Nugawela v Deputy Commissioner of Taxation [No 2]

[2017] WASCA 66

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   NUGAWELA -v- DEPUTY COMMISSIONER OF TAXATION [No 2] [2017] WASCA 66

CORAM:   NEWNES JA

MITCHELL JA

HEARD:   6 APRIL 2017

DELIVERED          :   6 APRIL 2017

FILE NO/S:   CACV 29 of 2016

BETWEEN:   PATRICK ALLAN NUGAWELA

Appellant

AND

DEPUTY COMMISSIONER OF TAXATION
Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :KENNETH MARTIN J

Citation  :DEPUTY COMMISSIONER OF TAXATION -v- NUGAWELA [2015] WASC 468

File No  :CIV 2686 of 2014

Catchwords:

Stay application - Pending application for special leave to appeal - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Appellant:     In person

Respondent:     Mr C Slater

Solicitors:

Appellant:     In person

Respondent:     Australian Government Solicitor

Case(s) referred to in judgment(s):

Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 79

Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681

Mercanti v Mercanti [2017] HCA 1; (2017) 91 ALJR 258

REASONS OF THE COURT:   

(This judgment was delivered extemporaneously on 6 April 2017 and has been edited from the transcript.)

1. On 7 February 2017, this court dismissed an appeal by the appellant from a decision of Kenneth Martin J who ordered that summary judgment be entered for the respondent in the sum of $1,668,164.16, plus interest, owing by the appellant in respect of assessments of income tax and other charges.  The appellant has now applied for an order suspending the enforcement of the judgment pending an application to the High Court for special leave to appeal.

2. It is established that this court has jurisdiction to grant a stay pending the determination of an application for special leave and any subsequent appeal to the High Court.  A stay application is appropriately made to this court, rather than the High Court, in the first instance:  Mercanti v Mercanti [2017] HCA 1; (2017) 91 ALJR 258 [9] and cases there cited. In exercising the jurisdiction to grant a stay, this court applies the same principles as are applied in the High Court on such an application: Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 79, 81 ‑ 85.

3. The applicable principles were summarised by Brennan J in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681, 684 ‑ 685:

   A stay to preserve the subject-matter of litigation pending an application for special leave to appeal is an extraordinary jurisdiction and exceptional circumstances must be shown before its exercise is warranted … In exercising the extraordinary jurisdiction to stay, the following factors are material to the exercise of this Court's discretion.  In each case when the Court is satisfied a stay is required to preserve the subject-matter of the litigation, it is relevant to consider:  first, whether there is a substantial prospect that special leave to appeal will be granted; secondly, whether the applicant has failed to take whatever steps are necessary to seek a stay from the court in which the matter is pending; thirdly, whether the grant of a stay will cause loss to the respondent; and fourthly, where the balance of convenience lies.

4. Obviously, the second consideration is not presently relevant, but the other matters require our attention.

5. In the present case, a stay is not required to preserve the subject matter of the litigation.  It is not suggested, and there is no reason to believe, that if a stay were refused the appeal would be rendered nugatory or that practical difficulties may arise in respect of the relief that may be granted on a successful appeal to the High Court.  The judgment is simply one for a money sum and plainly there is no question as to the capacity of the respondent to repay the money in the event of a successful appeal.  The present application is supported by a very brief affidavit which does not disclose any particular prejudice which the appellant will suffer if a stay is not granted and his appeal to the High Court were to ultimately succeed.  There is no basis for depriving the respondent of a litigant's ordinary entitlement to enforce a judgment pending the determination of any appeal.

6. The appellant refers to the influence of the judgment debt on bankruptcy proceedings.  That impact is not a relevant prejudice which demands the grant of a stay.  Rather, bankruptcy proceedings are simply a consequence of failure to pay a judgment debt.

7. We have also reviewed the appellant's application for special leave to appeal to the High Court.  We are not satisfied that there is a substantial prospect that special leave will be granted on any of the proposed grounds. 

8. On the material before us there are no circumstances that would justify a stay or the suspension of the enforcement of the judgment and the application must therefore be dismissed.