Thomson, R.S. v Commissioner of Taxation

[1989] FCA 599

IN TEE FED- COURT OF AUSTRALIA )

I	1
I

I	NEW SOUTH WALGS REGISTRY	1	GN 1174 of 1988
i	)
I	GENERAL DIVISION	1

BETWEEN :  ROBERT SOMERS TEOMSON

Applicant

AND :  COMMISSIONER OF TAXATION

Respondent

I	CORAM: Einfeld J
DATE:  12 May 1989
i	!	PLACE: Sydney
I
I
1	I
!	M-TEMPORE JIJDGMENT

HIS HONOUR: This is a notice of motion listed today effectively for the striking out of a notice of appeal filed by the applicant against a decision of the Administrative Appeals Tribunal in relation to taxation assessments of the applicant for the years ended 30 June 1980, 1981, 1983 and 1984.

when analysed, does not raise any question of law.

The ground of the notice of motion is that the applicant's notice of appeal does not identify a question of law as required by section 44 of the Administrative Appeals Tribunal Act. The respondent, who is applying for the striking out of the notice of appeal, expands that ground to an assertion that the notice of appeal as presently drafted,

clear to mc that in its present form there is certainly more than an arguable case that a number of the issues do not raise legal questions. Others may raise legal questions although I confess at the moment to finding it difficult to identify what they are. The problem is that the authorities on applications to strike out a pleading require a close examination in order to ascertain whether there is or is not any arguable case at all that could be presented on the pleading. In the circumstances of this matter, both because of the facts that were before the Tribunal and also because the applicant appears in person, this would involve a fairly detailed consideration of the whole of the case which the applicant seeks to make out.

The applicant has asked for and been granted leave to present his argument in writing to which he has added only a few brief remarks orally. A preliminary examination of the written submissions handed up a few moments ago illustrates that in order to determine the notice of motion, I would effectively have to rule on the appeal. Of course the respondent, who has also only just received a copy of these written submissions, has had no opportunity to read them, let alone to address or reply to them.

between questions of fact and questions of law, an issue which, it would

The applicant has also made some written submissions on the differences

amaze the public, has intrigued lawyers since time immemorial. In the circumstances, it seems to me that the best way I can do justice here is to consolidate the notice of motion with the appeal itself and determine both matters together. Of course, if the appeal is dismissed on the ground that no question of law is raised, there will be an identical conclusion in the notice of motion, but that is a matter of procedure

and of no present importance

The applicant has made clear that the written submissions which he has just handed up represent his complete submissions on the appeal as well as on the notice of motion. Be does not wish to be heard further on the appeal although I will, of course, give him the opportunity of replying in writing to the submissions that the respondent will be permitted to make in writing in response to his submissions that have just been handed in.

I therefore give the following directions and make the following orders

in this case:

(1)	The notice of motion filed by the respondent on 30 March seeking the summary dismissal of the appeal is consolidated with the appeal itself.
(2)	I expedite the hearing of the appeal and direct that it be

listed this day.

(3)	I give leave to the applicant to file an amended notice of appeal, to be filed and served by not later than 4 pm on Friday May 19.
( 4 )	Should the applicant wish to make any further submissions in support of any amended notice of appeal, he is to file and serve them by the same time and on the same date.
( 5 )	I direct that the respondent file and serve his written

i .

j ~

submissions in reply to those of the applicant by not later than

4 pm on Friday June 2.

L. 1 :

I direct that the applicant file and serve any written , .

I '

submissions in reply to the submissions of the respondent by not	1 ;	I .
later than 4 pm on Friday June 9.	,
I.

I reserve the question of costs of the notice of motion to be , > ,

determined at the time of determination of the appeal.

*

I certify that th~s and the

precedlng pages are a true copy of the

Reasons for Judgment herein of his Honour

:.	Justice Einfeld
Dated:	1 2 may 19Bq

I