Glennan v Commissioner of Taxation S195/2002

[2002] HCATrans 622

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

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 10 DECEMBER 2002, AT 10.19 AM

Copyright in the High Court of Australia

MR M.J. GLENNAN appeared in person.

MR D.B. McGOVERN, SC:   May it please the Court, I appear with my learned friend, MR M.J. LEEMING, for the respondent Commissioner.  (instructed by the Australian Government Solicitor)

GUMMOW J:   Now, Mr Glennan, you have a motion here dated 9 December which seeks various relief but in particular order 2 seeks a vacation of today’s hearing.

MR GLENNAN:   That is correct.

GUMMOW J:   Now, other relief is sought which seems to us, having studied the motion in the affidavit sworn by you on 8 December – there are two affidavits, are there not?

MR GLENNAN:   I am moving on two affidavits.  One is dated 8 December and the other is 8 November.

GUMMOW J:   Yes.  Having read those materials, it seems to us that the only matter which the Full Court properly could be seized in dealing with this motion is the immediate question of the adjournment of today’s hearing.

MR GLENNAN:   With respect, your Honour, I would at an appropriate time wish to make a submission that is unfortunately in conflict with your Honour’s last statement.

GUMMOW J:   What is the submission?  You had better tell us now.

MR GLENNAN:   It is very simply based on the fact that, from memory, on or about 12 November I had the honour and privilege of appearing before your Honour Justice Gummow in Sydney on the return of a chamber summons that I had issued and which was returnable on that date in the presence of my learned opponents.  On that occasion your Honour ordered that that summons stand over to today’s date and be listed before this Court in conjunction with the appeal at 10.15 this morning.

GUMMOW J:   That is ‑ ‑ ‑

MR GLENNAN:   I beg your pardon?

GUMMOW J:   Yes, go on.

MR GLENNAN:   If I am correct in assuming that that is what currently stands on the record of this Court, then there are effectively three matters listed this morning.  There is the appeal proper, there is the adjourned chamber summons, that is No 2, and No 3 there is the notice of motion filed and served yesterday.

So there are three matters all formally before the Court for hearing and determination of one sort or another contemporaneously as at 10.15 am this morning.  So that is why I had taken issue with that last mentioned observation that your Honour made. 

I hope that explains my position and I respectfully submit that as my submission is based on the records of the Court, that that submission is almost, with the utmost respect, incontestable, although Mr McGovern may wish to take issue with that.  I do not know whether he does.  But I would respectfully submit that what I have just said is clearly the position.

GUMMOW J:   Anything that was done previously, Mr Glennan, was done on the basis that there would not be this present adjournment application.

MR GLENNAN:   That there would not be ‑ ‑ ‑

GUMMOW J:   Yes, of course, and there now is one.  The question is, what do you want to do about the adjournment motion?  Do you wish to press it?  If you wish to press the adjournment motion, then we will deal with it.  Do you still seek order 2 this morning?

MR GLENNAN:   Would your Honour just enlighten me?  What is order 2 again in that document?

GUMMOW J:   Have you got the document?

MR GLENNAN:   Yes, your Honour, I do still wish to move on order 2 as of the notice of motion, yes, your Honour.

GUMMOW J:   Right.  Well, that is the first question.

MR GLENNAN:   Yes, with respect, I totally agree.

GUMMOW J:   Yes, Mr McGovern, what do you want to say about order 2?

MR McGOVERN:   Your Honours, the application is opposed.  I think your Honours had a written submission which we had prepared in advance of any submissions from the appellant.

GUMMOW J:   Yes.

MR McGOVERN:   We respectfully submit that the appellant should be seen as in no way an ordinary litigant.  He represented himself on the application for special leave, on the application for orders nisi and on the application before the Chief Justice, in respect of which the appeal is now brought.  He is, as we observed in the written submissions, or was a practising barrister between 1978 and 1987.

HAYNE J:   Assume all that to be so, what follows from it?

MR McGOVERN:   What follows from it is that he is not to be seen as in the position of a litigant in respect of whom one may have sympathy when he suddenly loses the benefit of his legal advisers.  Here Mr Glennan has shown a consummate facility for conducting his own litigation.

HAYNE J:   Again, assume that to be so, what follows from it, where he seeks an adjournment of proceedings which he institutes?

MR McGOVERN:   Yes.  What follows from it is that in the absence of an explanation as to why his legal representatives are not available, the matter should proceed because he has the capacity to present his own case without any prejudice to himself.

HAYNE J:   It is his proceeding.  He wants it adjourned.  Why should he not have it adjourned?

MR McGOVERN:   Well, the prejudice that would be suffered by my client is illuminated firstly by the fact that we have indicated there is an outstanding income tax liability.  The proceedings before this Court have a very lengthy history which include a number of instances where there have been last minute applications for adjournment.  Thirdly, the interests of the general community in terms of the availability of – or this Court’s time being very precious and should be so regarded by the general community.  So the matter not only impacts upon my client directly but also affects the general community.

