Re Carmody; Ex parte Glennan

Case [2000] HCA 37

HIGH COURT OF AUSTRALIA

KIRBY J

RE MICHAEL CARMODY IN HIS CAPACITY
AS COMMISSIONER OF TAXATION FOR THE
COMMONWEALTH OF AUSTRALIA & ORS  RESPONDENTS

EX PARTE MICHAEL JOHN GLENNAN  APPLICANT

Re Carmody; Ex parte Glennan [2000] HCA 37
27 June 2000
S116/2000

ORDER

  1. Application for order nisi refused.

  1. The applicant is to pay the respondents' costs.

  1. Certify for the appearance of counsel in chambers.

Representation:

D B McGovern for the first and second respondents (instructed by Australian Government Solicitor)

No appearance for the third respondent

Applicant appeared in person

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Re Carmody; Ex parte Glennan

Constitutional law (Cth) – "Matter" – Divisibility of – Appeal from Administrative Appeals Tribunal to Federal Court – Whether can be restricted to point of law – Whether Court has duty to determine entire matter.

Constitutional law (Cth) – Jurisdiction of Federal Court – Jurisdiction subject to exclusion by other Acts.

Income tax – Practice and procedure – Appeal to Full Court of Federal Court – Whether without jurisdiction – Alternative proceedings involving review by Administrative Appeals Tribunal and appeal to Federal Court – Applicable provisions governing Federal Court in each case.

Income tax – Public Tax Ruling – Duty imposed on Commissioner to abide by Ruling – Whether bound by duty where contradictory order of Federal Court – Whether mandamus available.

High Court – Constitutional writs – Applications for orders nisi for prohibition and mandamus and other relief – Test to be applied – Whether applicant has demonstrated reasonably arguable case.

Administrative law – Administrative Appeals Tribunal – Whether constitutionally permissible to restrict appeal to Federal Court to point of law.

Constitution, s 75(v).
Administrative Appeals Tribunal Act 1976 (Cth), ss 43, 44.
Federal Court of Australia Act 1976 (Cth), s 24.
Income Tax Assessment Act 1936 (Cth), ss 25(1), 25A(1), 170BA.
Taxation Administration Act 1953 (Cth), ss 14ZZ, 14ZZA, 14ZZL, 14ZZQ.
Federal Court Rules, O 52, r 15, O 52, r 10, O 53, r 2.
High Court Rules, O 55, r 2.

  1. KIRBY J.   I have before me an application for an order nisi for constitutional writs (prohibition and mandamus) and for the grant of ancillary relief (certiorari and an extension of time).  The application is made by Mr Michael Glennan ("the applicant").  The respondents are the Commissioner and Deputy Commissioner of Taxation for the Commonwealth (who have appeared to contest the relief sought) and the Judges of the Federal Court of Australia (who have submitted to the orders of this Court).

    Approach to the application

  2. The approach to the application, which rests substantially upon s 75(v) of the Constitution, is not in doubt. That provision of the Constitution enacts that, in all matters "in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth", the High Court shall have original jurisdiction. It is for the applicant to make out a case…

Continue reading Re Carmody; Ex parte Glennan

Sign in free to access the full text

Details
AGLC
Re Carmody; Ex parte Glennan [2000] HCA 37
Case
[2000] HCA 37
Decision Date

CaseChat Overview and Summary

This matter concerned an application for an order nisi for prohibition and mandamus brought by the applicant, Glennan, against the respondents, Carmody and others. The dispute arose from proceedings involving a review by the Administrative Appeals Tribunal (AAT) and a subsequent appeal to the Federal Court concerning income tax matters. The applicant sought to challenge the jurisdiction of the Federal Court and the AAT in relation to the divisibility of a "matter" and the ability to restrict appeals to points of law.

The primary legal issues before the High Court were whether the Administrative Appeals Tribunal Act (AAT Act) and the Federal Court Act permitted the restriction of an appeal from the AAT to the Federal Court to a point of law, and whether the Federal Court's jurisdiction could be excluded by other legislative provisions. Additionally, the Court considered whether the Commissioner of Taxation was bound by a Public Tax Ruling where a contradictory order of the Federal Court existed, and whether mandamus was available in such circumstances. The Court also had to determine the test to be applied when considering applications for constitutional writs, specifically whether the applicant had demonstrated a reasonably arguable case.

Kirby J found that there was no reasonably arguable construction of the AAT Act or the Federal Court Act that would support the applicant's argument that section 44 of the AAT Act constituted an entire code for the hearing of proceedings from the Tribunal by the Full Court of the Federal Court. His Honour concluded that this argument was not reasonably open. The applicant's first, second, and fourth grounds for seeking an order nisi were rejected as not reasonably arguable. The third ground was also rejected, not on its merits, but because it was considered premature, as the same issues would arise in the applicant's application for special leave to appeal.

Consequently, the application for an order nisi was refused. The applicant was ordered to pay the respondents' costs, and counsel's appearance in chambers was certified.

Orders

Orders of the court

1.

Application for order nisi refused.

2.

The applicant is to pay the respondents' costs.

3.

Certify for the appearance of counsel in chambers.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

KIRBY J
I see no reasonably arguable construction of the AAT Act, or of the Federal Court Act, which would lead to such an uncongenial conclusion. In my view, the applicant's argument that s 44 of the AAT Act is an entire code for the hearing by a Full Court of the Federal Court of proceedings from a decision of the Tribunal in that Court is not reasonably open. The application for an order nisi on the fourth ground is therefore refused.Conclusion and orders The result is that I would reject the first, second and fourth grounds (above) upon which the applicant sought the issue of an order nisi. None of them is reasonably arguable. I would reject the third ground without finally determining the reasonable arguability of the point. Even if it is reasonably arguable, that ground is premature given that the same issues will arise before this Court upon the hearing of the applicant's application for special leave to appeal. This separate application at this stage was unnecessary and made for reasons which I have rejected. In the light of these conclusions, it is unnecessary to deal with the application for extension of time. No separate argument was addressed to that issue and it would have presented no obstacle to the applicant if he had otherwise presented an arguable case. The application for an order nisi, in the terms of the draft order presented to the Court, as it has been argued by the applicant, is refused. The applicant must pay the costs of the application. I certify for the appearance of counsel in chambers.

Ratio Decidendi

Legal Principle Established

Established by: KIRBY J

Full text does not contain this section.