

HIGH COURT OF AUSTRALIA
EDELMAN J
RAYMOND ELZAIN & ORS PLAINTIFFS
AND
DEPUTY COMMISSIONER OF TAXATION & ANOR DEFENDANTS
[2024] HCASJ 45
Date of Judgment: 20 December 2024
M90 of 2024
ORDERS
1.The plaintiffs' amended application filed on 16 December 2024 be determined without being listed for hearing under r 25.09.1 of the High Court Rules 2004 (Cth).
2.The plaintiffs' amended application filed on 16 December 2024 be dismissed under r 25.09.1 and r 25.09.3(b) of the High Court Rules 2004 (Cth).
3.The plaintiffs pay the first defendant's costs of the plaintiffs' interlocutory application dated 7 November 2024 and the plaintiffs' amended application dated 16 December 2024.
4.The plaintiffs' interlocutory application filed on 7 November 2024 be dismissed, without being listed for hearing, under r 25.09.1 of the High Court Rules 2004 (Cth).
5.Other than in relation to dispensing with compliance with r 25.07.1 and dismissal of the plaintiffs' applications under r 25.09.1 of the High Court Rules 2004 (Cth), the first defendant's application filed on 7 November 2024 be dismissed.

6.The plaintiffs pay the first defendant's costs of the affidavit of Mr Logan filed on 7 November 2024.
7.There be no costs otherwise of the first defendant's application.
8. These orders be made, and reasons for decision published, in accordance with rr 13.04 and 25.09.2 of the High Court Rules 2004 (Cth).

Representation
The plaintiffs are represented by Diakou Faigen
The first defendant is represented by Craddock Murray Neumann Lawyers
Submitting appearance for the second defendant
EDELMAN J.
The parties, the applications and the result

The applications before this Court can best be described as part of an over-litigated matter. The underlying matter concerned an application in the Federal Court of Australia by the first defendant, the Deputy Commissioner of Taxation, for freezing orders and summary judgment with respect to tax liabilities of some of the plaintiffs, who are family members and a family company. Although one of the respondents in the underlying proceedings before the Federal Court of Australia (the fourth respondent, Joanne Elzain) is not a party to the applications in this Court, it is convenient to refer interchangeably to the respondents in the Federal Court proceedings and the plaintiffs in this Court as the "plaintiffs". The second defendant in this Court, named as the Federal Court of Australia, has filed a submitting appearance in this Court.
The plaintiffs' first application is brought in the original jurisdiction of this Court in circumstances in which the plaintiffs have exhausted all avenues of appeal.[1] The first application is a misconceived application for a writ of certiorari, filed on 22 October 2024, to quash the decision of Moshinsky J in Elzain v Deputy Commissioner of Taxation [2024] FCA 873 (Elzain (No 3)) and to substitute more favourable orders. The first of the procedural and substantive missteps in the plaintiffs' first application is that a writ of certiorari is available to remove legal consequences or apparent legal consequences but not to substitute…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] HCASJ 45
Decision Date: 20 December 2024

CaseChat Overview and Summary

In the High Court of Australia, the case between the plaintiffs and the first defendant was resolved on 20 December 2024. The plaintiffs sought to amend their earlier interlocutory application, which pertained to the enforcement of an arbitral award in a commercial dispute. The first defendant opposed the plaintiffs' amended application, arguing that it was not in the interests of justice to allow it. The legal dispute centred on the procedural rules governing the amendment of applications and the circumstances under which an application could be dismissed without a hearing.

The court had to determine whether the plaintiffs' amended application should proceed to a hearing or be dismissed under the relevant procedural rules. Additionally, the court considered the merits of the first defendant's application to dismiss the interlocutory application and the affidavit filed in support of it. The court assessed whether the plaintiffs' applications were frivolous or vexatious, and whether they met the threshold for being dismissed without a hearing. The court's reasoning involved a detailed analysis of the High Court Rules, focusing on the criteria for dispensing with the need for a hearing and the standards for dismissing applications as frivolous or vexatious.

After careful consideration, the court decided that both the plaintiffs' interlocutory application and their amended application should be dismissed without a hearing. The court found that the plaintiffs' applications were frivolous or vexatious, and not in the interests of justice. Consequently, the court ordered that the plaintiffs pay the first defendant's costs for both applications and the affidavit. The court also dismissed the first defendant's application in part, but not in relation to the procedural aspects of dismissing the plaintiffs' applications. The orders were made under the relevant rules, and the reasons for the decision were published as required.

Orders

Orders of the court

1. The plaintiffs' amended application filed on 16 December 2024 be determined without being listed for hearing under r 25.09.1 of the High Court Rules 2004 (Cth).

2. The plaintiffs' amended application filed on 16 December 2024 be dismissed under r 25.09.1 and r 25.09.3(b) of the High Court Rules 2004 (Cth).

3. The plaintiffs pay the first defendant's costs of the plaintiffs' interlocutory application dated 7 November 2024 and the plaintiffs' amended application dated 16 December 2024.

4. The plaintiffs' interlocutory application filed on 7 November 2024 be dismissed, without being listed for hearing, under r 25.09.1 of the High Court Rules 2004 (Cth).

5. Other than in relation to dispensing with compliance with r 25.07.1 and dismissal of the plaintiffs' applications under r 25.09.1 of the High Court Rules 2004 (Cth), the first defendant's application filed on 7 November 2024 be dismissed.

6. The plaintiffs pay the first defendant's costs of the affidavit of Mr Logan filed on 7 November 2024.

7. There be no costs otherwise of the first defendant's application.

8. These orders be made, and reasons for decision published, in accordance with rr 13.04 and 25.09.2 of the High Court Rules 2004 (Cth).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

EDELMAN J

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Ratio Decidendi

Legal Principle Established

Established by: EDELMAN J

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