England v Deputy Commissioner of Taxation No. Scciv-00-594

[2001] SASC 226

ENGLAND v DEPUTY COMMISSIONER OF TAXATION
[2001] SASC 226

Full Court:  Olsson, Perry and Nyland JJ
Application for leave to appeal (In Private)

1. OLSSON J The applicant liquidator (who is defendant in these proceedings) seeks leave to appeal from an order of Prior J dismissing an appeal against the order of a Master that proceedings in the Federal Court of Australia formerly known as No SG 3130 of 1996 and dismissed by that Court for want of jurisdiction be treated as a proceeding in this Court. The Master made that order on an application pursuant to s 11 of the Federal Courts (State Jurisdiction) Act 1999.

2. The relevant background circumstances and issues are fully traversed by Prior J in reasons published by him on 11 May 2001 (Deputy Commissioner of Taxation v England [2001] SASC 146). There is no need to retraverse the same ground.

3. In the course of his reasons Prior J had this to say:-

   “As to the first ground of appeal, I agree with what Wicks J said in refusing to order that this appeal be argued before the Full Court.  Any extension of time within which to appeal is not a proper question for a court considering an application under s 11(2).  If that argument is to be pursued it arises after the s 11 application is dealt with and only with respect to the question whether the proceeding initiated within the Federal Court in 1996 is within the limitation period applicable by the terms of s 11(3)(b).

   I reject the submission put by the defendant that the issue of these proceedings in June 2000 was in substance and reality an appeal purportedly instituted over three and half years [sic] after the rejection of the proof of debt.  This Court had before it a specific application by a person claiming to be entitled to an order that the Federal Court proceeding be treated as a proceeding in this Court.  The submission that an extension of time had to be sought before an order could be made in accordance with s 11(2) confuses the appeal sought to be pursued and the application before the master.  The application gave rise to an order treating a proceeding in the Federal Court, in which a relevant order had been made, as a proceeding in this Court.  It was not dealing with the appeal.  That appeal is the proceeding, which because the court has made an order ‘becomes’, and has to ‘be recorded’ by this Court as a proceeding in this Court.  Thus, any relevant limitation point is something to be pursued after the order is made.  It is not a condition precedent to the making of the order sought and granted.”

4. In my opinion the correctness of this reasoning is beyond challenge.

5. I also agree with Prior J that, in the circumstances of this case, the provisions of s 11 are such that they imposed a clear duty on the Master to make the order now sought to be impugned. Whatever may be the extent of any discretion conferred by the legislation, there were no circumstances here arising which could have warranted a refusal to grant the relief sought.

6. The summary of argument in support of the present application simply seeks to reagitate what was put to Prior J. I am not persuaded that it demonstrates a reasonably arguable proposition that he fell into error. Indeed, it continues to confuse the questions as to what issues fall to be considered after a section 11 order is made and given effect to with those which are pertinent to the making of such an order.

7. I would refuse the application.

8. PERRY J               I agree with Olsson J for the reasons which he has given that leave to appeal to the Full Court should be refused.

9. I mention that there is no question but that such leave is required, given the decision of the Full Court in Collins v Emacord Autos Pty Ltd (Judgment No S6418, 3 November 1997, unreported) in which it was held that in the case of a proposed appeal from the decision of a single judge on appeal from an interlocutory order of a master, leave is required pursuant to s 50(3)(b) of the Supreme Court Act 1935.

10. NYLAND J            I agree with Olsson J that the application for leave to appeal to the Full Court should be refused for the reasons he has given.