Power v Deputy Commissioner of Taxation (No 2)

Power (the applicant) sought to re-open a previous judgment of the Court of Appeal of New South Wales, which had dismissed his appeal against a decision of the primary judge. The Deputy Commissioner of Taxation (the respondent) was the respondent in the original appeal and the current motion. The dispute concerned whether the Court had proceeded on a misapprehension of the facts or the law, or whether the absence of reference to the applicant's submissions in the original judgment demonstrated a lack of consideration of those submissions.

The central legal issue before the Court of Appeal on the motion was whether the conditions for re-opening a final judgment had been met. Specifically, the Court had to determine if there was evidence of a fundamental mistake in the original decision, either in fact or law, or if the Court had failed to consider a material submission made by the applicant.

The Court of Appeal held that the applicant had not demonstrated that the Court had proceeded on a misapprehension of fact or law. The Court found that the applicant's submissions had been considered, and the absence of specific reference to them in the judgment did not indicate a lack of consideration. The Court reiterated the high threshold for re-opening a final judgment, emphasizing that mere disagreement with the outcome or a re-argument of the case was insufficient.

Consequently, the Court dismissed the applicant's motion and ordered that the applicant pay the respondent's costs of the motion.