Power v Deputy Commissioner of Taxation (No 2)

[2014] NSWCA 77

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Power v Deputy Commissioner of Taxation (No 2) [2014] NSWCA 77

Hearing dates:

On the papers

Decision date:

25 March 2014

Before:

Barrett JA; Ward JA; Emmett JA

Decision:

(1) The motion be dismissed.

(2) The applicant pay the respondent's costs of the motion.

Catchwords:

PROCEDURE - judgments and orders - amending, varying and setting aside - re-opening to reconsider a point - whether the Court proceeded on a misapprehension as to the facts or the law - whether the absence of reference to a party's submission demonstrates a lack of consideration of that submission

Legislation Cited:

Taxation Administration Act 1953 (Cth), s 269-25 in Div 269, Sch 1

Cases Cited:

260 Oxford Street Pty Limited v Premetis [2006] NSWCA 96
Blacktown Workers' Club Ltd v O'Shannessy [2011] NSWCA 265
De L v Director-General, NSW Department of Community Services (No 2) (1997) 190 CLR 207
Jolly v District Council of Yorketown (1968) 119 CLR 347
Rogers v The Queen (1994) 181 CLR 251
The City of Sandringham v Rayment (1928) 40 CLR 510

Category:

Interlocutory applications

Parties:

Kevin Patrick Power (Applicant)
Deputy Commissioner of Taxation (Respondent)

Representation:

Counsel:
GO Reynolds SC with JT Johnson and C Burnett (Applicant)
JS Gleeson SC with DM Jay (Respondent)
Solicitors:
Beazley Singleton (Applicant)
ATO Legal Services Branch (Respondent)

File Number(s):

2012/368875

 Decision under appeal 

Jurisdiction:

9003

Citation:

Power v Deputy Commissioner of Taxation [2013] NSWCA 428

Date of Decision:

2013-12-12 00:00:00

Before:

Barrett, Ward and Emmett JJA

File Number(s):

2012/368875

Judgment

1. THE COURT: On 12 December 2013, having heard oral argument on 5 November 2013, the Court ordered that the appeal in these proceedings be dismissed with costs and published its reasons for making those orders (the Principal Reasons). In these reasons, terms used will have the same meanings as in the judgment of Emmett JA in the Principal Reasons.

1. By notice of motion filed on 23 December 2013, the appellant has applied for an order that the orders made on 12 December 2013 be set aside and, in lieu thereof, that there be an order that the appeal be allowed with costs. The basis for the application is the assertion that, in its reasons, the Court failed to deal with an argument advanced on behalf of Mr Power.

1. There is no doubt that the Court has power to re-open a judgment or order to reconsider a point. It may do so if it is convinced that, in the earlier consideration of the point, it has proceeded on a misapprehension as to the facts or the law, or there is some matter calling for review, or the interests of justice so require. However, a heavy burden rests upon the applicant for re-opening to show that such an exceptional course is required, on the assumption that there has been no fault on the part of the applicant (see De L v Director-General, NSW Department of Community Services (No 2) (1997) 190 CLR 207 at 215). The Commissioner has not suggested that there has been any fault on the part of Mr Power that would preclude his making this application.

1. There are two competing objectives of the law that must be considered when dealing with an application for the court to reconsider a point that it has already decided. The first is that justice ought to be done and ought to be seen to be done. Accidents and oversights can sometimes occur that will occasion injustice if they are not repaired. In so far as the High Court of Australia may grant leave to appeal from an intermediate appellate court, an intermediate appellate court such as this Court is not the final court of appeal. Nevertheless, any injustice resulting from an oversight by an intermediate appellate court may be difficult to remedy. Competing against that objective is the objective of finality of litigation: interest reipublicae ut sit finis litium (see Rogers v The Queen (1994) 181 CLR 251 at 273). The object of finality reinforces the respect that should be shown to orders that are final on their face, addressed to the world at large, and upon which conduct may be ordered in reliance upon their binding authority (see De L v Director General, NSW Department of Community Services (No 2) (1997) 190 CLR 207 at 215).

