Deputy Commissioner of Taxation v Cumins
[2007] FMCA 1841
•9 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DEPUTY COMMISSIONER OF TAXATION v CUMINS | [2007] FMCA 1841 |
| BANKRUPTCY – Appeal to Federal Court to set aside bankruptcy notice and against refusal to extend time for compliance with bankruptcy notice – creditor’s petition filed subsequent to appeal. PRACTICE & PROCEDURE – Proceedings commenced in Federal Court in respect of associated matter – whether proceedings to be transferred to Federal Court – factors to be considered – whether associated matter – whether same matter – whether inappropriate proceeding – whether question of general importance – importance of Commonwealth revenue – whether transfer in the interests of the administration of justice – consideration of prior decisions of other courts – policy underlying issuance of bankruptcy notices and public benefit. |
| Bankruptcy Act 1966 (Cth ), s.43(1)(a) Federal Court of Australia Act 1976 (Cth), ss.14, 24 and 25 Federal Magistrates Act 1999 (Cth), ss.19(1) & (3), 39(1), (2), (3)(a)-(d) & (6), 99(2) and 101 Federal Magistrates Court Rules 2001 (Cth), rr.8.02(4)(a)-(f) |
| ASIC v Forge (2003) 133 FCR 487; [2003] FCAFC 274 BGC Construction Pty Ltd v Genovese [2007] FMCA 1842 Cumins v Deputy Commissioner of Taxation [2006] FCA 1847 Cumins v Deputy Commissoner of Taxation for the Commonwealth of Australia [2007] WASCA 30 Fisher v Minister for Immigration and Citizenship [2007] FCA 591 Genovese v BGC Construction Pty Ltd [2006] FMCA 1507 Genovese v BGC Construction Pty Ltd (2007) 207 FLR 141; [2007] FMCA 71 Genovese v BGC Construction Pty Ltd [2007] FCA 923 King v Office National Limited and Others [2007] FMCA 1840 La Pegna v Deputy Commissioner of Taxation [2006] FMCA 1643 Re Athans, Ex parte Athans (1991) 29 FCR 302 Re Geard, Ex parte Reid (unreported, Federal Court of Australia, Sheppard J, 11 February 1994) |
Explanatory Memorandum, Federal Magistrates Bill, 1999, House of Representatives, The Parliament of the Commonwealth of Australia
Federal Magistrates Court of Australia, Annual Report 2005/2006
| Applicant: | DEPUTY COMMISSIONER OF TAXATION |
| Respondent: | BRIAN CUMINS |
| File number: | PEG 323 of 2006 |
| Judgment of: | Lucev FM |
| Hearing date: | 14 May 2007 |
| Date of last submission: | 14 May 2007 |
| Delivered at: | Perth |
| Delivered on: | 9 November 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr L A Tsaknis |
| Solicitors for the Applicant: | Australian Government Solicitor |
| Counsel for the Respondent: | Mr J A Thomson |
| Solicitors for the Respondent: | Q Legal |
ORDERS
That the Applicant’s Notice of Motion for transfer of these proceedings to the Federal Court of Australia be granted.
That proceedings in the Federal Magistrates Court in matter no. PEG 323 of 2006 be transferred to the Federal Court of Australia under section 39(1) of the Federal Magistrates Act 1999 (Cth).
That the Respondent pay the Applicant’s costs, which, if not agreed, are to be taxed under Order 62 of the Federal Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 323 of 2006
| DEPUTY COMMISSIONER OF TAXATION |
Applicant
And
| BRIAN CUMINS |
Respondent
REASONS FOR JUDGMENT
Facts
The relevant facts are essentially procedural and uncontroversial, with one minor exception.
A bankruptcy notice was issued by the Deputy Commissioner of Taxation[1] against Brian Cumins[2] on 17 March 2006.
[1] “Applicant”.
[2] “Respondent”.
Applications to extend time for compliance with the bankruptcy notice and to set aside the bankruptcy notice were unsuccessful.[3] The Respondent appealed the decision in Cumins to a Full Court of the Federal Court on 13 December 2006.[4] There has been no judgment in the Federal Court Appeal to date, the appeal having been heard by the Full Court of the Federal Court on 18 May 2007.
[3] Cumins v Deputy Commissioner of Taxation [2006] FCA 1847 (“Cumins”).
[4] “Federal Court Appeal”.
