Glennan v Commissioner of Taxation

[2003] HCATrans 555

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S195 of 2002

B e t w e e n -

MICHAEL JOHN GLENNAN

Appellant

and

COMMISSIONER OF TAXATION

Respondent

Office of the Registry         
  Sydney  No S457 of 2002

In the matter of -

An application for Writs of Certiorari, Mandamus and Prohibition against MICHAEL CARMODY in his capacity as COMMISSIONER OF TAXATION FOR THE COMMONWEALTH OF AUSTRALIA

First Respondent

THE JUDGES OF THE FEDERAL COURT OF AUSTRALIA

Second Respondents

Ex parte –

MICHAEL JOHN GLENNAN

Applicant

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 10 FEBRUARY 2002, AT 11.17 AM

Copyright in the High Court of Australia

__________________

MR J.D. HARRIS, SC:   May it please the Court, I appear for the appellant.  (instructed by Higgins Solicitors)

MR D.B. McGOVERN, SC:   If your Honour pleases, I appear for the respondent Commissioner.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   Now, when is this matter set down for?

MR McGOVERN:   For 7 March, I believe, your Honour.

HIS HONOUR:   Now, what is the process that exists at the moment for the further application under 75(v)?  At the moment it is an ex parte application, I suppose, is it?

MR HARRIS:   Yes, there is perhaps a little uncertainty about that.  When this matter came before your Honour and Mr Glennan appeared, our note of your Honour’s order on that day was that the other proceedings, No 195/2002, is that what your Honour is inquiring about?

HIS HONOUR:   No 195/2002, is that?

MR HARRIS:   Yes, that those proceedings were adjourned to the hearing ‑ ‑ ‑

HIS HONOUR:   Matter 195 starts with a notice of appeal.

MR HARRIS:   I am sorry, no, it is 457.  I am sorry, I have given your Honour the wrong number.

HIS HONOUR:   Matter 457, yes, that is it, that is what I have in mine.

MR HARRIS:   Yes.  Our note is that your Honour’s order was that 457 simply be adjourned to the date of the hearing in proceedings 195, that is, to 7 March, as it has turned out.

HIS HONOUR:   Yes.

MR HARRIS:   But we are not certain whether your Honour meant by that that the proceedings 457 will be heard on that date or whether your Honour intended that the proceedings simply be listed for mention, as it were, or for directions or for some other purpose on that date.  The appellant in 195, Mr Glennan, would submit because the matters are intertwined that it is appropriate that 457 be listed for hearing on the 7th, but ‑ ‑ ‑

HIS HONOUR:   What do you say about this, Mr McGovern?  I got the tenor from your written submissions was that the shortest way home is probably to refer 457 of 2002 to be considered by the Full Court in the first instance on that day, along with the appeal.

MR McGOVERN:   Yes, and it would be implicit in our stance in that regard that we be able to argue that leave ought not be granted for reasons of timeliness and discretionary considerations, but that could all be embraced within the one proceeding.

HIS HONOUR:   Yes.  If that is done, do you need leave to supplement your notice of appeal which has difficulties about it?

MR HARRIS:   Yes, your Honour.  What I had proposed in that regard, and I have prepared some further written submissions, your Honour, was an order that the appellant have leave to file such further amended notice of appeal as it is advised on or before Thursday, 20 February 2003.  The intention behind that is, your Honour, so that the issues that the appellant wishes to raise on the appeal are identified at least by 20 February and my friend has a reasonable opportunity to meet them and ‑ ‑ ‑

HIS HONOUR:   Yes, would those grounds include the grounds in 457?

MR HARRIS:   Yes, they would.

HIS HONOUR:   Why can you do it twice?

MR HARRIS:   Let me reflect on that.  To the extent that it is argued in the appeal matter that – I think the short answer is no, but there is a slight side issue and it is this, your Honour:  writs were sought before his Honour Justice Kirby and they were refused.  I have to concede that some of the matters that would be argued might be touching on some of the matters that his Honour Justice Kirby dealt with.  To the extent that it might be argued that the orders of his Honour Justice Kirby found a basis for striking out the appellant’s action, then we would wish to take issue with that on the appeal.  I am sorry, your Honour, I have not made that very clear, but ‑ ‑ ‑

HIS HONOUR:   Yes, I understand what you are saying.  It was leave to file and serve on or before what date in February?

MR HARRIS:   I would suggest Thursday, 20 February because that is the date by which the normal practice directions would require us to have filed our written submissions and list of authorities and so on and we propose, of course, to comply with that as well.

HIS HONOUR:   Yes.

MR HARRIS:   I notice the Deputy Registrar is checking my arithmetic and I hope I am right.  I think I am at least within a day or so.

HIS HONOUR:   Yes, thank you, Mr Harris.  What do you say about that, Mr McGovern?

