//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2024] ACTCA 21
respondent. The application for leave to appeal filed on 24 June 2024 was dismissed. The applicant was ordered to pay the respondent’s costs: [25].
2 cited instruments linked from this judgment.
The Court refused a separate appeal application about who could represent Bennelong because the underlying case had already been dismissed. The judge reasoned that an interlocutory appeal is meant to help a case proceed properly to its final hearing. Once that hearing has ended, a separate appeal about an earlier step has no practical purpose. The alleged error could instead be raised in an appeal against the dismissal itself. The judge also concluded that the application would fail for lack of utility even if the rules did not technically prevent it.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,105 words · generated 08/10/2026
Bennelong Medical Pty Ltd was the plaintiff in proceedings against the Commissioner of Taxation. The issue before Elkaim AJ was not the underlying tax dispute. It was whether Dr Michael Quach could pursue a separate application for leave to appeal an interlocutory ruling after the substantive proceedings had already been dismissed.
On 18 June 2024, Loukas-Karlsson J dismissed Dr Quach’s application under r 30(4) of the Court Procedures Rules 2006 (ACT) to represent Bennelong and continue the case on its behalf [2]–[3]. The Court of Appeal application seeking leave to appeal that ruling was filed on 24 June 2024 [4].
In the meantime, the underlying proceedings went to trial before Mossop J on 21 June 2024. Bennelong had no lawyer and no person authorised under r 30(4) to appear for it. Mossop J considered r 1505(2), which provides that if a plaintiff does not appear when trial starts, the court may dismiss the plaintiff’s originating process. Exercising that discretion, Mossop J dismissed the proceedings [8]–[10].
Elkaim AJ considered this sequence decisive. The leave application concerned an interlocutory ruling in proceedings that had since ended. The judge dismissed the application and ordered the applicant to pay the Commissioner’s costs [24]–[25].
The judgment records some potentially relevant procedural context. Mossop J’s dismissal had been entered as judgment on 9 July 2024. Elkaim AJ noted that r 1505(5) allowed an application to amend or set aside a judgment made under that rule, if made within seven days after judgment was entered. That period had not elapsed at the time of Elkaim AJ’s decision [19]–[20]. The judgment also records that Dr Quach had said he lodged an appeal against Mossop J’s decision [18]. These matters explain the procedural setting; they are not the basis of the order dismissing the application before Elkaim AJ.
The court’s central reasoning was about the purpose of an interlocutory appeal. Elkaim AJ said the requirement for leave helps ensure court proceedings are heard efficiently and expeditiously and are not fragmented by appeals at different stages [15]. The judge reasoned that an interlocutory appeal is ordinarily useful because it can correct a ruling before the final hearing proceeds, avoiding the risk that an erroneous interlocutory decision affects that hearing [16].
But the underlying hearing had already ended. Mossop J had dismissed the proceedings under r 1505(2). Elkaim AJ therefore considered there was no longer a substantive hearing for a separate interlocutory appeal to put on a correct footing. In the judge’s words, “there is no point in an appeal from an interlocutory decision” after the final hearing has been disposed of [16].
The judgment also identifies an alternative procedural route for alleging that the earlier ruling was wrong. Elkaim AJ said that an appeal from a final decision may include a ground alleging that an interlocutory decision was wrong and affected the outcome [17]. Dr Quach said he had filed an appeal against Mossop J’s decision, and the judge considered that the alleged errors by Loukas-Karlsson J could be raised in that appeal, provided Bennelong was represented appropriately [18], [22]. This is an explanation of the proper procedural context as the judge saw it, not a finding about the merits of any challenge to either earlier decision.
Dr Quach argued that the rules governing leave to appeal did not expressly prohibit an appeal application after dismissal of the substantive proceedings [14]. Elkaim AJ acknowledged that the relevant rules did not state that such an application could not be made in that situation [14]. The judge nevertheless considered that the argument did not answer the problem of practical utility. The decision gave two connected grounds: first, the judge did not consider a separate appeal could be pursued in proceedings that had been dismissed; second, even if that technical view were wrong, a separate interlocutory appeal had no useful purpose once the substantive proceedings had ended [24(a), (c)].