The bankruptcy notice was in the amount of $38,051,066.24, based on a judgment obtained by the Applicant against the Respondent in the Supreme Court of Western Australia on 15 June 2005.[5]
[5] “Supreme Court Judgment”. Respondent’s Affidavit of 15 March 2007, para. 3.
The Supreme Court Judgment was obtained without the Respondent opposing judgment or taking any steps in relation thereto: a course deliberately adopted by the Respondent.[6]
[6] Cumins at paras. 21-22 per Siopis J.
No stay of the Supreme Court Judgment was sought, and it was not until 23 August 2006 that an appeal was sought to be brought against the Supreme Court Judgment and filed with the Supreme Court of Western Australia Court of Appeal.[7] The application for extension of time in which to appeal the Supreme Court Judgment was dismissed on 8 February 2007.[8] On 12 February 2007 an application for review of Cumins Extension of Time was filed.[9] It would seem that that application has not yet been heard.
[7] Cumins at para. 24 per Siopis J; Respondent’s Affidavit of 15 March 2007, para. 10.
[8] Cumins v Deputy Commissoner of Taxation for the Commonwealth of Australia [2007] WASCA 30 (“Cumins Extension of Time”).
[9] Respondent’s Affidavit of 15 March 2007, para. 12.
In Cumins Extension of Time the Supreme Court of Western Australia Court of Appeal observed that the appellant (the Respondent) had not revealed an arguable case and that length of the delay in bringing the appeal was so substantial that the respondent’s (the Applicant’s) right to retain the benefit of the Supreme Court Judgment was not to be disturbed where other relevant factors did not point against the extension of time.[10]
[10] Cumins Extension of Time at paras. 27 and 29 per Pullin JA.
In Cumins the Federal Court observed that it considered the prospects of the Respondent successfully persuading the Supreme Court of Western Australia Court of Appeal to extend time within which to appeal, and to allow the appeal, “are very low.”[11]
[11] Cumins at para. 29 per Siopis J.
The foundation for the present proceedings, the creditor’s petition, was presented on 15 December 2006.
The Respondent filed a notice of opposition to the petition on 15 March 2007. The notice of opposition referred to the Federal Court Appeal but did not raise the issues presently to be determined by this Court.
On 30 March 2007 the Applicant filed a notice of motion in this Court seeking the transfer of the proceedings “pursuant to s.39 of the Federal Magistrates Act 1999 (Cth)”.[12]
[12] “FM Act”; Applicant’s notice of motion for orders transferring proceedings to the Federal Court pursuant to r.8.02 of the Federal Magistrates Court Rules 2001 (Cth) (“FMC Rules”), para. 1.
The Respondent filed a notice on 12 April 2007 opposing the transfer of these proceedings to the Federal Court. It did so on the grounds that:
a)under s.19(1) of the FM Act proceedings must not be instituted in this Court if an associated matter is pending in the Federal Court; and
b)on the proper construction and application of ss.19(1) and 39 of the FM Act the application and petition ought to be dismissed.[13]
[13] Respondent’s notice stating grounds of opposition to application, interim application or petition, filed 12 April 2007, paras. 1 and 2.
There appears to be a dispute as to whether the Respondent became aware of the Federal Court Appeal before or after the creditor’s petition was presented.[14] For present purposes the Court considers that dispute to be immaterial. What is material is that at the time the creditor’s petition was presented the Federal Court Appeal had been filed.
[14]Affidavit of Fayle, sworn 30 March 2007, paras. 4.15-4.16; Affidavit of Chong, sworn 9 May 2007, paras. 4-11.
Issues
The issues in these proceedings are:
a)should proceedings have been instituted in this Court while the Federal Court Appeal was pending; and
b)should the proceedings in this Court now be transferred to the Federal Court.
For the purposes of these proceedings, there is no issue that these proceedings and the Federal Court Appeal are “in respect of an associated matter” for the purposes of s.19(1) of the FM Act, and that the Federal Court Appeal is pending.[15]
[15]For the purposes of these proceedings the Applicant and Respondent did not dispute that these proceedings and the Federal Court appeal are “in respect of an associated matter” for the purposes of s.19(1) of the FM Act. As the matter was argued on that basis before this Court the contrary view was not put, but the contrary view, namely that an appeal in respect of a bankruptcy notice and fresh proceedings in respect to the issuance of a creditor’s petition are not in respect of an associated matter, may be correct: see BGC Construction Pty Ltd v Genovese [2007] FMCA 1842. As to when proceedings are “pending” see generally Fisher v Minister for Immigration and Citizenship [2007] FCA 591 (“Fisher”); Genovese v BGC Construction Pty Ltd (2007) 207 FLR 141; [2007] FMCA 71 (“Genovese 2007”); Genovese v BGC Construction Pty Ltd [2007] FCA 923, dismissing an appeal from Genovese 2007.
