//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2024] ACTCA 39
procedural. The application filed on 18 September 2024 was dismissed: [34]. The Court rejected the contention that the Notice of Appeal was incompetent because the corporation had not complied with r 30. The...
The Commissioner argued that Bennelong Medical’s appeal should be struck out because the company’s director filed it without a solicitor and without leave to represent the company. The Court treated that failure as a procedural irregularity, not a defect that made the appeal invalid. The Court also considered that the application before it did not squarely put the separate question of whether the director should receive leave. It dismissed the Commissioner’s application, but did not decide the appeal itself or grant the director leave to represent the company.
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.
2,013 words · generated 08/10/2026
Bennelong Medical Pty Ltd appealed from orders made by Mossop J on 21 June 2024 in Bennelong Medical Pty Ltd v Commissioner of Taxation (No 5). McWilliam J describes those orders as final because they disposed of the parties’ rights: [1], [4]. The underlying proceeding had been dismissed for two distinct reasons. First, Dr Quach, the company’s director, did not have leave to appear for the company, so Mossop J treated the company as not appearing under r 1505(2). Second, Mossop J determined that the application itself lacked merit: [5]–[6]. Those were features of the earlier proceeding, not matters decided afresh by McWilliam J.
2 cited instruments linked from this judgment.
The Commissioner applied on 18 September 2024 to strike out the appeal under r 5472. The primary argument was that the Notice of Appeal was incompetent because the corporation had not acted through a solicitor and Dr Quach had no leave to represent it. In the alternative, the Commissioner sought dismissal of the appeal for the same alleged failure: [2]–[3].
The procedural history mattered because the company and Dr Quach had previously sought leave or attempted appeals concerning representation. McWilliam J records earlier strike-out decisions and an unsuccessful renewed application for leave: [9]–[11]. That history provides context, but the application before her Honour was a confined procedural one. The Court was asked whether the appeal should be struck out or dismissed for incompetency, not to decide the substantive appeal or finally determine whether Dr Quach should be allowed to represent the company.
The Court dismissed the Commissioner’s application: [34]. It did not decide the merits of the underlying tax-related dispute, nor grant leave for Dr Quach to represent the company in the appeal.
The central distinction was between an irregularity in compliance with procedural rules and a defect that makes an appeal incompetent. Rule 30(4) provides that a corporation may start and carry on a proceeding through a solicitor, or, with the Court’s leave, through an authorised officer or employee. Rules 30(5) and (6) address when and how leave may be sought. Rule 5001(2) applies r 30 to appellate proceedings, with necessary changes: [16]–[18].
The Commissioner characterised the absence of a solicitor and the absence of leave as a jurisdictional problem. McWilliam J rejected that characterisation. Relying on r 1450 and the authority identified in Quach v ATM Residential Pty Ltd (No 2), her Honour stated that non-compliance with the Rules is an irregularity and does not make the proceeding or a document void: [20]. The judgment also refers to the proposition that competency concerns the Court’s jurisdiction to entertain an appeal: [21]. The reasoning therefore treats the representation defect as a procedural issue, not as a failure that deprived the Court of jurisdiction over the appeal.
A further point was that the Rules contemplate an application for leave at the time an appeal is commenced. Where leave is sought after commencement, r 30(5) provides for an application in the proceeding. Where it is sought before commencement, r 30(6), adapted for an appeal, allows it to form part of the Notice of Appeal: [17]–[18], [22]–[23]. The appellant had sought leave in the Notice of Appeal and clarified that the request related to the appeal: [22]. That supported the conclusion that the procedural route used did not make the appeal incompetent.
The alternative request to dismiss the proceeding also failed. The Court noted that the representation question was not expressly before it for determination on the strike-out application. The parties’ submissions touched on the question, but the Court identified a concern that deciding it without proper notice could deny procedural fairness: [26]–[29]. The hearing’s defined issues were whether to strike out the Notice of Appeal or dismiss the proceeding for incompetency: [27]. Because the r 30 problem was an irregularity and the representation issue was not squarely on notice, there was no basis to dismiss the entire appeal: [25], [31].
The Court also explained that the original orders were final and that the appellant therefore did not need leave to appeal, although it did need leave for its director to represent it: [4]–[7]. This separates two questions that could otherwise be confused: permission to appeal and permission for a corporation to be represented by a non-lawyer officer.
The judgment’s contribution is narrow and procedural. It applies r 30, r 1450 and r 5001(2) to a corporate appeal filed without a solicitor and with an application for an officer to represent the company. It does not purport to comprehensively restate the law about corporate representation, the full range of consequences for non-compliance with r 30, or the tests governing whether leave should be granted.
