Sibir v Glanville - [2000] FCA 1108

FEDERAL COURT OF AUSTRALIA
Sibir v Glanville [2000] FCA 1108
PRACTICE AND PROCEDURE – summary dismissal – whether reasonable cause of action pleaded – whether applicant should be given opportunity to replead.
Income Tax Assessment Act 1936 (Cth), ss 177, 185, 187, 188, 189
Fair Trading Act 1987 (NSW), ss 42, 68.
Federal Court Rules, O 20 r 2.
Sibir v Glenville [2000] FCA 968, cited.
General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125, cited.
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87, cited.
ALEX SIBIR v DAREN GLANVILLE & ORS
N 413 of 2000
SACKVILLE J
14 AUGUST 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 413 OF 2000

BETWEEN:

ALEX SIBIR
APPLICANT

AND:

DAREN GLANVILLE
FIRST RESPONDENT

RICHARD CHAN
SECOND RESPONDENT

OHNMAR KHIN
THIRD RESPONDENT

RON THOMPSON
FOURTH RESPONDENT

JUDGE:

SACKVILLE J

DATE OF ORDER:

14 AUGUST 2000

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the respondents’ costs of the proceedings, including the costs of the motion filed on 25 July 2000.
3.The applicant pay the costs of the Commissioner of Taxation, in so far as they are not covered by Order 2.

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 413 OF 2000

BETWEEN:

ALEX SIBIR
APPLICANT

AND:

DAREN GLANVILLE
FIRST RESPONDENT

RICHARD CHAN
SECOND RESPONDENT

OHNMAR KHIN
THIRD RESPONDENT

RON THOMPSON
FOURTH RESPONDENT

JUDGE:

SACKVILLE J

DATE:

14 AUGUST 2000

PLACE:

SYDNEY

REASONS FOR JUDGMENT
THE APPLICATION FOR SUMMARY DISMISSAL

In a judgment delivered on 20 July 2000, I directed that the applicant was to be taken as having filed a statement of claim in these proceedings on 22 June 2000: Sibir v Glenville [2000] FCA 968. (It appears that the first respondent’s name was incorrectly recorded in that judgment.) I gave leave to the respondents, if so advised, to file a motion seeking orders striking out the statement of claim and dismissing the proceedings. I also stood over a motion by the applicant insofar as it sought a stay of proceedings instituted against him in the District Court of New South Wales by the Deputy Commissioner of Taxation. The earlier judgment should be read in conjunction with this judgment.
In the event, the respondents filed a motion seeking, inter alia, orders that the proceedings be stayed or dismissed generally pursuant to Federal Court Rules (“FCR”) O 20 r 2. Order 20 r 2 provides as follows:
“(1) Where in any proceeding it appears to the Court that in relation to the proceeding generally or in relation to any claim for relief in the proceeding –
(a)no reasonable cause of action is disclosed;
(b)the proceeding is frivolous or vexatious; or
(c)the proceeding is an abuse of the process of the Court,
the Court may order…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sibir v Glanville

Details

AGLC: Sibir v Glanville [2000] FCA 1108
Case: [2000] FCA 1108
Decision Date: 14 AUGUST 2000

CaseChat Overview and Summary

Sibir was the applicant in a case before the court, seeking to restrain proceedings brought against him by the Commissioner of Taxation in the District Court of New South Wales. The Commissioner, initially named as the Australian Taxation Office in the proceedings, was later granted leave to intervene. The court had to determine whether to grant the applicant’s motion to restrain the proceedings and, if not, whether the applicant should be ordered to pay the costs of the respondents, including the Commissioner of Taxation.

The court had to decide whether to dismiss the applicant’s motion to restrain the proceedings, as the District Court proceedings appeared to have been resolved by consent orders. The court also had to consider whether the applicant should be ordered to pay the costs of the respondents, including the Commissioner of Taxation. The court examined the application, the evidence provided, and the circumstances in which the Commissioner of Taxation had intervened in the proceedings.

The court concluded that the applicant's motion should be dismissed as the District Court proceedings had been resolved by consent orders. The court found that it was appropriate for the applicant to pay the respondents' costs of the proceedings, including the costs of the motion. The court also ordered the applicant to pay the costs of the Commissioner of Taxation, to the extent that they were not covered by the order in favour of the respondents.

In addition to dismissing the application, the court made specific orders. The court ordered the applicant to pay the respondents’ costs of the proceedings, including the costs of the motion filed on 25 July 2000. The court also ordered the applicant to pay the costs of the Commissioner of Taxation, to the extent that they were not covered by the order in favour of the respondents.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the respondents’ costs of the proceedings, including the costs of the motion filed on 25 July 2000.

3. The applicant pay the costs of the Commissioner of Taxation, in so far as they are not covered by Order 2.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In my earlier judgment, I stood over a motion that had been filed by the applicant seeking an order restraining proceedings that had been brought against him by the Commissioner of Taxation in the District Court of New South Wales. In view of the conclusion I have reached, the motion should be dismissed. In any event, there is evidence that the District Court proceedings have now been resolved by consent orders.CONCLUSION The respondents’ motion for summary dismissal of the proceedings succeeds. The application should be dismissed. The applicant should pay the respondents’ costs of the proceedings, including the costs of the motion filed by them. Mr Williams sought an order for costs in favour of the Commissioner, who was granted leave to intervene in the proceedings in view of the fact that the party initially named as a respondent (the Australian Taxation Office) is not an entity capable of being sued. In the circumstances, I think it appropriate that the applicant should also pay the costs of the Commissioner of Taxation in so far as they are not covered by the order in favour of the respondents.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 413 OF 2000

BETWEEN:	ALEX SIBIR APPLICANT
AND:	DAREN GLANVILLE FIRST RESPONDENT RICHARD CHAN SECOND RESPONDENT OHNMAR KHIN THIRD RESPONDENT RON THOMPSON FOURTH RESPONDENT
JUDGE:	SACKVILLE J
DATE OF ORDER:	14 AUGUST 2000
WHERE MADE:	SYDNEY

JUDGE:	SACKVILLE J
DATE:	14 AUGUST 2000
PLACE:	SYDNEY