Should proceedings have been instituted in this Court while the Federal Court Appeal was pending
Section 19(1) of the FM Act mandates that proceedings must not be commenced in this Court if proceedings in an associated matter are pending before the Federal Court. Therefore, on the basis on which the parties argue this matter, these proceedings should not have been commenced in this Court.
Section 19(3) of the FM Act however provides that if proceedings are commenced in this Court in contravention of s.19(1) of the FM Act they may be transferred to the Federal Court, and it is to that issue that the Court turns.
Should the proceedings in this Court be transferred to the Federal Court
The notice of motion seeks the transfer of these proceedings under s.39 of the FM Act.
The making of an order to transfer proceedings from this Court to the Federal Court is discretionary.[16] Any order made is not one in respect of which an appeal lies.[17] There are mandatory factors for the Court to take into account under s.39(3)(a)-(d) of the FM Act, as follows:
(a)any Rules of Court made for the purposes of subsection 40(2); and
(b)whether proceedings in respect of an associated matter are pending in the Federal Court; and
(c)whether the resources of the Federal Magistrates Court are sufficient to hear and determine the proceeding; and
[16] FM Act, s.39(1) and (2).
[17] FM Act, s.39(6).
(d) the interests of the administration of justice.
Rule 8.02(4)(a)-(f) of the FMC Rules provides for other factors to be considered as follows:
(a)whether the proceeding is likely to involve questions of general importance, such that it would be desirable for there to be a decision of the Federal Court or the Family Court on one or more of the points in issue;
(b)whether, if the proceeding is transferred, it is likely to be heard and determined at less cost and more convenience to the parties than if the proceedings is not transferred;
(c)whether the proceeding will be heard earlier in the Federal Magistrates Court;
(d)the availability of particular procedures appropriate for the class of proceeding;
(e) the wishes of the parties; and
(f)for family law or child support proceedings, whether the hearing of the proceeding is likely to take longer than 2 days.
It is to those factors that consideration must now be given.
Pending proceedings in an associated matter in the Federal Court
As indicated above there are pending proceedings in the form of the Federal Court Appeal.[18]
[18] See para. 10 above.
To assist in determining what this factor means it is necessary to consider the purpose of s.19 of the FM Act. The purpose of s.19(1) of the FM Act is explained by the Explanatory Memorandum,[19] as being to “ensure that matters are completed in the Court in which they commenced and that parties do not seek to have the same matter dealt with” in this Court as in the Federal Court.[20] The Explanatory Memorandum describes the purpose of s.19(3) as being to ensure that “inappropriate proceedings” commenced in this Court may be transferred to the Federal Court.[21]
[19] Explanatory Memorandum, Federal Magistrates Bill, 1999, House of Representatives, The Parliament of the Commonwealth of Australia (“Explanatory Memorandum”).
[20] Explanatory Memorandum, para. 31.
[21] Or in family law matters, to the Family Court: Explanatory Memorandum, para. 33.
The Federal Court Appeal is not the “same matter” as this Court is now asked to deal with, the matter before this Court being the creditor’s petition for issuance of a sequestration order. Indeed, if the Respondent, as appellant, is successful in the Federal Court Appeal, at least as to the setting aside of the bankruptcy notice, there will be no basis for the creditor’s petition and the issuance of a sequestration order, whether in this Court or in the Federal Court.[22]
[22] Bankruptcy Act 1966 (Cth), s.43(1)(a).
Proceedings for the issuance of a sequestration order will ordinarily be dealt with by a Registrar of this Court. Likewise in the concurrent jurisdiction of the Federal Court, where they will ordinarily be dealt with by a Registrar or Deputy Registrar. In the Perth Registry there is a significant possibility that the same individual will deal with this creditor’s petition, whether sitting as a Registrar of this Court or a Registrar or Deputy Registrar of the Federal Court.[23]
[23] Registrars of this Court are usually persons appointed as Registrars or Deputy Registrars of the Federal Court: FM Act, ss.99(2) and 101.