Before this decision, the rules already specified that a corporation could act through a solicitor or, with leave, an authorised officer or employee. The judgment sets out the two procedural routes for seeking leave: an application during the proceeding, or an application connected with commencement: [16]–[18]. It also relies on r 1450’s treatment of non-compliance as an irregularity, citing Quach (No 2): [20]. In explaining competency, it refers to Bennelong (No 2) and the authorities discussed there, Davey v Herbst (No 2) and Ryan v Bunnings Group Ltd: [21].
After the decision, the immediate point established by this judgment is that the alleged breach, on these facts and in the context of this application, did not itself make the appeal incompetent or justify dismissal. The judgment does not remove the requirement for leave under r 30(4). Nor does it decide that leave should be granted. It expressly leaves the representation question to be addressed before any substantive appeal hearing, with proper notice: [32].
The judgment also does not decide whether the Notice of Appeal’s grounds were adequate. It notes that those grounds were not challenged in the application and appeared difficult to understand on their face: [30]. The decision therefore should not be read as resolving any issue about the merits, adequacy or eventual success of the appeal.
At [18], the Court explains the combined operation of the relevant rules: a corporation needs leave for a director to represent it; leave sought after commencement requires an application in the proceeding; and leave sought before or when the appeal begins is to form part of the notice of appeal. In plain English, the rules provide a procedural mechanism for raising the representation request at the outset or later.
At [20], her Honour states that failure to comply with the Rules is an irregularity and does not make the proceeding or document void. In plain English, a procedural mistake does not automatically erase the proceeding.
At [21], the Court says that competency concerns the Court’s jurisdiction to entertain the appeal. In plain English, the relevant question is whether the Court has authority to hear the appeal, not simply whether every procedural step has been correctly completed.
At [24], the Court rejects the Commissioner’s submission that the appeal was incompetent and that the Registry should not have accepted the Notice of Appeal. This is the direct answer to the primary strike-out argument.
At [29], the Court identifies a concern about procedural fairness because the director’s leave application was not squarely before it. In plain English, the Court was not prepared to decide a potentially important representation question without the appellant having clear notice that the question would be determined.
At [31], the Court says that even if it had decided not to grant leave, it would have provided an opportunity for the appellant to engage legal representation rather than dismissing the proceeding. This explains why dismissal was not regarded as an appropriate response to the application as framed.
At [32], the Court says representation could be addressed before a substantive hearing if proper notice were given. It also suggests that the respondent might choose not to contest representation, to avoid further interlocutory disputes. That suggestion is not an order granting leave or a determination of the representation issue.
The decision is most directly relevant to a corporate appellant where an officer or director seeks to represent the corporation without a solicitor, and the opposing party argues that the appeal is incompetent because leave under r 30 was not obtained. It is also relevant where leave is sought in the Notice of Appeal, or where the procedural question is whether leave can be sought as part of commencing the appeal: [17]–[24].
Its application is more limited where the issue is whether leave should actually be granted. McWilliam J expressly did not determine that question because it was not squarely before the Court: [26]–[29]. Nor does the judgment decide how a different kind of procedural defect should be treated, or whether a different rule provides a specific consequence for non-compliance.
For practitioners assessing its reach, the key factual features are that the application targeted the appeal on competency grounds; the Notice of Appeal included a request for leave; the appellant clarified the scope of that request at the hearing; and the leave question had not been given proper notice as a matter for determination: [2]–[3], [22], [27]–[29]. Those features help explain why the Court rejected dismissal without deciding the representation issue itself.
The supplied judgment contains no information about how later courts treated this decision. It was delivered on 23 December 2024, and the text does not identify any subsequent cases applying, distinguishing, approving or questioning it. A claim about later treatment cannot be made from this source alone.
The judgment does explain its own use of earlier authorities. It relies on Quach v ATM Residential Pty Ltd (No 2) for the proposition that non-compliance with the Rules is an irregularity: [20]. It refers to Bennelong (No 2), which in turn cited Davey v Herbst (No 2) and Ryan v Bunnings Group Ltd on competency and jurisdiction: [21]. Those references form part of the reasoning supporting the distinction between an irregularity and an incompetent appeal.
Other cited decisions relate to specific background points. Hall v Nominal Defendant and Carr v Finance Corporation of Australia Ltd (No 1) are cited on the finality of orders: [4]. Endresz v Commonwealth of Australia and Bailey v Marinoff are mentioned in connection with whether final orders require a decision on the merits: [6]. The Manning and National Parks decisions appear in the procedural history concerning repeated interlocutory applications: [10]. The judgment’s use of these authorities should not be mistaken for a comprehensive treatment of their principles beyond the propositions it identifies.
First, whether Dr Quach should receive leave to represent Bennelong Medical in the appeal remained unresolved. McWilliam J states that the question was not in terms before her, despite being argued obliquely: [26]–[29]. The decision rejects the Commissioner’s application, but it does not grant leave.
Second, the judgment notes that the Notice of Appeal had not yet been amended to make clear that the appellant intended to challenge both the orders in Bennelong (No 5) and an interlocutory decision in Bennelong (No 4). McWilliam J says this should be addressed so the issues for determination are properly disclosed: [12]. The judgment does not determine how that amendment issue was ultimately resolved.
