Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue

[2003] VSCA 199

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No.5910 of 1999

THE ROY MORGAN RESEARCH CENTRE PTY. LTD.
	Appellant
v.
COMMISSIONER OF STATE REVENUE	Respondent

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JUDGES:	ORMISTON, PHILLIPS and CALLAWAY, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 November 2003
DATE OF JUDGMENT:	11 December 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 199

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Courts – Practice and procedure – Application for leave to appeal from V.C.A.T. to Trial Division – Leave to appeal refused without reasons – Appeal to Court of Appeal initially dismissed as incompetent but decision reversed by High Court – Appeal to Court of Appeal subsequently allowed and application remitted to Trial Division for hearing and determination – Direction that application be heard by court to hear the appeal, if leave granted – Victorian Civil and Administrative Tribunal Act 1998 s.148(1)(b).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr. R.R.S. Tracey Q.C.	Tanya Cirkovic & Associates
For the Respondent	Mr. R.L. Berglund Q.C. with Mr. P. Solomon	Solicitor to the Commissioner of State Revenue

ORMISTON, J.A.:

1. Having had the benefit of reading the judgment to be delivered by Phillips, J.A. on this appeal, I consider that, for the reasons given by him, the appeal should be allowed and orders made as are there proposed.

PHILLIPS, J.A.:

1. The appellant, to whom I shall refer as “the taxpayer”, is a company engaged in market research and this litigation is over its alleged liability to payroll tax on payments to those engaged by it as interviewers.  In brief, the question is whether those employees fall within the definition of “employees” in the relevant legislation. 

1. On 16 December 1987, the respondent issued an assessment to payroll tax for the period from 1 July 1980 to 31 December 1986.  The taxpayer objected, the objection was disallowed, and on 23 January 1996 the assessment was confirmed by the Administrative Appeals Tribunal (constituted by Mr. G. Gibson, member).[1]  The taxpayer appealed to the Trial Division, but was unsuccessful.[2]  A subsequent appeal to the Court of Appeal also failed, the appeal being dismissed on 24 October 1997.[3]  Special leave to appeal was refused by the High Court on 19 May 1998. 

   [1](1996) 32 A.T.R. 1205.

   [2](1996) 33 A.T.R. 361.

   [3](1997) 37 A.T.R. 528.

1. There were, however, two further assessments which had been issued, one for the period from 1 January 1987 to 30 June 1995 and another for the period from 1 July 1995 to 30 June 1996.  The taxpayer objected to those two assessments also and when its objection was disallowed by the respondent, the objections were referred to the Victorian Civil and Administrative Tribunal for review.  Again the respondent’s assessments were confirmed, and again by a tribunal constituted by Mr. Gibson, who

delivered his decision, giving detailed reasons, on 30 April 1999. From the orders made on 28 May, the taxpayer applied to the Trial Division for leave to appeal under s.148(1) of the Victorian Civil and Administrative Tribunal Act 1998 (“the Tribunal Act”).  The application was heard by Justice Balmford on 29 October 1999 and leave to appeal was refused.  Following common practice, her Honour declined to give reasons for that refusal.

1. From that decision the taxpayer purported to appeal by filing and serving Notice of Appeal on or about 12 November 1999. On 2 July 1999, however, the Court of Appeal had held that no appeal lay from an order of the Trial Division refusing leave to appeal under s.148 of the Tribunal Act:  Rabel v. Eastern Energy Ltd.[4].  Accordingly, and by summons filed on 14 December 1999, the respondent applied in this Court for an order dismissing the taxpayer’s appeal as incompetent and that order was made by two Judges of Appeal on 4 February 2000.  The High Court subsequently granted special leave to appeal and on 9 August 2001 that Court allowed the appeal, set aside the order made on 4 February 2000 and remitted “the matter” to this court for further hearing and determination:  Roy Morgan Research Centre Pty. Ltd. v. Commissioner of State Revenue[5].

   [4][1999] 3 V.R. 45.

   [5](2001) 207 C.L.R. 72.

1. On 30 November 2001, two Judges of Appeal ordered that by consent the taxpayer have leave to appeal nunc pro tunc from the refusal of leave to appeal by Balmford, J. (if and in so far as leave was necessary); and, in further consequence of the High Court’s decision, that the respondent’s application of 14 December 1999 be dismissed with costs and the appeal proceed in accordance with the Rules.  It is that appeal which came on for hearing before us on 20 November 2003.  I mention the date only to emphasise the time that has elapsed since leave to appeal was given; and, whatever may be said in criticism of the taxpayer’s prosecution of the appeal, it does not seem that the respondent either took any steps to hasten the matter.  The delay is perhaps the more disturbing because (we were told by counsel for the taxpayer) an offer was made by the taxpayer some twelve months ago to the respondent, to seek an order by consent allowing the appeal from Balmford, J. and remitting the taxpayer’s application for leave to appeal from the tribunal back to the Trial Division for hearing and determination.  It was an offer that was not accepted.

1. It is in those circumstances that this court must now confront the question whether the taxpayer should have been given leave to appeal to the Trial Division from orders made in the tribunal on 30 April 1999, more than four and a half years ago and in respect of assessments which, at the very least, were not dissimilar to the assessments confirmed by the Administrative Appeals Tribunal on 23 January 1996, almost eight years ago.  There must be reason for concern about the efficacy, and indeed the utility, of a system which not only allows such delays but to some extent engenders them. 

