Girardi v Commissioner of State Taxation - [2013] SASC 43

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
GIRARDI v COMMISSIONER OF STATE TAXATION
[2013] SASC 43
Judgment of The Honourable Justice Gray
5 April 2013
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - OTHER CASES
TAXES AND DUTIES - LAND TAX - OBJECTIONS AND APPEALS - IN GENERAL
The Commissioner of State Taxation assessed the appellant as being liable for land tax in relation to a property at Sellicks Beach - the appellant lodged a notice of objection - the Minister has not determined the objection - the appellant appealed to the Supreme Court of South Australia - the appellant has not paid the whole of the amount of the tax to which the appeal relates and has not sought the exercise of the Minister's discretion to permit the right of appeal to be exercised - the Commissioner brought an application to dismiss the appeal for disclosing no reasonable cause of action - whether the appeal is incompetent.
Held: Appeal dismissed - the appeal is incompetent.
Taxation Administration Act 1996 (SA) s 92, s 93, s 94 and Div 2 of Pt 10, referred to.
Metropolitan Gas Co v Federated Gas Employees’ Industrial Union (1924) 35 CLR 449; Patman v Fletcher’s Fotographics Pty Ltd (1984) 6 IR 471; Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; Bradman v Allens Arthur Robinson (No 2) [2009] SASC 180, considered.

GIRARDI v COMMISSIONER OF STATE TAXATION
[2013] SASC 43
Civil
GRAY J.

On 3 May 2012, the Commissioner of State Taxation assessed Peter Girardi, the appellant, as being liable for land tax in relation to his property at 48 Esplanade, Sellicks Beach in the State of South Australia in the amount of $99,259.84.
On 3 August 2012, the appellant lodged a notice of objection in relation to the relevant assessment. The Minister has not yet determined the objection.
On 31 January 2013, the appellant lodged an appeal to this Court pursuant to section 92 of the Taxation Administration Act 1996 (SA). The appellant has neither paid to the Commissioner the whole of the amount of the tax to which the appeal relates as assessed by the Commissioner, nor sought the exercise of the Minister’s discretion to permit the right of appeal to be exercised.
The Commissioner considered that by operation of section 93 of the Taxation Administration Act the appeal is incompetent. The Commissioner has brought an application pursuant to rule 193 of the Supreme Court Civil Rules 2006 (SA) to dismiss the appeal for disclosing no reasonable cause of action. Rule 193 provides:
The Court may dismiss proceedings if—
(a) the pleadings disclose no reasonable cause of action; or
(b) the proceedings are frivolous, vexatious or an abuse of the process of the Court.
Division 2 of Part 10 of the Taxation Administration Act is entitled “Appeals” and provides:
92—Right of appeal
A person who has made an objection may appeal to the Supreme Court if—

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.

Continue reading Girardi v Commissioner of State Taxation

Details

AGLC: Girardi v Commissioner of State Taxation [2013] SASC 43
Case: [2013] SASC 43
Decision Date: 5 April 2013

CaseChat Overview and Summary

The Supreme Court of South Australia heard an appeal by Girardi against the Commissioner of State Taxation regarding a land tax assessment on a property located at Sellicks Beach. Girardi had lodged a notice of objection to the assessment, but the Minister had not yet determined the objection. The appeal was brought to the Supreme Court under the provisions of section 92, but the Commissioner applied to dismiss the proceedings on the basis that the appeal was incompetent. The primary issue for the court was whether the appeal was competent, given that Girardi had not paid the full amount of the tax and had not sought the Minister's discretion to permit the right of appeal.

The court considered that a dismissal of proceedings pursuant to rule 193 of the Supreme Court Civil Rules is procedural and does not settle any underlying controversy. The Commissioner accepted that such a dismissal would not prevent Girardi from exercising a right of appeal in the future once statutory restrictions are overcome. The court referenced the decision in Bradman v Allens Arthur Robinson (No 2), where Kourakis J highlighted that a dismissal of proceedings for not disclosing a reasonable cause of action or being frivolous, vexatious, or an abuse of process, does not involve an adjudication of the underlying legal matter. The court concluded that in such cases, there can be no objection to a further action on the ground that the claim made is res judicata. The court found that this appeal was incompetent because Girardi had not satisfied the statutory preconditions for appealing.

The court held that the appeal was incompetent and dismissed it. Consequently, the appeal was dismissed on the basis that it did not meet the statutory requirements for being heard.

ORDERS:
The appeal is dismissed. The appeal is deemed incompetent.

Orders

Orders of the court

Held: Appeal dismissed - the appeal is incompetent.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J

A dismissal of proceedings pursuant to rule 193 of the Supreme Court Civil Rules is not a determination of the claim on the merits: it is procedural and does not settle any underlying controversy.[5] The Commissioner accepted that the dismissal of the proceedings would not prevent the appellant from exercising a right of appeal pursuant to section 92 in the future, once the statutory restrictions on the exercise of that right are overcome. [5] See, Bradman v Allens Arthur Robinson (No 2) [2009] SASC 180, [10]. In particular, Kourakis J observed:It is convenient, however, to observe that a dismissal of proceedings pursuant to r 193 or the inherent power is not a determination of the plaintiffs’ claim on the merits. A dismissal of an action because it discloses no reasonable cause of action or because it is frivolous, vexatious or an abuse of process, can involve no adjudication of an underlying legal matter. If proceedings are dismissed because they disclose no reasonable cause of action, by definition there cannot have been an adjudication of a cause of action that was not disclosed. Similarly, the dismissal of proceedings because they are frivolous, vexatious or an abuse of process involves no adjudication of the claim made; the very reason for the dismissal is that the claim does not merit adjudication and the making of a final judicial order. It follows that in such cases there can be no objection to a further action on the ground that the claim made is res judicata. It may of course be the case that the fresh action will be again dismissed pursuant to r 193 or the inherent power, or as an abuse of process, but both the original order and the subsequent order, if it is made, are procedural or adjectival and do not settle any underlying controversy. Although the decision of Kourakis J was reversed by the Full Court on appeal, it was not reversed on this point. Conclusion Having regard to the foregoing, it follows that this appeal is incompetent. The appeal is dismissed.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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