Remuneration Planning Corporation Pty Ltd v Commissioner of Taxation for the Commonwealth

[2001] FCA 1232

FEDERAL COURT OF AUSTRALIA

Remuneration Planning Corporation Pty Ltd v Commissioner of Taxation for the Commonwealth [2001] FCA 1232

REMUNERATION PLANNING CORPORATION PTY LIMITED v COMMISSIONER OF TAXATION FOR THE COMMONWEALTH
N 362 of 2001

SACKVILLE, FINN & KENNY JJ
SYDNEY
29 AUGUST 2001

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 362 OF 2001

BETWEEN:	REMUNERATION PLANNING CORPORATION PTY LIMITED APPLICANT
AND:	COMMISSIONER OF TAXATION FOR THE COMMONWEALTH RESPONDENT
JUDGES:	SACKVILLE, FINN & KENNY JJ
DATE OF ORDER:	29 AUGUST 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.That leave to appeal be refused.

2.The applicant pay the respondent’s costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 362 of 2001

BETWEEN:	REMUNERATION PLANNING CORPORATION PTY LIMITED APPLICANT
AND:	COMMISSIONER OF TAXATION FOR THE COMMONWEALTH RESPONDENT

JUDGES:	SACKVILLE, FINN & KENNY JJ
DATE:	29 AUGUST 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The Court is minded not to grant leave to appeal.  I shall give very brief reasons for refusing leave: cf The Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue [2001] HCA 49, at [26].

2. It has been accepted by Mr Connor who appears for the applicant that leave to appeal is required in this case.  Leave to appeal is sought in relation to orders made by the primary Judge striking out certain paragraphs in the amended application. 

3. It is well established that in determining whether to grant leave to appeal from an interlocutory judgment, especially one relating to practice and procedure, the Court takes into account not merely whether the decision is attended by doubt but whether, if wrong, it would work substantial injustice: Federal Commissioner of Taxation v Hydrocarbon Products Pty Ltd (1987) 14 FCR 359, at 374-375.

4. In our opinion, the applicant has not demonstrated that a refusal of leave to appeal would occasion any substantial injustice.

5. The discussion with Mr Connor this morning indicated that the claim by the applicant for relief in respect of Public Ruling 1999/5 is not connected with its claim for relief based upon estoppel pleaded in the amended statement of claim.  Nor are we persuaded that a refusal to grant leave to appeal from the ruling by the primary Judge would cause any other substantial injustice to the applicant.  Mr Connor submitted that the applicant would be prejudiced because it seeks to make out a case of damage to its commercial reputation flowing from Public Ruling 1999/5.  But such a case has not yet been pleaded.  Nor has it been supported by evidence, either before the primary Judge or this Court.

6. It may well be that it is open to the applicant to amend its pleadings to raise the issues identified by Mr Connor.  There is nothing in the orders made by the primary Judge that would prevent any such application.  Whether it is acceded to is a matter for his Honour to determine, should such an application be made.

7. In the absence of any showing of substantial prejudice, we take the view that leave to appeal should be refused.  I propose that the Court so order.

   FINN J:   I agree.

   KENNY J:  I agree.

   SACKVILLE J:   The application for leave to appeal will be refused.  The applicant will be ordered to pay the respondent's costs.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice SACKVILLE, FINN & KENNY JJ.

Associate:

Dated:             29 August 2001

Counsel for the Applicant:	Mr K Connor with Ms V Culkoff
Solicitor for the Applicant:	Gilbert & Tobin
Counsel for the Respondent:	Mr S Gageler SC with Ms R Henderson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	29 August 2001
Date of Judgment:	29 August 2001