Mochkin v Deputy Commissioner of Taxation

[2000] FCA 1503

FEDERAL COURT OF AUSTRALIA

Mochkin v Deputy Commissioner of Taxation [2000] FCA 1503

LEVI MOCHKIN  v  DEPUTY COMMISSIONER OF TAXATION FOR THE COMMONWEALTH OF AUSTRALIA

V652 of 2000

RYAN J
MELBOURNE
5 OCTOBER 2000

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V652 of 2000

BETWEEN:	LEVI MOCHKIN Applicant
AND:	DEPUTY COMMISSIONER OF TAXATION FOR THE COMMONWEALTH OF AUSTRALIA Respondent
JUDGE:	RYAN J
DATE OF ORDER:	5 OCTOBER 2000
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The respondent be restrained until the delivery of judgment in the principal proceedings or further order from taking any further steps in recovering the tax at issue in the principal proceedings.

2.        The costs of all parties be reserved.

3.The directions hearing be adjourned to a date to be fixed in conjunction with the delivery of judgment now reserved in the principal proceedings.

4.Liberty be reserved to each party to apply on not less than 48 hours notice in writing to the other party.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V652 of 2000

BETWEEN:	LEVI MOCHKIN Applicant
AND:	DEPUTY COMMISSIONER OF TAXATION FOR THE COMMONWEALTH OF AUSTRALIA Respondent
JUDGE:	RYAN J
DATE:	5 OCTOBER 2000
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This matter raises difficult questions involving the exercise of the court's discretion to grant a stay under the Administrative Decisions (Judicial Review) Act 1977 (Cth) or alternatively, in relation to proceedings brought under s 39B of the Judiciary Act 1903 (Cth).  It seems to me that the applications do raise serious questions to be tried.  Some of those questions are matters which have been agitated in the principal proceedings in which judgment has been reserved.  It is particularly undesirable in those circumstances that I say any more about those issues, but the fact that judgment on them has been reserved and the fact that they have been seriously argued over some four days in proceedings in this Court indicates that they are not insubstantial. 

2. In all of the circumstances of the case, I am persuaded, having regard to the balance of convenience, that it is a proper exercise of the Court's discretion to grant a stay or order that the Commissioner be restrained from taking further steps to recover payment of the tax in dispute in what I have called the principal proceedings, until the delivery of judgment in those proceedings.  Because of the urgency of the matter which has been revealed by the present applications, I will expedite the giving of that judgment as far as I am able.  However, in the meantime, I propose to order that the Commissioner be restrained until the delivery of judgment in the principal proceedings or further order from taking any further step to recover the tax at issue in those proceedings. 

3. I shall reserve the costs of today’s application and adjourn the directions hearing in the present application, that is application number VG 652 of 2000, to a date on which judgment will be given in the principal proceedings which, of course, will be a date to be fixed.  Liberty is reserved to either party to apply on not less than 48 hours notice in writing to the other party.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:

Dated:             5 October 2000

Counsel for the Applicant:	Mr J W de Wijn QC with Mr S Stewart
Solicitor for the Applicant:	Herbert Geer Rundle
Counsel for the Respondent:	Mrs J J Batrouney
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	5 October 2000
Date of Judgment:	5 October 2000