1. The submissions made to us on behalf of the taxpayer served only to add to that concern; for although the taxpayer seeks in its notice of appeal an order from this Court as one would expect – that is say, an order setting aside the order of Balmford, J. and an order in substitution granting the taxpayer leave to appeal from the tribunal to the Trial Division – counsel for the taxpayer urged us not to determine the application for that leave, but to order instead that the  application be remitted to the Trial Division for further hearing and determination on the ground that the original hearing (in October 1999) had plainly miscarried procedurally because of the judge’s failure to give reasons for decision.  Her Honour’s failure to give any reasons was indeed criticised in the High Court and it is now conceded by the respondent to be relevant error. 

1. In the course of argument, Callaway, J.A. pointed out that the Parliament had sought in the Tribunal Act to distribute between the two divisions of this Court the question of leave to appeal and that, as this was such an unusual case, there was much to be said for the view that, as the application for leave to appeal had miscarried for want of reasons, the application should be remitted to the Trial Division for hearing and determination, if only so that this court might, as was proper, have the benefit of reasons for decision before embarking upon an appeal from the order refusing leave.  Despite the obvious force in this observation, I would myself be most reluctant to make any order of remitter in this particular case, with its attendant possibility that should leave be refused a second time by the Trial Division there might be yet another appeal to this Court from that refusal, even if that appeal could itself be brought only by leave.  That is not a course that I can contemplate with equanimity.  The sooner that this procedural dance comes to an end the better, in the interests of all.

1. In my view, an order remitting the matter to the Trial Division would be altogether inappropriate in the circumstances of this protracted litigation unless it were to be coupled with an order that the application for leave to appeal be heard in conjunction with the appeal itself, were leave to be given.  By coupling the two steps, it might be possible to accelerate the final disposition of what is, after all, still no more than an appeal from the tribunal from the orders made in April 1999.  And, given the unusual circumstances, that seemed to me to be the proper course to follow in view of the nature of the underlying dispute between the parties.  My assessment was that to determine whether the taxpayer had an arguable case for appeal from the tribunal might not fall far short of determining the appeal itself.

1. The respondent, however, urged against any remitter of the application for leave to appeal from the tribunal.  Counsel submitted that, on examination of the material before us (which was the material before Balmford, J.), the taxpayer could not demonstrate any chance of success on an appeal from the tribunal on a question of law, so that the only order that this court could properly make was an order which, in effect, refused leave to appeal from the tribunal to the Trial Division. 

1. The application to the Trial Division was commenced by originating motion and prosecuted by summons filed on 2 July 1999, supported by an affidavit of Pole Charles Cooley sworn on 2 July 1999 and a later affidavit of Tanya Cirkovic sworn on 28 October 1999, the latter serving simply to exhibit a draft notice of appeal bearing date 2 July 1999.  The notice of appeal contained some 21 grounds and there is I think much to criticise in these grounds, given that an appeal from the tribunal is permitted only on a question of law.  But in the end, I am not persuaded that the case is necessarily such that we should shut out the taxpayer at this early stage, the more particularly as counsel for the taxpayer indicated the wish to argue that the tribunal erred in law in failing to distinguish on the facts the earlier decisions of Byrne, J. and the Court of Appeal.  It is essentially a matter for the Trial Division to consider (at least in the first instance) whether the taxpayer should have leave to appeal from the tribunal and it is in the Trial Division that the application for leave to appeal can be more fully examined.  Certainly, the judge who is to hear the appeal if leave were to be given will be in the best position to determine whether and to what extent any question of law is involved and doubtless the drafting of the notice of appeal from the tribunal will attract attention in that regard. 

1. For these reasons, and without saying any more about the merits lest it cloud the issue below, I would adopt the course adumbrated earlier.  I would allow the appeal, set aside the orders made by Balmford, J. and remit the taxpayer’s application for leave to appeal from the tribunal to the Trial Division for further hearing and determination, but I would direct at the same time that, subject to any other order or direction of the Trial Division itself, the application for leave to appeal be heard and determined by the Court that will hear the appeal if leave is given.  

1. As to costs, I suggest that the costs of the appeal to this Court from the Trial Division (which include the costs of our granting leave to appeal on 30 November 2001 by virtue of the order then made) can be left to follow the event, so that they will be won or lost according to whether leave to appeal to the Trial Division from the tribunal is finally granted or refused.  The costs to date in the Trial Division (that is to say, the costs which were the subject of the order made by Balmford, J. on 29 October 1999) should be in the discretion of the judge entertaining the matter on remitter.  It is not inconceivable that he or she may grant the leave to appeal but consider that, on the material before her Honour, Balmford, J. was right to refuse leave.

CALLAWAY, J.A.:

1. The circumstances in which this appeal came before the Court on 20^th November 2003 are recorded in the reasons for judgment prepared by Phillips, J.A., which I have read in draft. Subject only to giving counsel for the Commissioner an opportunity to be heard on the question of remitter, I would have allowed the appeal forthwith, set aside the order made by Balmford, J. and remitted the application for leave to appeal pursuant to s.148(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998 to the Trial Division. (I would have allowed the appeal because her Honour gave no reasons. That is not to criticize the course she took, which was in conformity with existing authority and practice.) I would have directed that the application be heard by the judge who would hear the appeal from the Tribunal to the Trial Division if leave were granted.

1. I have been troubled by whether that is still the appropriate course now that we have heard the appeal in full;  but, as the other members of the Court think it is, I do not wish to dissent.  I agree with their Honours as to costs.

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CERTIFICATE

I certify that this and the preceding 5 pages are a true copy of the reasons for judgment of Ormiston, Phillips and Callaway, JJ.A. respectively of the Court of Appeal of the Supreme Court of Victoria delivered on 11 December 2003.

DATED the  day of  2003.

Associate