Jessida Pty Ltd as Trustee for the mill trust (Recivers & Managers appointed) v Commissioner of Taxation of the Commonwealth of Australia

[1987] FCA 784

LIMITED CIRCULATION

I	I	CATCHWORDS
I	1

PRACTICE AND PROCEDURE - Notice of motion to dismiss proceedings for want of prosecution - motion adjourned.

G2704 of 1987 G2705 of 1987 G2706 of 1987

J

IN THE FEDERAL COURT OF AUSTRALIA	)
) No. G 2704 of 1907
NEW SOUTH WALES DISTRICT REGISTRY 1	No. G 2705 of 1987

) No. G 2706 of 1987

GENESAL DIVISION )

BEmSN:  as Trustee

for the MILL TRUST (Receivers

and Managers appointed)

Applicant

m:	COMMISSIONER OF TAXATION OF THE
COMMONWEALTH OF AUSTRALIA

Respondent

JUM;E MAKING ORDERS	LOCKHART J.
DATE OF ORDER:	15 DEcplBER 1987
WHERE ORDER W:	SYDNEY

MINUTE OF ORDER

TM: COURT ORDERS THAT:

1. The applicant file and serve all affidavits upon which it

seeks to rely in support of its case in matters G2704,	G2705
and G2706, all of 1987, on or before 24 February 1988;

2.	Matters G2704, G2705 and G2706, all of 1987, be	adjourned to
14 March 1988;

3. Leave be granted to the respondent to file and serve notices

of motion to dismiss for want of prosecution matters G2704,
G2705 and G2706 of 1987;

1. The notices of motion, filed and served by the respondent,

pursuant to order 3 made by this Court, be returnable on 14
March 1988;

5.        Leave be granted to the respondent to file and serve notices of motion that it may see fit to file In for matters G2704, G2705 and G2706, all of 1987;

6.        The notices of motion filed and served by the respondent pursuant to order 5 made by this Court, to be returnable on 14 March 1988;

7. Leave be granted to the appellant to file in Court on 15

December 1987 notice of address for service pursuant to Order

52A, rule 11 of the Federal Court Rules;

8. Leave be granted to the applicant to file in court on 15

December 1987 a verified list of documents;

9.        The applicant pay the respondent's costs on the notice of

motion up to and including 15 December 1987; and

10.       The notice of motion is adjourned to 14 March 1988.

m:  - S AND ENTRY OF ORDERS IS DEALT WITH IN ORDER 36 OF

THE FEDERAL COURT RULES.

IN THE FEDERAL COURT OF AUSTRALIA

) No. NG 2704 of 1987

)	m SOUTH
) No. NG 2705 of 1987

) NO. NG 2706 of 1987

GENERAL DIVISION )

m : - B as Trustee

for the MILL TRUST (Receivers

and Managers appointed)

Applicant

m:  COMMISSIONER OF TAXATION OF THE

A -

Respondent

15 December 1987

This is a motion for dismissal of matters NG 2704 to and

including NG 2706 of 1987, for want of prosecution. The moving party is the respondent, the Commissioner of Taxation ("the Commissioner")

and the applicant i s the taxpayer, Jessida Pty. Ltd. as trustee for

the Mill Trust ("Jessida"), Receivers and Managers appointed.

The case has a long history. The objection was transmitted

to the Supreme Court of New South Wales in July 1986. It appears that

the appeal, which came across to this Court by operation of the

1987, on 1

September 1987, was the subject of directions on more than one

occasion before a Master of the Supreme Court. An order for discovery

was made by Master Sharp on 19 August 1987.

..

L .

I have read the order of Master Sharp and I have read the reasons for his judgment which grounded that order. The matter first came into the Tax Directions list in this Court on 9 October 1987 and

was adjourned, by consent, to 2 November 1987. On 2 November it was

again adjourned until 17 November 1987, also by consent. On 17

Hovember 1987 there was a contest between the parties as to the appropriate orders to be made and on that day the Court directed that the applicant file and serve a notice of address for service pursuant to Order 52A of this Court's rules on or before 20 November 1987; that the applicant file and serve a further verified list of documents on or before 4 December 1987; and certain other consequential orders.