Dr Quach also relied on Annetts v McCann (1990) 170 CLR 596, quoting its discussion of procedural fairness and the need for clear legislative intention to exclude natural justice [12]–[13]. Elkaim AJ recorded and addressed the submission, but the conclusion rested on the procedural purpose and utility of the proposed appeal. The judgment does not set out a broader ruling about the general operation of natural justice.
The judgment does not describe a change to the governing appeal rules. It identifies the existing framework in pt 5.4 of the Court Procedures Rules, including the requirements for an application for leave to appeal, and notes that the rules did not expressly address the precise situation before the court [14]. The decision is therefore best understood as an application of appellate-procedure principles to a particular procedural sequence, not as a stated amendment or replacement of a rule.
Before this decision, the court had an interlocutory ruling refusing Dr Quach permission to represent Bennelong, followed by dismissal of the substantive proceedings because no authorised person appeared for the company at trial [2]–[10]. The unresolved question for Elkaim AJ was whether the earlier interlocutory ruling could still be appealed separately after that dismissal.
The judgment’s answer was that the appeal route should ordinarily be linked to the substantive outcome once that outcome has been reached. Alleged error in the interlocutory decision could be raised in an appeal from the dismissal, if said to have affected the result [17]–[18]. The court also gave an alternative conclusion based on utility, namely that the separate appeal would serve no purpose after the final hearing [24(c)].
The decision should not be read as deciding that every procedural challenge after dismissal is impossible in all circumstances. The judge expressly considered the possibility that the dismissed proceedings could potentially be revived through r 1505(5), and observed that the time period for an application under that rule had not elapsed [19]–[20]. Nor did the court determine the merits of an appeal against Mossop J’s dismissal. The judgment’s focus was the separate application before Elkaim AJ.
At [15], Elkaim AJ explained the purpose of requiring leave for interlocutory appeals: proceedings should be efficient and expeditious, and should not be fragmented. In plain English, the court sought to avoid separate appeals disrupting the progress of the main case.
At [16], the judge said that the purpose of an appeal from an interlocutory order is to allow the final hearing to proceed on a correct basis. The judge then stated: “If, however, the final hearing has been disposed of, there is no point in an appeal from an interlocutory decision.” The practical point is that a proposed correction to an earlier step must have some continuing relevance to the proceeding or to a live appeal from its outcome.
At [17], the judge clarified that interlocutory errors do not necessarily become unreviewable. They may be raised as grounds in an appeal against the final decision, where the appellant alleges that the interlocutory ruling was wrong and affected the outcome. This passage is important because the decision rejects a separate appeal in the circumstances before it without saying that the earlier ruling could never be challenged.
At [19]–[20], the judge referred to r 1505(5), under which a court may amend or set aside a judgment entered because of r 1505, on an application made within seven days after entry of judgment. The court file showed that judgment had been entered on 9 July 2024, so the seven-day period had not yet elapsed. This observation supplies procedural context and indicates that the dismissal was not necessarily incapable of being revisited under the rule.
At [24], the judge summarised the decision in three parts: the separate appeal could not be made in proceedings that had been dismissed; alleged interlocutory error could be raised as part of an appeal from the substantive result; and, even if the technical conclusion about availability were wrong, there was no triable issue warranting leave because the separate appeal had no practical purpose.
The reasoning is most directly engaged by a procedural sequence with these features: a party seeks leave to appeal an interlocutory ruling; the substantive proceeding is then dismissed before that leave application is decided; and the proposed appeal is pursued separately from an appeal about the dismissal. These were the circumstances identified in [4]–[11] and addressed in [24].
The decision is particularly relevant where the stated purpose of the interlocutory appeal would have been to affect how the substantive hearing proceeded. Elkaim AJ’s reasoning depends on the fact that the hearing had already concluded and the proceeding had been dismissed [16]. If an appeal from the substantive decision is also available or has been commenced, the judgment identifies that as the context in which alleged interlocutory error may be raised [17]–[18].
The judgment also involves a company plaintiff that was unrepresented at trial because the proposed representative had not obtained leave under r 30(4). Mossop J relied on r 1505(2) to dismiss the proceeding when the plaintiff did not appear through an authorised representative [8]–[10]. Those facts explain how the underlying action ended, but the principal reasoning in Elkaim AJ’s decision concerns the utility and procedural form of an appeal after that dismissal.