MR McGOVERN:   Your Honour, our submission is that the question of any amendment should be the subject of consideration by the Full Court so that any proposed amended notice of appeal could be filed by that date with a question of whether or not there should be leave in those terms could be determined by the Full Court.  Now, that permits both parties to have their positions protected because we would be entitled to argue comprehensively the basis upon which we say the leave should not be granted.  By the same token, my friend would be able to ventilate all issues that pertain to the merits of the proposed amendment.

HIS HONOUR:   Yes, thank you.  Now, this is what I propose, gentlemen:

(1)  the appellant in appeal S195 of 2002 have leave to file and serve on or before 20 February 2003 an amended notice of appeal excluding the grounds on which the appellant wishes to rely in the application S457 of 2002;

(2)  the appellant may apply at the hearing on 7 March 2002 of the appeal to supplement the amended notice by the inclusion of the S457 of 2002 grounds, referred to in order 1;

(3)  direct pursuant to Order 55 rule 2 that the application in S457 of 2002 be made in the first instance to the Full Court and that it be listed with the appeal in S195 of 2002;

(4)  costs of today be costs in S195 of 2002;

(5)  certify for counsel.

MR HARRIS:   Your Honour, I am sorry to do this, but could I trouble your Honour to read again order no (2)?

HIS HONOUR:   Yes, order no (2):

The appellant may apply at the hearing on 7 March 2003 of the appeal to supplement the amended notice of appeal by the inclusion of the S457 of 2002 grounds referred to in order (1).

In other words, your amended notice of appeal will probably include other things, I think.

MR HARRIS:   Yes.

HIS HONOUR:   To the extent that you want to put in to duplicate 457 of 2002, you will have to apply for that at the appeal itself, because the Full Court may decide to deal with those arguments within the appeal or it may decide to deal with it separately in the 457 argument, but I will not bind them.  I think that protects your position.

MR HARRIS:   Yes.  Would your Honour just excuse me, I am sorry?  Your Honour, because we will not actually have filed the amended notice of appeal – I am sorry, I withdraw that.  Because we will not have had leave and filed an amended notice of appeal before the hearing on 7 March ‑ ‑ ‑

HIS HONOUR:   Just turn up with a further document, that is all.

MR HARRIS:   Yes, but what we would propose, your Honour, is that we would comply with the Court’s practice directions and we would expect, of course, the respondent to comply with the Court’s practice directions in terms of written submissions and so on as if ‑ ‑ ‑

HIS HONOUR:   I was going to come to that.

MR HARRIS:   Yes.

HIS HONOUR:   Now, the written submissions, do I need to make any special directions about that, Mr McGovern?  I say that, bearing in mind that you would be including in your written submissions the 457 argument?

MR McGOVERN:   Yes, your Honour.

HIS HONOUR:   So it is going to be there.  And you would, too?

MR HARRIS:   Yes.

HIS HONOUR:   So it is just for the Full Court to decide whether it disposes of them either by looking at them within the framework of the appeal or separately under 457, that is all.

MR HARRIS:   Yes, thank you, your Honour.

HIS HONOUR:   Now, am I right in thinking that your amended notice of appeal will, nevertheless, have other amendments in it?

MR McGOVERN:   It will.  I am happy to hand up some ‑ ‑ ‑

HIS HONOUR:   I do not want to bind you now.

MR McGOVERN:    ‑ ‑ ‑but I have provided them with my friend.

HIS HONOUR:   No, I am entirely happy.  If you are sorting it out between you, do not let me interfere.

MR HARRIS:   Yes.

HIS HONOUR:   All right, and the timetable under the rules will otherwise operate effectively, will it, and the time scale?

MR McGOVERN:   Yes, your Honour.

HIS HONOUR:   Do I need to make any other orders then?  I think it is all right.

MR HARRIS:   I do not seek any other, your Honour.

HIS HONOUR:   I will indicate them again:

(1)  the appellant in S195 of 2002 have leave to file and serve on or before 20 February 2003 an amended notice of appeal excluding the grounds in which the appellant wishes to rely in matter S457 of 2002;

(2)  the appellant may apply at the hearing of the appeal on 7 March 2003 to supplement the amended notice of appeal by the inclusion of the S457 of 2002 grounds, referred to in order (1);

(3)  direct pursuant to Order 55 rule 2 that the application in S457 of 2002 be made in the first instance to the Full Court and that it be heard with the appeal in S195 of 2002 on 7 March 2003;

(4)  costs of today be costs in S195 of 2002;

(5)  certify for counsel.

MR HARRIS:   May it please the Court.

HIS HONOUR:   Yes, thank you, gentlemen.  We will now adjourn.

AT 11.34 AM THE MATTERS WERE CONCLUDED