Given that the matters are associated (for the purposes of these proceedings), but not the same matter, detracts somewhat from the proposition that the creditor’s petition is an appropriate proceeding to transfer to the Federal Court. It is further a matter which, if transferred, would not be heard by the Full Court, as was the Federal Court Appeal. Rather, it would, as indicated above, ordinarily be heard by a Registrar or Deputy Registrar of the Federal Court. Even if it were heard by a Judge of the Federal Court, it may not be heard by any of the Judges who heard the Federal Court Appeal. This lack of continuity in relation to the hearing of the two matters, whilst not an essential factor in considering a transfer, again detracts somewhat from the proposition that the creditor’s petition is an appropriate proceeding to transfer to the Federal Court. The primary purpose of s.19 seems to be to get proceedings in the “same matter” filed in this Court dealt with in conjunction with proceedings in the Federal Court in respect of that “same matter”. Although associated, the two matters now under consideration cannot now be heard together, the Federal Court Appeal having already been heard. Theoretically, it might be that a Full Court, and in this case the same Full Court that heard the Federal Court Appeal might be convened to hear the creditor’s petition, as there appears to be nothing in s.14 of the Federal Court of Australia Act 1976 (Cth)[24] to preclude it, but it would be unusual, Full Courts normally only sitting on appeals,[25] and not on first instance creditor’s petitions.
[24] “FCA Act”.
[25] FCA Act, ss.24 and 25.
Otherwise, the fact that were there a transfer to the Federal Court the creditor’s petition would most likely be heard by a Registrar or Deputy Registrar of the Federal Court, who sitting as a Registrar of this Court would ordinarily hear the creditor’s petition in this Court, is immaterial because of s.19(3) of the FM Act. Under s.19(3) of the FM Act this Court must decide to transfer or not, and, if not, to dismiss not only the notice of motion, but also the creditor’s petition. Who might hear the matter if the proceedings were able to proceed further in this Court is therefore immaterial.
Finally, in relation to this factor, the Court observes that whilst, in the context of an associated matter for the purposes of s.19(1) of the FM Act, this proceeding might be an “inappropriate proceeding” to have been commenced in this Court, it would not ordinarily be so. The vast majority of bankruptcy cases are dealt with by this Court: in 2005/2006 94 per cent of first instance bankruptcy cases in Australia were heard by this Court.[26]
[26] Federal Magistrates Court of Australia, Annual Report 2005/2006, at 18.
Against the preceding background the fact that there are pending proceedings in the Federal Court is probably not as significant a factor as it would ordinarily be in the matrix of factors to be considered when determining whether to transfer the proceedings to the Federal Court.
The somewhat unusual features of this matter, involving an appeal and first instance proceedings, but not the “same matter”, means that overall this factor, which would normally favour transfer of the proceedings to the Federal Court, is probably closer to being neutral in this matter.
Sufficiency of resources of this Court to hear and determine proceeding
The proceedings will either be transferred to the Federal Court, or have to be dismissed by this Court. In that regard, this Court’s resources are sufficient to hear and determine the proceeding.[27]
[27] FM Act, s.19(3), and see para. 19 above.
Question of general importance
On the question of what constitutes a question of general importance, this Court has said:
A question of general importance might arise where:
(a) the issue to be determined is of general importance to the public at large or a significant class of persons or type or series of cases: MZXJR v The Minister for Immigration [2006] FMCA 652 at par [38] per McInnis FM;
(b) the case relates to the revenues of a Commonwealth or State: Noble v Cotton in Dowling, Proceedings of the Supreme Court, Vol 34 1 at p.10 per Dowling and Stephen JJ (and in that case relating to revenues of the then colony of New South Wales);
(c) significant human rights issues are at stake such as in Karner v Austria (2003) ECHR 395, where the European Court of Human Rights had to deal with differential treatment of homosexuals in succession to tenants under Austrian law as involving a question of general importance not just for Austria but for other state parties to the relevant convention;
(d) an issue as to the proper construction of legislation arises: Baumer v R (1988) 166 CLR 51;
(e) some important or exceptional point of principle arises: Veen v R (1979) 143 CLR 458 at p.461 per Stephen J, p.468 per Mason J and pp.497-498 per Aickin J;
(f) the particular area of law or the case law concerning that area is, "an area of some complexity": Spencer & Rutherford v Horizon Holidays & Ors [2006] FMCA 386 at par [7] per Connolly FM, or is a “substantial commercial dispute which involves a number of complex issues”: Spencer & Rutherford at par [10] per Connolly FM.[28]
[28] Genovese v BGC Construction Pty Ltd [2006] FMCA 1507 at para. 13 per Lucev FM (“Genovese 2006”).
