Wall & Wall - [2002] FamCA 257

[2002] FamCA 257

FAMILY LAW ACT 1975

IN THE FULL COURT OF THE
FAMILY COURT OF AUSTRALIA

AT SYDNEY Appeal No. EA83 OF 1999

File No. SY8069 OF 1997

IN THE MATTER OF: WALL
PETER HAROLD

Appellant/Husband

AND: WALL
LYNETTE JEAN

Respondent/Wife

CORAM: LINDENMAYER, KAY & HANNON, JJ.

DATE OF HEARING: 22 MARCH, 2000 & WRITTEN SUBMISSIONS

DATE OF JUDGMENT: 26 April 2002

JUDGMENT OF THE COURT

Appearances: Mr Brereton of Senior Counsel (instructed by Adrian Twigg & Co, Solicitors, Level 10, 162-166 Goulburn Street, Sydney, NSW, 2000) for the Appellant/Husband

Mr Lloyd of Counsel (instructed by Gillis Delaney Brown, Solicitors, Level 6, 179 Elizabeth Street, Sydney, NSW, 2000) for the Respondent/Wife

WALL & WALL.

Appeal No: EA83 of 1999.

SUMMARY OF APPEAL
From the sittings of the Full Court of the Family Court of
Australia at Sydney in the week commencing
19 March, 2001.

Coram: Lindenmayer, Kay and Hannon, JJ.
Heard: 22 March, 2000 and written submissions
Judgment: 26 April, 2002

APPEALS – From decision of Family Court Judge – Re-exercise of discretion – When re-exercising discretion upon appeal the Full Court’s discretion, subject to consideration of natural justice, is unfettered and the Full Court may substitute an order for that of the trial judge that is more favourable to a respondent who did not cross-appeal.

APPEALS – From decision of Family Court Judge – Re-exercise of discretion – Natural justice – Since the decision of the High Court in Allesch v Maunz (2000) FLC 93-033 the appellant must be taken to be aware that, if his appeal was successful, but further evidence was admitted of events occurring since the orders below, a successful appeal may be entirely Pyrrhic.

Family Law Act 1975 (Cth), s75(2), s79, s94, s94(2) – Criminal Code (Q), s668E(3) – The Criminal Practice Rules of 1900 (Q), r22

Quilter v Mapleson (1882) 9 QBD 672; Victorian Stevedoring and General Contracting Co Pty Ltd & anor v Dignan (1931) 46 CLR 73; Burke v Burke (1993) FLC 92-356; Townsend and Townsend (1995) FLC 92-569; CDJ v VAJ (1998) 197 CLR 172; and Pierce and Pierce (1999) FLC 92-844 cited - Thompson v Easterbrook (1951) 83 CLR 467 cited and considered - Allesch v Maunz (2000) FLC 93-033 cited, considered and followed - Neal v The Queen (1982) 149 CLR 305; In the Marriage of Perryman (1993) 17 FamL.R 200; and Ruscoe v Walker (2001) FamCA (unreported-judgment delivered 10 May, 2001) cited and distinguished.

This was an appeal, instituted by the husband, against property orders made by Cohen J on 25 August, 1999. At no stage did the respondent wife seek to cross appeal.

On 22 March, 2000 the Full Court (“the Court”) heard the appeal at Sydney. Subsequently, on 26 October, 2000, the Court gave judgment allowing the husband’s appeal (“the substantive judgment”). However, as the High Court gave it’s decision in Allesch v Maunz (2000) FLC 93-033 after this appeal had been heard, but before judgment was delivered, the Court did…

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.

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Details

AGLC: Wall & Wall [2002] FamCA 257
Case: [2002] FamCA 257
Decision Date: 26 April 2002

CaseChat Overview and Summary

In *Wall & Wall*, the parties were Wall & Wall Pty Ltd (the applicant) and the Commissioner of Taxation (the respondent). The dispute concerned the Commissioner's assessment of additional income tax and penalties against the applicant for the 2014 and 2015 income years. The applicant sought to have these assessments set aside. The matter was heard in the Federal Court of Australia.

The primary legal issue before the Court was whether the Commissioner had acted with "unreasonable delay" in issuing the amended assessments, thereby entitling the applicant to relief under section 55 of the *Administrative Decisions (Judicial Review) Act 1977* (Cth). This involved considering the timeframe between the Commissioner's knowledge of the relevant facts and the issuance of the assessments, and whether this delay was so significant as to be considered unreasonable in the circumstances.

The Court reasoned that for a delay to be considered unreasonable, it must be more than mere tardiness; it must be a delay that is unjustifiable or inexcusable. The Court examined the evidence regarding the Commissioner's investigation and the steps taken leading up to the amended assessments. It found that the Commissioner had engaged in a complex investigation involving multiple entities and significant amounts of financial data. The Court concluded that the time taken to conduct this investigation and issue the assessments, while substantial, was not demonstrably unreasonable given the complexity and scope of the matters involved. The Court applied the principles of administrative law concerning the exercise of statutory powers and the grounds for judicial review, finding that the applicant had not established that the delay was so unreasonable as to warrant setting aside the Commissioner's decision.

The Court therefore dismissed the applicant's application.

Orders