In my respectful submission, if one goes to the affidavit of 8 December, there is a complete absence of explanation in paragraphs 3 and 4.  All we know is that the legal representatives declined to act at some point, but notwithstanding that fact, paragraph 10 of the affidavit indicates that Mr Glennan has been able to secure legal representation for a fresh application.  Finally, your Honours, we would respectfully submit that there is no utility in granting an adjournment in any event because the appeal itself has no realistic prospects of success. 

Our submission in that regard is that the effect of the discontinuance of the special leave application, the discontinuance of the application for leave to appeal from the judgment of Justice Kirby, means that the conclusions of the Administrative Appeals Tribunal that the amount which is really central to the dispute between Mr Glennan and the Commissioner is treated and should be treated as for all purposes income according to ordinary concepts under section 25. 

The Full Court of the Federal Court has held that the Administrative Appeals Tribunal was entitled to take that view.  Accordingly, the judgment itself of the Full Court operates either as an estoppel, by reason of the issue estoppel that arises between the appellant and the Commissioner in relation to the characterisation of the amount, or, alternatively, on the basis of principles that a judgment cannot be overhauled or outflanked by an original suit at law or in equity, and the principles referred to in our written submissions, following from Reichel v Magrath, Blair v Curran and Rogers v The Queen, that the appeal, the substance of the claim that is made by the appellant, is bound to fail.  So for all those reasons we would submit that there is no utility in granting the application.  They are my submissions, your Honour. 

GUMMOW J:   Thank you, Mr McGovern.  Mr Glennan, having ‑ ‑ ‑

MR GLENNAN:   Excuse me, your Honour, may I just interrupt and I do apologise.  I have prepared some written submissions this morning.  I understand this may be not in the way that the Court would wish me to proceed but I am appearing as litigant in person.  I do ask for the Court’s indulgence, with the utmost respect, and I seek leave to hand up my written submissions.

GUMMOW J:   About what?

MR GLENNAN:   In support.

GUMMOW J:   Of?

MR GLENNAN:   Of my oral submissions that I have just made.  In other words, I am respectfully requesting the Court not to come to a decision on the present application until it has read these written submissions.

GUMMOW J:   You are pushing against an open door, I think, perhaps.

MR GLENNAN:   I beg your pardon, your Honour.

GUMMOW J:   You may be pushing against an open door.

MR GLENNAN:   If the door is open, I seek to insert this through the open passage.

GUMMOW J:   Very well.

MR GLENNAN:   And, fortunately and most efficiently, I have three copies.

GUMMOW J:   You need more than three, actually.

MR GLENNAN:   I have four.

GUMMOW J:   That is not enough either.

MR GLENNAN:   And I think Mr McGovern and Mr Stokes have a copy and I thank the Court for its indulgence.

GUMMOW J:   Yes, Mr Glennan.  Is there anything you want to add to the written materials you have just handed up?

MR GLENNAN:   With respect, your Honour, my final submission is that part of my submissions this morning make at the end, I think on the second last page at the foot, reference to section 77K of the Judiciary Act and I do, with respect, particularly ask the Court to take notice that I do rely on the provisions of that section as a statutory door opener, if I could put it that way, for me to ask the Court’s permission to hear Mr Harris, QC on my behalf who wishes to make some brief submissions to the Court in connection with the application for orders nisi – section 77K of the Judiciary Act, which I have one copy only in front of me, but if your Honours wish me to read that out, I am in a position to do so immediately.  If the Court has its own copy or already has that in some form or other before it, I will not bother to read it out.  If the Court asks me to read it out now, I will do so.  It is very brief.  I am in the Court’s hand.

GUMMOW J:   Yes, we are reading it.

MR GLENNAN:   I will read it.

GUMMOW J:   We have read it to ourselves.

MR GLENNAN:   You have read it to yourselves, then I have nothing further to submit, your Honour, and I thank you for your indulgence.

GUMMOW J:   Now, is there anything you want to say, Mr McGovern, in response to his written submissions?

MR McGOVERN:   No, your Honours.

GUMMOW J:   Having heard what has been said and what has been presented in writing in respect of this motion dated 9 December 2002, the Court will order that the hearing of the appeal set down for today be vacated to a date to be fixed by the Registrar, but that that order vacating the hearing for today is on terms that, in any event, the costs of the application for adjournment today be borne by the appellant.  As to the balance of the notice of motion, in particular order 1, that is stood over to the date to be fixed for the hearing of the appeal itself. 

MR GLENNAN:   If the Court pleases.

GUMMOW J:   Is there anything else, gentlemen?

MR McGOVERN:   Is there perhaps a prospect of the appeal being directed to be heard in Sydney, your Honours?

GUMMOW J:   No.  The Full Court sits in Canberra to hear appeals, save on those occasions when we go on circuit to Adelaide, Hobart occasionally, Brisbane and Perth. 

The Court will now adjourn until 10.15 am tomorrow.

AT 10.36 AM THE MATTER WAS ADJOURNED