Harpas v Commissioner of Taxation

[2002] NSWCA 198

CITATION:	Harpas v Commissioner of Taxation [2002] NSWCA 198
FILE NUMBER(S):	CA 41054/01
HEARING DATE(S):	24 June 2002
JUDGMENT DATE:	24 June 2002
PARTIES :	Demetri Harpas v Commissioner of Taxation
JUDGMENT OF:	Handley JA at 1; Stein JA at 1; Foster AJA at 1

LOWER COURT JURISDICTION :	Supreme Court
LOWER COURT FILE NUMBER(S) :	SC 13349/01
LOWER COURT JUDICIAL OFFICER :	Dunford J

COUNSEL:	Appellant: T Duggan Respondent: D McGovern
SOLICITORS:	Appellant: Cunich Business Lawyers Respondent: Australian Government Solicitor
DECISION:	Appeal dismissed with costs

41054/01
HANDLEY JA
STEIN JA
FOSTER AJA


24 June 2002

DEMETRI HARPAS v COMMISSIONER OF TAXATION

Judgment

1 Handley JA: The Court will dismiss this appeal for the reasons given by the trial Judge. However we also think that the procedure adopted was totally inappropriate in the first place.

2 Although the point was not taken by the Commissioner before Dunford J, the commencement of proceedings for a declaration in the Supreme Court when an action raising the same issue is pending in the District Court is totally inappropriate. If objection had been taken the Supreme Court should have dismissed these proceedings without embarking on the merits. If anyone else is tempted in the future to take proceedings in the Supreme Court for a declaration when an action raising the same issue is pending in the District Court the Court itself or the Commissioner should object to that procedure.

3 Declaratory relief was never intended to divide up or fracture legal proceedings pending in another court from which there is a full appeal on fact and law.

4 The order of the Court is appeal dismissed with costs.

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