Leave was granted to the respondent on 17 November 1987 to file a notice of motion to dismiss the matters for want of prosecution, returnable for 15 December 1987. The applicant did not file a notice of address for service and until today had not filed it, nor had a further verified list of documents been filed by the applicant until today. It was in these circumstances that the

respondent Commissioner took out the motion for dismissal for want	of
prosecution.	It was supported by an affidavit of Julie-Ann Vens, of 8

December 1987, and three affidavits of service proving service of the necessary process upon the applicant at three different addresses, the

address for service, a document intended to cure problems and waste of	need for that being felt, understandably, because of the absence of an
funds of that kind.
On all directions hearings before this Court both parties have been represented, in the case of the applicant, on each occasion
by counsel. When the motion came on for hearing earlier today it was stood down at the request of counsel for the applicant and it resumed a short time ago. I was then informed by counsel for the applicant that the notice of address for service was ready for filing, as was the verified list of documents, and they have been handed to me.
I was also referred by counsel for the applicant to judgments of the Supreme Court of New South Wales and other documents. There is
a large amount of tax involved. The Commissioner has obtained
judgment against the applicant in the Supreme Court of New South Wales !
in respect of the tax assessed. Mareva injunctions and other orders
and injunctions have been made by the Supreme Court of New South Wales
which, amongst other things, place in the hands of the receivers the
assets and property of the taxpayer for various purposes.

Counsel for the applicant stated that the terms of those

orders and injunctions prevent the funds of the taxpayer being used to fund these proceedings and that the work done to date in the matter by

the solicitors for the applicant has been done without reward.

No application has yet been made to the Supreme Court to vary the terms of the injunction so as to release funds for the purpose of

conducting these proceedings, although I am informed by counsel for

the applicant that it is proposed that such an application be made.

Although the Commissioner has plainly made out a case for an

order that the proceeding be dismissed for want of prosecution, in the
circumstances it would be unjust to make that order today. I do not
propose to dismiss the notice of motion, but to adjourn it to 14 March

1966, to which date the main proceeding will also be adjourned.

I direct the applicant to file and serve all affidavits upon

which it proposes to rely in support of its case in matters G2704187,

G2705187 and G2706187 on or before 24 February 1988 and the matters

are adjourned for further directions to 14 March 1988. I give leave to the respondent to file and serve returnable for that day any matters of motion for dismissal for want of prosecution or otherwise that it may see fit to take out.

I order the applicant to pay the costs of the respondent Commissioner up to and including today on the notice of motion. I give leave to the applicant to file in Court on 15 December 1987 the notice of address for service and the verified list of documents.

If these directions have not been complied with then the

applicant has due warning of the fact that if the Commissioner then

seeks an order of the kind which he sought on 15 December 1987, it

would require the strongest evidence to be placed before the Court	to
prevent an order for dismissal	being made.

I certify that this and the

copy of the reasons for judgment	preceding three (3) pages are a true
herein of the Honourable Mr. Justice Lockhart.
Date I 15 December 1987

IN THE FEDERAL COURT OF AUSTRALIA	)
SOUTH AUSTRALIAN DISTRICT REGISTRY	) G56 of 1987

DIVISION GENERAL )

ON APPEAL FROM A SINGLE

JUDGE OF THE FEDERAL

COURT OF AUSTRALIA

B B :  ROGER HAYDON and OXFORD ESTATES PTY. LTD.

Appellants

AND: GREGORY JOHN JACKSON, BARBARA JACKSON, PETER JOHN

JACKSON, TRACEY ELLEN JACKSON, PHILIP GREGORY

JACKSON AND JOSEPHINE JACKSON

First Respondents

AND:  MARTIN ANTON MISCHKULNIG

Second Respondent

AND: MYOORA NOMINEES PTY. LTD.

Thlrd Respondent

CORRIGENDA

Amendment to the Reasons of Pincus	J. In Full Court judgment
delivered 23 December 1987:
Page 6 , para.3, line 5 , replace "Counsel for the Jacksons"	with
"Counsel for the appellants".

.+

Anqela Irwin
Associate to Mr. Justice Plncus
22 February 1988