Federal Commissioner of Taxation v Levy (No 2)

[1961] HCA 12

HIGH COURT OF AUSTRALIA

Menzies J.

FEDERAL COMMISSIONER OF TAXATION v. LEVY (No. 2)

(1961) 106 CLR 472

15 March 1961

High Court

High Court—Practice—Appeal—Rules—Notice of appeal—Served out of time—Power of a Justice to enlarge time—Notice of objection to competency filed out of time—Whether notice void—Rules of the High Court (SR 1952 No. 23) O.60 r. 6*, O. 64 r. 1**, O. 70 rr. 2 (4), 6 (1), (2), 8 (1), (5).

Decision

March 15.
MENZIES J. delivered the following written judgment:-
Several applications have been made in respect of notices of appeal and cross-appeal which have been given herein and objections to competency that have been taken thereto. The order of the relevant events is that by a judgment of 2nd November 1960 Kitto J. disposed of seven tax appeals instituted by the present respondent in respect of income tax assessed for the years of income 1950 to 1956 inclusive. The appeals in respect of the years 1950 to 1954 inclusive were dismissed, but those in respect of the years 1955 and 1956 were allowed. On 23rd November 1960 a notice of appeal on behalf of the Commissioner in respect of that part of the judgment that related to allowing the appeal for the year 1955 was filed, but it was not served upon the respondent until 25th November 1960, two days outside the time allowed by the High Court Rules, 0. 70, r. 6. On 13th January 1961, three days beyond the time provided by 0. 70, r. 8 (1), the respondent filed notice of objection to the competency of the appeal upon the ground that the notice of appeal had not been served upon him within time. In the meantime, on 7th December 1960, the respondent had given notice of cross-appeal, seeking to have the judgment varied by allowing the appeals in respect of the years 1950 to 1954 inclusive. This notice of cross-appeal brought forth a notice of objection to the competency of the cross-appeal on the ground that it related not to the order appealed from, but to different orders disposing of other appeals notwithstanding that there was but one judgment. Both objections to competency were set down for hearing by a single Justice. The Commissioner then, by summons dated 3rd March 1961, sought an order extending the time for service of the notice of appeal from 23rd November 1960 to 25th November 1960 to bring the service actually effected within time. These, then, are the formal applications, but in the course of the hearing both parties were ready enough to make further applications to overcome difficulties that appeared because of non-compliance with the Rules. (at p474)

2. I think I should deal with the Commissioner's application to extend the time for service of the notice of appeal first. Order 70, r. 6, is as follows: "(1) The notice of appeal shall be filed and served in the manner prescribed by the last preceding rule - (a) within twenty-one days after - (i) the date when the judgment appealed from was pronounced; (ii) the date when leave or special leave to appeal was granted; or (iii) any later date fixed for the purpose by the Court appealed from; or (b) within such further time as is allowed by a Justice upon application made to him by summons issued within the period of twenty-one days referred to in the last preceding paragraph. (2) Notwithstanding Order 60, r. 6, the summons mentioned in the last preceding sub-rule shall be issued within the period of twenty-one days fixed by that sub-rule, and, in the computation of that period, the time of the vacations shall be included but the Full Court for special reasons may at any time give special leave to appeal subject to any conditions which appear just." The application of this rule to this case required that the notice of appeal should be served by 23rd November 1960 unless, by application before 23rd November 1960, the time had been extended. Otherwise the only appeal which the rule leaves open is one with the special leave of the Full Court. Once 23rd November 1960 passed without service and without an application to extend time, it seems to me that a single Justice had no power to extend the time for service of the notice, and the application now made to me to do so must fail. The only appeal that the Commissioner can now bring is an appeal by special leave. (at p475)

3. In these circumstances, it is somewhat surprising that the Commissioner's objection to competency was not set down for hearing before the Full Court rather than before a Justice. Had this been done, a notice of intention to apply for special leave at or after the hearing of the objection could have been given, as provided by 0. 70, r. 8 (5). The course taken, however, was to contend before me that the objection to the competency of the appeal was itself void because it was out of time, with the consequence that it is beyond my power in these proceedings to allow the objection and dismiss the appeal as incompetent. I do not accept this contention. I see no reason why the time specified in 0. 70, r. 8 (1), should not be extended under 0. 60, r. 6, and I think, moreover, that 0. 64, r. 1, which says that non-compliance with the rule does not render any proceeding void unless the Court or a Judge so directs, meets the argument that the notice is void. The purpose of giving a notice under 0. 70, r. 8, is to ensure a determination in advance of the hearing of an appeal of any objection that is raised as to its competency. This enabling provision is one which I see no reason for construing in such a way that would in some cases leave a question of competency that had been raised undecided until the appeal itself. I consider, therefore, that in this case I am required to decide the question of the competency of the appeal, notwithstanding that the notice of objection was out of time, and, had I thought it necessary, I would have been prepared to extend the time to make regular the notice that was in fact given. I consider therefore, that I should allow the objection and dismiss the appeal as incompetent and leave it to the Commissioner to make such application as he may be advised to the Full Court as provided by 0. 70, r. 6 (2). Nor do I think that I should make any order about the time for the making of such an application because the rule contemplates that it would be made outside the time specified in 0. 70, r. 2 (4)(c), for the making of applications for special leave. Thus it will be for the Full Court to determine in all the circumstances of the case, including the time at which the application is made, whether or not to accede to any application that may be made for special leave to appeal. (at p475)

4. Dr. Coppel, on behalf of the respondent, conceded that if I were to hold the appeal incompetent there could be no cross-appeal, and accordingly I think it sufficient to dismiss the application made by summons, to allow the objection to the appeal and dismiss the appeal as incompetent and to declare that the notice of cross-appeal given by the respondent is ineffective. The costs of the appeal and of the various applications must be paid by the Commissioner save those arising out of the giving of the notice of cross-appeal. I certify for counsel in so far as the proceedings were in chambers. (at p476)

5. Deciding as I have, I think I should not express any opinion on the question whether, if the appeal were competent, 0. 70, r. 13, would authorize the notice of cross-appeal given by the respondent. (at p476)

Orders

Order accordingly.