Prebble v Commissioner of Taxation

[2001] FCA 1474

FEDERAL COURT OF AUSTRALIA

Prebble v Commissioner of Taxation [2001] FCA 1474

JEFFREY JAMES PREBBLE v COMMISSIONER OF TAXATION
Q 69 OF 2001

JEFFREY JAMES PREBBLE PTY LTD ACN 010 260 394 AS TRUSTEE FOR PREBBLE NO 2 SUPERANNUATION FUND v COMMISSIONER OF TAXATION
V 715 OF 2001

DOWSETT J
28 SEPTEMBER 2001
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 69 OF 2001

BETWEEN:	JEFFREY JAMES PREBBLE APPLICANT
AND:	COMMISSIONER OF TAXATION RESPONDENT
V 715 OF 2001

BETWEEN:	JEFFREY JAMES PREBBLE PTY LTD ACN 010 260 394 AS TRUSTEE FOR PREBBLE NO 2 SUPERANNUATION FUND APPLICANT
AND:	COMMISSIONER OF TAXATION RESPONDENT
JUDGE:	DOWSETT J
DATE OF ORDER:	28 SEPTEMBER 2001
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.        The motion is dismissed in each matter.

2.        The applicant taxpayers to pay the respondent Commissioner’s costs of both motions.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 69 OF 2001

BETWEEN:	JEFFREY JAMES PREBBLE APPLICANT
AND:	COMMISSIONER OF TAXATION RESPONDENT
V 715 OF 2001

BETWEEN:	JEFFREY JAMES PREBBLE PTY LTD ACN 010 260 394 AS TRUSTEE FOR PREBBLE NO 2 SUPERANNUATION FUND APPLICANT
AND:	COMMISSIONER OF TAXATION RESPONDENT
JUDGE:	DOWSETT J
DATE OF ORDER:	28 SEPTEMBER 2001
WHERE MADE:	BRISBANE

REASONS FOR JUDGMENT

1. There are two tax appeals outstanding, one which was filed in this Registry on behalf of Jeffrey James Prebble, and the other which was filed in the Victorian Registry on behalf of Jeffrey James Prebble Proprietary Limited.  I am told, and accept, that the assessments are alternative in the sense that if one stands, the other will fall.  The Victorian proceedings have been transferred to this Registry, but the taxpayers now seek to have the appeals transferred to Melbourne.  It seems that in Melbourne, Merkel J has two other matters listed for trial in the near future which raise one of the questions arising for determination in these appeals.  It is therefore suggested that there may be some convenience in having the common question in all four cases decided by his Honour.  Although there is a common question in all four cases, there are also differences between them.  It cannot be said that the resolution of the common question will dispose of all four.

2. Merkel J has been approached concerning the matters.  He has not declined to undertake them, but I do not understand him to have gone any further than that.  It is also said that the taxpayer in one of the matters presently before his Honour has applied to vacate the trial dates.  That application has not been determined.  There seems to be no justification for proceeding upon the basis that it will be successful.  The matters in the Queensland Registry are presently on the docket of Cooper J.  His Honour is absent on leave, and so the current applications have come before me as a matter of urgency. 

3. Whilst there may, on occasions, be advantages for the Court and in the administration of justice generally in having one issue disposed of by one judge where it arises in numerous matters, my own experience suggests that this can also sometimes be a disadvantage in that it makes it difficult to focus upon the unique features of each case without the complicating features of the other cases clouding judgment.  In any event, if Merkel J disposes of the question of law in the cases presently on his docket, such disposition will no doubt assist Cooper J when he comes to consider these matters.  I see no compelling reason for transferring these matters to Melbourne merely because they share a common question. 

4. It seems to me that the true motivation lying behind these applications is that the taxpayers have formed the view that they are likely to get a quicker hearing before Merkel J than before Cooper J, given that Cooper J is presently on leave.  One cannot blame a party for seeking an early determination of his or her litigation.  However, if the matter is transferred to Melbourne, it can only be at the expense of some other matter with which Merkel J has to deal.  The effect would be, as I see it, to prefer the present applicants over other unidentified litigants.  I see no reason to take that course.  In the circumstances, I cannot see that any proper basis is demonstrated for transferring the matters to Melbourne.  In coming to that conclusion I note, and take account of the fact that the applicants have themselves chosen to litigate here.  One action was originally commenced in Victoria and one here.  The relevant applicant chose to transfer the Victorian proceedings to Brisbane.

5. In the face of opposition from the Commissioner, I am not willing to transfer these cases to Melbourne.  I am strengthened in my view by the fact that it is not possible to say how Merkel J would dispose of the matters if they were transferred to his list.  It is not clear that he would be able to dispose of them immediately, and I do not believe it appropriate to force him to make a decision as to whether he can do so.  If there were some urgency attaching to the appeals, I may have decided otherwise.

6. I am also asked to consolidate the two appeals.  Prima facie, this seems like a bad idea because they are between different parties and relate to different assessments.  However, it is true that, as I have said, they are alternative assessments, and for that reason it is obviously convenient that they at least be heard together.  However I cannot see any legitimate disadvantage inherent in their being heard together rather than consolidated, other than that advanced frankly by Mr Harrison for the taxpayers:  namely, that it would avoid the taxpayers having to pay fees in respect of both appeals and to file documents in respect of both appeals.

7. There will of course be, in general, separate documentation in any event, given that they are between different parties.  I suspect that any likely saving is minimal.  As to the question of fees, Parliament has prescribed that there should be fees for hearings in this Court.  I do not think it appropriate that I undermine that decision by creating an artificial situation in order to facilitate such a purpose.

8. In the circumstances, the motion will be dismissed.  I order the applicant taxpayers to pay the respondent Commissioner's costs of both motions.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:             19 October 2001

Counsel for the Applicant:	F L Harrison QC M Robertson
Solicitor for the Applicant:	Ebsworth & Ebsworth
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	28 September 2001
Date of Judgment:	28 September 2001