FARMLAND PTY LTD v. the COMMISSIONER of STAMPS No. SCGRG 91/2935 Judgment No. 3862 Number of Pages - 5 Appeal (1993) 93 ATC 4167 (1993) 25 ATR 211

[1993] SASC 3862

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA DEBELLE J

CWDS
Appeal - Application to strike out appeal for want of prosecution - Application issued before Commissioner had provided stated case - Stated case necessary prerequisite to setting down of appeal - Application dismissed StampDuties Act 1923, s.24 and Supreme Court Rules 95, 97.
Cuming Campbell Investments Pty Ltd v Collector of Imposts (1940) VLR 153 and O'Sullivan v Commissioner of Stamp Duties (Qld) (1984) 1 QD R 212, applied. Corfu Clothing Pty Ltd v Commissioner of Stamps (1988) 48 SASR 105, not followed.

HRNG ADELAIDE, 5 March 1993 #DATE 12:3:1993
Counsel for applicant:        Mr Costello
Solicitors for applicant:     Piper Alderman
Counsel for respondent:     Mr Johns
Solicitors for respondent:    Crown Solicitor

ORDER
1. The application of the Commissioner to strike out this appeal for want of prosecution is dismissed.
2. The application by Farmland for leave to set the appeal down for hearing is adjourned to a date to be fixed.
3. There will be no order as to costs.