The creditor’s petition itself involves no discernible issue of general importance, save that involves a considerable amount of Commonwealth revenue, particularly as it relates to a single non-corporate taxpayer. Otherwise, the creditor’s petition does not involve an issue of such importance, or of sufficient complexity, to warrant transfer of the proceedings to the Federal Court.[29] However, the underlying issues, which the Respondent seemingly still seeks to agitate by way of appeal before the Supreme Court of Western Australia Court of Appeal, might be said, on the face of it, to be of some complexity. However, in circumstances where both the Supreme Court of Western Australia Court of Appeal and the Federal Court have characterised the issues sought to be agitated by the Respondent as revealing no arguable case and having “very low” prospects of success respectively[30] it is unlikely that this Court will find the matter is complex, or alternatively, sufficiently important, to warrant transfer of the proceedings to the Federal Court, other than on the basis of the amount of Commonwealth revenue involved in relation to a single non-corporate taxpayer.
[29] Contrast this case, which is about a single creditor’s petition and a single respondent, with King v Office National Limited and Others [2007] FMCA 1840 (“King”) where the Court transferred a matter to the Federal Court where the case was formulated with “notable complexity, including as to causes of action, numbers of active respondents, and multiplicity of legal and factual issues” with “possibly extensive interlocutory applications.”: at para. 13 per Smith FM. There was also the “prospect of a hearing which will require an allocation of judicial and other resources considerably greater than is usually available in this Court”: at para. 13 per Smith FM. It was estimated that the hearing might take at least two weeks, which the Court thought might be “a significant under-estimation”: at paras. 8 and 13 per Smith FM. The Court considered that “this Court would be strained to accommodate” the demands of the case and that it would proceed more expeditiously and with lower costs in the Federal Court: at para. 14 per Smith FM.
[30] See paras. 7-8 above.
On balance, this factor may, albeit marginally, warrant transfer of the proceedings to the Federal Court.
Costs and convenience of hearing and determination
The actual costs of hearing and determination will be less in this Court than the Federal Court, both for the parties, and overall in terms of the amount it will cost each court to conduct proceedings. This Court will only be required (if it does not transfer the proceedings) to dismiss the matter, ordinarily with costs. If the matter is transferred there will be greater cost, in having the matter heard and determined in the Federal Court, and especially if it were to be heard by a Full Court of the Federal Court.[31]
[31] See para. 26 above.
Likewise, on the question of convenience: greater inconvenience will attend a transfer to the Federal Court than a dismissal by this Court.
On balance, this factor does not favour transfer of the proceedings to the Federal Court.
Earlier hearing of proceedings
A refusal to transfer the proceedings will result in their termination in this Court. Hence the proceedings will be heard, and determined, earlier if there is a refusal of the application to transfer the proceedings to the Federal Court.
This factor does not favour transfer of the proceedings to the Federal Court.
Availability of particular procedures appropriate for the class of proceedings
Given the concurrent jurisdiction in bankruptcy of the Federal Court and this Court and the harmonisation of the bankruptcy rules between the two courts, this factor is neutral in relation to a transfer of the proceedings to the Federal Court.
Wishes of the parties
The Applicant wishes the proceedings to be transferred. That is opposed by the Respondent. This factor is neutral in relation to a transfer of the proceedings to the Federal Court.
The interests of the administration of justice
In Genovese 2006 this Court dealt with the meaning of the term “the interests of the administration of justice”, as follows:
“In BHP Billiton Ltd v Schultz (2004) 221 CLR 400, [2004] HCA 61, (“Schultz”) the High Court considered the nature of the “interests of justice”: Gleeson CJ, McHugh and Heydon JJ CLR at p.421, HCA at par [15] said:
The interests of justice are not the same as the interests of one party, and there may be interests wider than those of either party to be considered. Even so, the interests of the respective parties, which might in some respects be common (as, for example, cost and efficiency), and in other respects conflicting, will arise for consideration. The justice referred to in s.5 is not disembodied, or divorced from practical reality.
Gummow J observed that the interests of justice “are even-handed”; CLR at p.445, HCA at par [100] while Callinan J referred to the requirement to “do equal justice”: CLR at p.492, HCA at par [258].