The judgment does not establish that every appeal concerning an interlocutory decision becomes pointless whenever a proceeding ends. Its reasoning links the lack of utility to the intended function of this appeal: preparing the substantive matter for a hearing that had already taken place. The particular procedural rules, the nature of the interlocutory ruling, and the existence or status of any appeal from the final outcome may therefore matter to how the reasoning applies.
The supplied judgment contains no information about later courts’ treatment of this decision. It would therefore be unsupported to say that a later court has followed, applied, distinguished, or rejected it.
Elkaim AJ did address QE Family Pty Ltd v Peter Warren Automative (t/as Mercedes-Benz Macarthur) [2024] FedCFamC2G 172, which Dr Quach submitted was binding [23]. The judge rejected that submission, explaining that Neville J had decided a matter before him and had not purported to determine all proceedings in which Dr Quach sought to represent a company. Elkaim AJ added that such a ruling would not have extended to all those other proceedings [23]. That discussion concerns the claimed effect of QE Family, not later treatment of the present judgment.
The judgment also refers to earlier decisions in the Bennelong dispute, including Bennelong Medical Pty Ltd v Commissioner of Taxation [2023] ACTSC 74 and Bennelong Medical Pty Ltd v Commissioner of Taxation (No 5) [2024] ACTSC 194 [2], [6]. Those decisions form part of the procedural history. They are not examples of later courts treating the decision in [2024] ACTCA 21.
The judgment does not determine the merits of the interlocutory decision refusing Dr Quach leave to represent Bennelong. It decides only that the separate application for leave to appeal that interlocutory ruling could not proceed in the circumstances after dismissal of the substantive proceedings [24]–[25].
Nor does it determine the merits or outcome of any appeal from Mossop J’s dismissal. Elkaim AJ records that Dr Quach said such an appeal had been lodged and suggests that it could be the procedural context for raising alleged error in Loukas-Karlsson J’s ruling [18], [22]. The judgment does not state the grounds of that appeal or whether it was validly constituted.
The decision does not resolve what would happen if the substantive proceedings were revived under r 1505(5). Elkaim AJ observed that the rule allowed a time-limited application to amend or set aside the judgment, and that the period had not elapsed [19]–[20]. The judgment does not say whether any such application was later made or what its outcome would be.
Finally, the reasons do not provide a broad account of how the rules for interlocutory appeals operate in every procedural setting. The judge’s conclusions are tied to the fact that the substantive proceedings had been dismissed and to the stated function of an interlocutory appeal in allowing a later hearing to proceed on a correct basis [15]–[16], [24]. The judgment also leaves open, in its alternative reasoning, the technical question whether a separate appeal might be available despite the dismissal, because it concludes that the application would still fail for lack of practical utility [24(c)].
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title: Bennelong Medical Pty Ltd v Commissioner of Taxation (No 6) Citation: [2024] ACTCA 21 Hearing Date: 11 July 2024 Decision Date: 11 July 2024 Before: Elkaim AJ Decision: (1) The application for leave to appeal filed on 24 June 2024 is dismissed. (2) The applicant is to pay the respondent’s costs of the application. Catchwords: APPEAL – APPLICATION FOR LEAVE TO APPEAL – Whether appeal can be made from an interlocutory decision when substantive proceedings have been dismissed – whether an appeal from an interlocutory decision separate from an appeal of the substantive matter is pointless Legislation Cited: Court Procedures Rules 2006 (ACT) pt 4 5, div 5.4, rr 30, 1505 Supreme Court Act 1933 (ACT) s 37J Cases Cited: Annetts v McCann (1990) 170 CLR 596 Bennelong Medical Pty Ltd v Commissioner of Taxation [2023] ACTSC 74 Bennelong Medical Pty Ltd v Commissioner of Taxation (No 5) [2024] ACTSC 194 QE Family Pty Ltd v Peter Warren Automative (t/as Mercedes- Benz Macarthur) [2024] FedCFamC2G 172 Parties: Bennelong Medical Pty Ltd (Appellant) Commissioner of Taxation (Respondent) Representation: Counsel Self-represented (Appellant) Jason Moffett (Respondent) Solicitors Self-represented (Appellant) Australian Government Solicitor (Respondent) File Number: ACTCA 18 of 2024 ELKAIM AJ:
I am sitting in this matter as a single judge of appeal pursuant to s 37J of the Supreme Court Act 1933 (ACT).