JUDGE1 DEBELLE J Application to strike out appeal for want of prosecution. This application was heard on 5 March. After hearing argument, I dismissed the application for reasons to be published later. These are the reasons for that decision. 2. On 11 December 1991, the appellant, Farmland Pty Ltd ("Farmland") lodged an appeal in this Court against two assessments for stamp duty made by the respondent Commissioner of Stamps ("the Commissioner"). The first assessment was in respect of an agreement for sale and purchase dated 5 September 1991 and made between E. Anders and Sons Pty Ltd as vendor and Farmland as purchaser. The duty as assessed was $54,250. Farmland contends that the Commissioner should repay the sum of $27,160 as duty overpaid in respect of this agreement. The second assessment is in respect of a memorandum of transfer dated 26 September 1991 between E. Anders and Sons Pty Ltd as transferor and Farmland as transferee and penalties assessed in respect of that transfer. The duty and penalties assessed was $7,852. Farmland contends that duty amounting to $112 has been overpaid. 3. The assessments for stamp duty were made on 20 November 1991. The duty was paid on 11 December 1991. The appeal was instituted on 11 December 1991 and served on the respondent on 12 December 1991. The appeal was instituted within time, being lodged on the last available day. 4. Section 24 of the Stamps Duties Act, 1923 provides:
    "(1) Any person who is dissatisfied with the assessment of the
    Commissioner may, on payment of duty in accordance therewith -
    (a) within fourteen days after the date of the Commissioner's
    assessment, forward to the Treasurer a statement of the grounds
    of his objection to the assessment;
    or
    (b) within twenty-one days after the date of the Commissioner's
    assessment, appeal to the Supreme Court.
    (2) The Treasurer may, on receipt of a statement of grounds of
    objection, confirm or modify the Commissioner's assessment and,
    if the assessment is reduced, any excess duty paid by the
    objector will be refunded together with interest on the excess,
    from the date of payment of the duty, at the rate fixed under
    subsection (10).
    (3) If upon the confirmation or modification by the Treasurer of
    the Commissioner's assessment the person is still dissatisfied,
    he may, within twenty-one days after the Treasurer's decision is
    communicated to him, appeal to the Supreme Court.
    (4) For the purpose of any appeal to the Supreme Court under
    this section, the appellant may require the Commissioner to
    state and sign a case setting forth the question upon which his
    opinion was required and the assessment made by him.
    (5) The Commissioner shall thereupon state and sign a case
    accordingly and deliver it to the appellant and, upon his
    application, the case may be set down for hearing in the Supreme
    Court.
    (6) Upon the hearing of such a case (at least seven days notice
    of which shall be given to the Commissioner), the Court shall
    determine the question submitted and assess the duty, if any,
    chargeable under this Act.
    (7) If the Court finds that the appellant has paid duty that is
    not chargeable under this Act, or has paid duty in excess of the
    amount chargeable under this Act, the Court will order the
    Commissioner -
    (a) to refund the amount that was not properly chargeable
    together with interest on that amount, from the date of payment
    of the duty, at the rate fixed under subsection (10);
    and
    (b) to pay the appellant's costs of the appeal.
    (8) If the assessment of the Commissioner is confirmed by the
    Court, the costs incurred by the Commissioner in relation to the
    appeal shall be ordered by the Court to be paid by the appellant
    to the Commissioner.
     (9) For the purposes of this section, the Supreme Court may
    consist of one judge only.
    (10) The Minister may, by notice in the Gazette -
    (a) fix a rate of interest in respect of refunds of duty under
    this section;
    or
    (b) vary a rate of interest previously fixed under this
section." 5. When Farmland's solicitors served the notice of appeal on 12 December, they delivered with it a letter to the Commissioner. The letter proposed that the Commissioner deal with the appeal as if it were an objection lodged under s.24(1)(a) and that Farmland would proceed by way of appeal only if it was dissatisfied with the Treasurer's confirmation or modification of the assessment pursuant to s.24(3) of the Act. 6. There followed the first of the two long delays in this matter. The Commissioner instructed the Crown Solicitor to act on his behalf in the appeal but did not do so until 20 March 1992, more than three months after the institution of the appeal. Two months later, on 20 May 1992, the Crown Solicitor wrote to Farmland's solicitors, rejecting the proposal in the letter of 12 December and stating the matter should proceed as an appeal in the ordinary way. The letter went on to invite Farmland to request the Commissioner to state and sign a case pursuant to s.24(4) of the Act. There is no explanation for either the delay on the part of the Commissioner or the delay on the part of the Crown Solicitor. 7. The matter then went off into limbo again. Farmland's solicitors did not again communicate with the Crown Solicitor or the Commissioner until 20 January 1993, some eight months after they had received the Crown Solicitor's letter. On that day, a partner in Farmland's firm of solicitors telephoned the Crown Solicitor's officer handling the matter informing him that he acted for Farmland in place of the partner previously handling the matter who had left the firm. In the course of the conversation, the Crown Solicitor's officer stated that the appeal had lapsed as it had not been set down for hearing in the period prescribed by the Supreme Court Rules. He said he was relying on Rule 95.11(3)(a) and the decision in Corfu Clothing Co Pty Ltd v Commissioner of Stamps (1988) 48 SASR 105. 8. Farmland's solicitors then wrote to the Crown Solicitor on 21 January 1993 enclosing an application for leave to set the appeal down for hearing. In that letter, they also asked the Commissioner to state a case pursuant to s.24(4). The Crown Solicitor then informed Farmland's solicitors that the application to set the appeal down for hearing would be opposed. On 8 February 1993, the Crown Solicitor issued the application that the appeal be dismissed for want of prosecution. 