Some of the factors ordinarily considered when assessing the interests of justice are factors which it is mandatory for this Court to take into account under the Federal Magistrates Act and Federal Magistrates Court Rules: for example, costs and convenience of hearing and determination, earlier hearing of proceedings, availability of particular proceedings and pending proceedings in another court (in this case the Federal Court).
In considering the above issues I have had due regard to the factors cited in the dicta from Schultz.
In assessing the “interests of the administration of justice” similar considerations to those in Schultz apply, with the qualification related to “administration of justice”. Administration means “management”: Concise Oxford Dictionary, 7th Edition (Oxford: Oxford University Press, 1984) at p.13. Thus, s.39(3)(d) of the Federal Magistrates Act is directed to a consideration of the interests of the management of justice, which must mean management by the Court of the proceedings pending before the Court.[32]
[32] Genovese 2006, at paras. 24-28 per Lucev FM.
In assessing the interests of the administration of justice it is necessary for this Court to have regard to:
a)the view expressed in Cumins Extension of Time as to the appeal to the Supreme Court of Western Australia Court of Appeal revealing no arguable case;[33]
b)the view expressed in Cumins as to the prospects of the appeal to the Supreme Court of Western Australia Court of Appeal being successful as being “very low”; [34] and
c)the fact that the decision in Cumins was a decision of the Federal Court in relation to a review of a Registrar of the Federal Court.[35]
[33] See para. 7 above.
[34] See para. 8 above.
[35] Cumins at para. 3 per Siopis J. The proceedings were commenced prior to the appointment of a Federal Magistrate in Perth in August 2006.
Regard must also be had to the important fact that the issuance of a bankruptcy notice is based on a properly issued final judgment, followed by a failure to comply with the bankruptcy notice, which brings about an act of bankruptcy upon which all creditors, and not merely the Applicant, can found a petition. It does not require a bankruptcy notice founded upon a judgment debt provable in bankruptcy: the legislative purpose is to identify markers or criteria pointing towards insolvency, for the public benefit. That is a benefit to which this Court must have regard when exercising a discretion,[36] including a discretion as to whether to transfer proceedings to the Federal Court.
[36] La Pegna v Deputy Commissioner of Taxation [2006] FMCA 1643 at para. 27 per Lucev FM, citing Re Athans, Ex parte Athans (1991) 29 FCR 302 at 311 per Hill J; Re Geard, Ex parte Reid (unreported, Federal Court of Australia, Sheppard J, 11 February 1994); ASIC v Forge (2003) 133 FCR 487 at 490-491 per Branson and Stone JJ, [2003] FCAFC 274 at para. 15 per Branson and Stone JJ, FCR at 493 and 494 per Emmett J, FCAFC at paras. 27, 29, 30 and 32-33 per Emmett J.
The Court has considered the Applicant’s responsibility to act as a model litigant. The Applicant has not acted as a model litigant in these proceedings by reason of the Applicant’s relevant officers being unaware of the provisions and effect of s.19 of the FM Act, and by the commencement of proceedings in this Court which ought not, on the basis that it is agreed that they are in respect of an associated matter under s.19(1) of the FM Act, have been commenced in this Court.[37]
[37] Affidavit of Chong, sworn 9 may 2007, paras. 9 and 11
The Applicant’s failure to act as a model litigant must however be weighed against the views previously expressed by other courts, the policy underlying the bankruptcy legislation, and the public benefit, particularly with respect to such a significant amount owing to the Commonwealth. And, thus, the Court has come to the view that notwithstanding the Applicant’s failure to act as a model litigant, that this factor, the interests of the administration of justice, weighs very strongly in favour of the transfer of these proceedings to the Federal Court. Indeed, in the circumstances, it would be perverse not to transfer the proceedings to the Federal Court, for that would result in the dismissal of the petition on very slim and technical grounds, contrary to the interests of the administration of justice.
Conclusion
The exercise of a discretion does not require a court, absent statutory direction, to give equal weight to all factors to be considered in the exercise of a discretion. In this case the interests of the administration of justice, and the important issue of the extraordinary amount of money owing to the Commonwealth by an individual non-corporate taxpayer, are of sufficient weight, when balanced against the other factors, to warrant transfer of these proceedings to the Federal Court. An order will issue to give effect to the transfer.
The Respondent must pay the Applicant’s costs.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate: M Hewitt
Date: 9 November 2007
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