1. In the present case, Mr Power has not endeavoured to identify an accident or oversight that would occasion an injustice or a misapprehension on the part of the Court as to the facts or the law. The mere absence of a reference in reasons for judgment to a submission made by a party, or to cases cited by that party in support of the submission, does not mean that the Court has not given consideration to the submission. An intermediate appellate court is bound to give only such reasons as are required for a proper determination of the proceedings before it and to enable the parties, and, if appropriate, the High Court, to see clearly why the proceedings were decided in the way they were decided (see 260 Oxford Street Pty Limited v Premetis [2006] NSWCA 96 at [135]).

1. In essence, Mr Power is inviting the Court to give further consideration to the oral submissions made by Senior Counsel on his behalf on 5 November 2013. The Court does not consider that its jurisdiction to re-open the proceedings has been enlivened in the present circumstances. Nevertheless, it is not inappropriate to make some brief observations about the submission in question.

1. The essence of the submission was that, on the proper construction of s 269-25 of the Administration Act, the Notice did not satisfy the prerequisites of that section (see the Principal Reasons at [18]). Mr Power submitted that the primary judge had erred in concluding that the Notice satisfied the requirement of s 269-25 that such a notice must:

• set out what the Commissioner thinks is the unpaid amount of a company's liability;
• state that the recipient is liable to pay the Commissioner an amount equal to that unpaid amount because of an obligation that the Director has or had under Division 269; and
• explain the main circumstances in which the penalty will be remitted.

1. Mr Power's submission involved two arguments. The first was that satisfaction of the prerequisite in s 269-25 that a particular matter be stated requires that that matter be set out fully in the correct form or be expressed clearly, or be specified. Mr Power cited dictionary definitions and the canon of statutory interpretation that the normal and ordinary meaning of words is generally the meaning that is adopted in legislation.

1. The usefulness of dictionary definitions can sometimes be overstated. A dictionary undeniably provides common uses of words, but it does not necessarily provide authoritative guidance in the construction of statutes (see Blacktown Workers' Club Ltd v O'Shannessy [2011] NSWCA 265 at [37]).

1. The second argument was that there is a canon of construction according to which notices, the giving of which is a condition precedent to recovery by court action, must strictly comply with any legislative requirements as to content. He cited TheCity of Sandringham v Rayment (1928) 40 CLR 510 at 516 and Jolly v District Council of Yorketown (1968) 119 CLR 347 at 350-352. Each of those cases was concerned with the recovery of moneys by a local governmental council from the owner of land in the council's area. The language of the relevant provisions of the local government legislation was held to require strict performance of the conditions upon which moneys were recoverable. In both cases, the High Court confirmed that all of the requirements of the respective legislative provisions must be fulfilled before the ratepayer could be held liable to contribute the moneys in question.

1. It is not to be doubted that, if a prerequisite for the commencement of proceedings against a director or former director of a company is the giving of a notice specified by statute, all of the requirements of that statute as to the contents of the notice must be satisfied. That principle was assumed in formulating the earlier reasons. The question that arose in the appeal, however, was not whether strict compliance with the requirements of s 269-25 was necessary. The question was what, on the proper construction of s 269-25, the requirements of that provision are. The Court concluded that the Notice stated everything that, on its proper construction, s 269-25 required.

1. The two decisions of the High Court cited on behalf of Mr Power can be distinguished from the present case in so far as the notices in question in those decisions omitted to state matters that were, on the proper construction of the relevant statute, required by the statute. Given the earlier reasoning, and the conclusions reached, it was unnecessary to refer to either of the decisions of the High Court. They do not compel a conclusion different from the one that the Court reached.

1. In the circumstances, the present motion should be dismissed. The Court heard no oral argument in relation to the motion, but received written submissions and materials. Nevertheless, further costs have been incurred. Mr Power should pay the Commissioner's costs of the motion.

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Decision last updated: 27 March 2014