9. Farmland's solicitors seek to explain their delay in replying to the Crown Solicitor's letter. The senior partner of the firm has sworn an affidavit in which he says that he had from time to time enquired as to the progress of the matter of the partner who was then handling the appeal. He had been assured that that partner was attending to it. On 30 September 1992, that partner had left the firm. Nothing was then done by Farmland's solicitors to prosecute the appeal until mid-January 1993. There is nothing which excuses this conduct. Farmland's solicitors have been guilty of a gross oversight in this matter. 10. The conduct of this appeal does little credit to the respective solicitors. Both have been guilty of serious delays, neither of which is satisfactorily explained. In each case, the delay was in relation to what was a very simple step in dealing with the matter. 11. An appeal pursuant to s.24 of the Stamp Duties Act is categorised as a Miscellaneous Appeal under the Supreme Court Rules. The Rule regulating the procedure for Miscellaneous Appeals is Rule 97. Rule 97.06(1) provides that an appellant shall set an appeal down for hearing within 28 days of the institution of the appeal. Rule 97.06(2) provides that, if an appeal is not set down as required by Rule 97.06(1) the respondent may apply either to set the appeal down or for an order dismissing the appeal for want of prosecution. Mr Johns, who appeared for the Commissioner, submitted that, as the appeal had not been set down for hearing as required by Rule 97.06(1), the Commissioner was entitled to apply pursuant to Rule 97.06(2) for an order dismissing the appeal for want of prosecution. Mr Johns further submitted that, by virtue of Rule 97.07, the provisions of Rule 95.11(3)(a) were called into operation with the consequence that the appeal had lapsed pursuant to that Rule. Rule 97.07 provides: "The relevant Rules of Rule 95 shall with all necessary modifications apply to all appeals under Rule 97 to a single Judge of the Supreme Court." Rule 95.11(3)(a) provides: "Where an appeal has not been set down within twelve months from its institution, or from when the appellant first became entitled to set it down, whichever is the latter, it shall lapse at that time unless the time for setting down has been extended prior to the time set by this Rule expiring, or, where in special circumstances only, such time has been extended after the time limited by this Rule has expired." 12. Mr Johns relied on the decision in Corfu Clothing Co Pty Ltd v Commission of Stamps (supra) where it was held that the provisions of both Rule 97.06 and Rule 95.11(3)(a) applied to appeals under s.24 of the Stamp Duties Act. For the reasons which follow, I respectfully believe both those conclusions to be wrong. 13. Section 24 provides not only a right of appeal but also its own discrete regime as to the setting down of such appeals. Before an appeal can be set down for hearing, s.24(4) requires two steps to be completed. First, the appellant must require the Commissioner to state a case and, secondly, the Commissioner must state and sign a case setting forth the question upon which his opinion was required in the assessment made by him. The provision of a stated case by the Commissioner is an essential prerequisite for the conduct of an appeal pursuant to s.24: Cuming Campbell Investments Pty Ltd v Collector of Imposts (1940) VLR 153; O'Sullivan v Commissioner of Stamp Duties (Qld)
(1984) 1 Qd R 212; Corfu Clothing Co Pty Ltd v Commissioner of Stamps (supra) at 113. Not until a case has been stated is it possible to set an appeal down for hearing. 14. Thus, in the circumstances of this appeal, in the absence of a stated case, the appellant could not set the appeal down for hearing. Had it attempted to do so, it would have been met with the failure to comply with s.24(4). In other words, there was nothing upon which either Rule 97.06 nor Rule 95.11(3)(a) could operate. There was, therefore, no ground upon which an application could be made to strike out the appeal under Rule 97.06. 15. There are further reasons why Rule 95.11(3)(a) does not have the effect for which the Commissioner contends. Even if Rule 95.11(3)(a) applies to appeals instituted under s.24, it nevertheless does not cause an appeal to lapse unless the appellant has failed to set the down from hearing within twelve months from its institution or within twelve months from the time when the appellant first became entitled to set it down, whichever is the latter. In the absence of a stated case, the appellant was not entitled to set the appeal down for hearing. By reason of the very terms of Rule 95.11(3)(a), therefore, this appeal has not lapsed. 16. Mr Johns also referred to the principles of case flow management and urged that it was consistent with the policy expressed in those principles to dismiss this appeal for want of prosecution. He referred to the decisions in United Motors Retail Limited v Australian Guarantee Corporation Limited (1992) 163 LSJS 1 and McPhee v Blyth (1992) 166 LSJS 236. Whatever consequences might flow or be involved in the principles of case flow management, they cannot qualify the statutory right of appeal provided by s.24 and the requirement for a stated case before an appeal can be set down for hearing. 17. For these reasons, the application by the Commissioner to strike out the appeal for want of prosecution must fail. Farmland's solicitors, very properly, did not apply for costs. 18. By like reasoning, the application by Farmland for leave to set the appeal down for hearing is premature. It cannot be set down until Farmland requests the Commissioner to state a case and the Commissioner has stated and signed the case pursuant to s.24(4). The application of Farmland will be adjourned to a date to be fixed. There will be no order as to costs on that application. 19. There will be orders as follows:
    1. The application of the Commissioner to strike out this
    appeal for want of prosecution is dismissed.
    2. The application by Farmland for leave to set the appeal down
    for hearing is adjourned to a date to be fixed.
    3. There will be no order as to costs.