On 18 June 2024, Loukas-Karlsson J dismissed an application made by Dr Michael Quach who was seeking leave to represent Bennelong Medical Pty Ltd and continue an action on its behalf (Bennelong Medical Pty Ltd v Commissioner of Taxation [2023] ACTSC 74).
Bennelong Medical Pty Ltd (Bennelong) was the plaintiff in a suit brought against the Commissioner of Taxation (the Commissioner) but was not represented by a lawyer. This prompted the application made by Dr Quach. The application was made pursuant to r 30(4) of the Court Procedures Rules 2006 (ACT) (the Rules).
Following the dismissal of his application under r 30(4), Dr Quach filed an application in the ACT Court of Appeal on 24 June 2024, seeking leave to appeal from the above decision of Loukas-Karlsson J.
There are a number of decisions of the ACT Supreme Court dealing with the dispute between Bennelong and the Commissioner. I do not think I need to refer to those decisions. This is because there is a fundamental problem with the application, which I think must lead to its termination.
After Loukas-Karlsson J refused leave for Dr Quach to represent Bennelong, the action between Bennelong and the Commissioner came on for hearing before Mossop J on 21 June 2024 (Bennelong Medical Pty Ltd v Commissioner of Taxation (No 5) [2024] ACTSC 194).
At the commencement of the hearing today, Dr Quach handed up written submissions concerning the jurisdiction of this Court. The Commissioner’s objections to jurisdiction were disposed of by Mossop J. The question needs no further consideration.
Justice Mossop, on 21 June 2024, was faced with the circumstance that the plaintiff (Bennelong) was not represented by a lawyer or by any person that had been given leave to represent the company under r 30(4) of the Rules.
Because the effect of the orders made by Loukas-Karlsson J was that there was no appearance on behalf of Bennelong when the trial started, Mossop J considered the application of r 1505(2). This rule states: If the plaintiff does not appear when the trial starts, the court may dismiss the plaintiff’s originating process and the defendant may call evidence to establish an entitlement to judgment under a counterclaim against the plaintiff, in the way the court directs.
Justice Mossop recognised that r 1505(2) contained a discretionary power. He considered the various factors which he thought relevant to the exercise of the discretion, and having done so, came to the conclusion at [27] that “it is clearly appropriate to dismiss the proceedings under r 1505(2)”.
The result of Mossop J’s decision is that the proceedings came to an end. These being the same proceedings in which Dr Quach brought the application heard by Loukas- Karlsson J, there are no longer existing proceedings in which Dr Quach can pursue his application for leave to appeal.
Dr Quach’s response to this point was that the issue was one of statutory interpretation. He said that unless the rules relating to leave to appeal specifically stated that there could not be an appeal of an interlocutory decision if the whole of the proceedings had otherwise been dismissed, then an appeal against the interlocutory decision was still available. He referred me to the decision of the High Court in Annetts v McCann (1990) 170 CLR 596 (Annetts), and specifically to 598: It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment: Commissioner of Police v. Tanos; Twist v. Randwick Municipal Council; Heatley v. Tasmanian Racing and Gaming Commission; J. v. Lieschke; Haoucher v. Minister for Immigration and Ethnic Affairs. In Tanos, Dixon C.J. and Webb J. said that an intention on the part of the legislature to exclude the rules of natural justice was not to be assumed nor spelled out from "indirect references, uncertain inferences or equivocal considerations". Nor is such an intention to be inferred from the presence in the statute of rights which are commensurate with some of the rules of natural justice: Baba v. Parole Board of New South Wales. In Kioa v. West, Mason J. said that the law in relation to administrative decisions "has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention." In Haoucher, Deane J. said that the law seemed to him "to be moving towards a conceptually more satisfying position where common law requirements of procedural fairness will, in the absence of a clear contrary legislative intent, be recognised as applying generally to governmental executive decision-making". (Citations omitted.)
I take Dr Quach’s reliance on Annetts to be to the effect that, as a public official, I should not dismiss his application for leave to appeal unless it is “excluded by plain words of necessary intendment”.
There is no doubt that the decision of Loukas-Karlsson J was an interlocutory decision. This meant that leave to appeal from the decision was necessary. The rules concerning leave to appeal are to be found in pt 5.4 of the Rules, and in particular in div 5.4.2. This division sets out the requirements for an application for leave to appeal. It does not state that an application for leave to appeal cannot be made where the substantive proceedings have been dismissed. This is Dr Quach’s point.
However, in considering his point it is necessary to go back to the fundamental reason behind the necessity to obtain leave to appeal from an interlocutory decision. The administration of justice requires that cases be heard efficiently and expeditiously and are not fragmented. If leave to appeal interlocutory decisions was not required, the conduct of a case could be indefinitely extended if appeals could be heard at any point in a case’s path to final hearing.
Further, the entire point of an appeal in respect of an interlocutory order is to enable the final hearing to proceed on a correct basis. If the interlocutory decision was wrong, then it could infect the final hearing. If, however, the final hearing has been disposed of, there is no point in an appeal from an interlocutory decision.
This is not to say that errors in interlocutory decisions cannot be considered on an appeal of the final decision. An appeal of a final decision will frequently include, as a ground of appeal, an allegation that an interlocutory decision was wrong and affected the outcome of the matter. But, to repeat, the ground would be part of the grounds of appeal to the dismissal of the substantive proceedings.
Dr Quach, in discussion, said that he had lodged an appeal against the decision of Mossop J. If correct, there would be no reason, provided he obtained leave to represent the company, or Bennelong had a lawyer, for the grounds of appeal to not include errors asserted to have been made by Loukas-Karlsson J. This in my view would be the correct approach to take in the light of the substantive proceedings having been dismissed.
I would add that the proceedings dismissed by Mossop J can potentially be revived. Bennelong, if it had a lawyer, could make an application under r 1505(5) of the Rules, which states: On application made not later than 7 days after the day judgment is entered because of this rule, the court may amend or set aside the judgment.
The court file in respect of the proceedings disposed of by Mossop J on 21 June 2024 discloses that judgment was entered on 9 July 2024. This means that the seven days referred to in r 1505(5) have not yet elapsed.
Dr Quach, personally, could not utilise r 1505(5) because he does not have leave to represent Bennelong, that leave having been refused by Loukas-Karlsson J, whose orders still stand.
The lodging of the appeal against the orders of Mossop J made on 21 June 2024, as already discussed, is probably the path that would be most likely to achieve the results sought by Dr Quach. Presumably, the appeal has been lodged by Bennelong represented by a lawyer, or, concurrently with the appeal, Dr Quach has made a fresh application to represent the company.
Dr Quach submitted that the decision of Neville J in QE Family Pty Ltd v Peter Warren Automative (t/as Mercedes-Benz Macarthur) [2024] FedCFamC2G 172 was binding on this Court. I think the submission is misplaced. Justice Neville made a decision in a matter which he was hearing. He did not purport, and nor would it have been effective, to extend his ruling to all proceedings in which Dr Quach was endeavouring to represent a company.
In the meantime, the short point is that until, and if, the decision of Mossop J on 21 June 2024 is set aside, the current application must fail. I have made this decision for these reasons: (a) I do not think an application for leave to appeal from an interlocutory decision, separate from an appeal in respect of the substantive proceedings, can be made in proceedings which have been dismissed. (b) This is not to say that errors in interlocutory decisions cannot continue to be asserted, but rather that they are properly pursued as part of an appeal from the result of the substantive proceedings and not as a separate appeal relating to proceedings which, in effect, no longer exist. As mentioned above, Dr Quach has already commenced an appeal from the decision of Mossop J. (c) If I am wrong about a technical approach which says there cannot be a confined appeal from an interlocutory decision in proceedings which have been dismissed, then I would still reach the same conclusion because there is simply no point in having an appeal from an interlocutory decision when the substantive proceedings have been dismissed. I emphasise here that the point of deciding an interlocutory matter during the life of a proceeding is to enable the substantive matter to proceed on the correct footing. This point might be described as a conclusion that there is no triable issue in respect of which leave to appeal might be granted. Orders
I make the following orders: (1) The application for leave to appeal filed on 24 June 2024 is dismissed. (2) The applicant is to pay the respondent’s costs of the application.
I certify that the preceding twenty-five [25] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Elkaim. Associate: Date: 29 July 2024
Bennelong Medical Pty Ltd
Commissioner of Taxation
(1990) 170 CLR 596
The application for leave to appeal filed on 24 June 2024 was dismissed. The applicant was ordered to pay the respondent’s costs: [25].