Third, the merits of the appeal were not decided. The Court notes that the grounds appeared difficult to understand, but the Commissioner’s application did not take issue with them: [30]. Their adequacy and substantive force therefore remain outside the decision.
Finally, the judgment does not establish a general rule that every failure to comply with r 30 is harmless or that a corporation’s officer will receive leave. Its holding concerns the particular strike-out application and the procedural posture before the Court. It confirms that the asserted non-compliance did not make this appeal incompetent, while leaving the separate question of representation for a properly notified determination.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on, relying on, or using 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
Case Title: Bennelong Medical Pty Ltd v Commissioner of Taxation (No 7) Citation: [2024] ACTCA 39 Hearing Date: 29 November 2024 Decision Date: 23 December 2024 Before: McWilliam J Decision: (1) The application filed 18 September 2024 is dismissed. Catchwords: APPEAL – JURISDICTION – Application to strike out appeal – where self-represented director of appellant company filed notice of appeal without leave to represent company – whether appeal incompetent – where irregularity not a matter affecting competency – application dismissed Legislation Cited: Court Procedures Rules 2006 (ACT) rr 30(4), 30(5), 30(6), 1450, 1505(2), 5001(2), 5472, 5604 Supreme Court Act 1933 (ACT) s 37J(1)(h), 37J(1)(k) Cases Cited: Bailey v Marinoff (1971) 125 CLR 529 Bennelong Medical Pty Ltd v Commissioner of Taxation [2023] ACTSC 74 Bennelong Medical Pty Ltd v Commissioner of Taxation (No 2) [2023] ACTCA 28 Bennelong Medical Pty Ltd v Commissioner of Taxation (No 3) [2023] ACTCA 37 Bennelong Medical Pty Ltd v Commissioner of Taxation (No 4) [2024] ACTSC 190 Bennelong Medical Pty Ltd v Commissioner of Taxation (No 5) [2024] ACTSC 194 Bennelong Medical Pty Ltd v Commissioner of Taxation (No 6) [2024] ACTCA 21 Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246 Davey v Herbst (No 2) [2012] ACTCA 19 Endresz v Commonwealth of Australia [2020] ACTCA 48 Hall v Nominal Defendant (1966) 117 CLR 423 National Parks and Wildlife Service v Pierson [2002] NSWCA 273; 55 NSWLR 315 Nominal Defendant v Manning [2000] NSWCA 80; 50 NSWLR 139 Quach v ATM Residential Pty Ltd (No 2) [2024] ACTCA 38 Ryan v Bunnings Group Ltd [2021] ACTCA 43 Parties: Bennelong Medical Pty Ltd (Appellant) Commissioner of Taxation (Respondent) Representation: Counsel Self-represented (Appellant) J Moffett (Respondent) Solicitors Self-represented (Appellant) Australian Government Solicitor (Respondent) File Number: AC 19 of 2024 McWILLIAM J:
Application for determination
The application before the Court for determination is dated 18 September 2024. It was filed by the respondent, the Commissioner of Taxation (the Commissioner). The Commissioner seeks to strike out the appeal, pursuant to r 5472 of the Court Procedures Rules 2006 (ACT) (Rules), on the basis that the Notice of Appeal was incompetent. The reason given by the Commissioner was that the appellant, a corporation, did not have leave to appear by its director, Dr Quach and this was in breach of r 30(4) of the Rules, which require a corporation to commence proceedings by a solicitor acting for the corporation or, with the Court’s leave, by an officer of the corporation.
The alternative order sought (which was in fact more severe than the primary relief sought) was that the appeal proceeding be dismissed for the same reason as that founding the strike-out application, specifically that the Notice of Appeal was not signed by a solicitor and did not state the particulars of any solicitor acting for the appellant.
The orders and reasons in Bennelong (No 5)
The orders made by Mossop J were final orders as the legal effect of his Honour’s decision was to finally dispose of the rights of the parties: Hall v Nominal Defendant (1966) 117 CLR 423 at 439-441 per Taylor J, Owen J agreeing, 444 per Windeyer J; Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246 at 248 and 253-254.
However, it should be explained that Mossop J’s decision concerned two matters. The first was whether, at the final hearing, Dr Quach could appear on behalf of the appellant company of which he was a director. Dr Quach did not have leave to appear (a matter discussed further below), which was required pursuant to r 30 of the Rules. Because of that fact, notwithstanding that the director of the appellant was present in the courtroom, Mossop J dismissed the proceeding for non-appearance by the company, pursuant to r 1505(2) of the Rules.
The second and separate reason for dismissing the proceeding was that Mossop J determined the application itself lacked merit (Bennelong (No 5) at [24], [28]-[36]). Whether there had in fact been a “hearing on the merits” given that one party did not appear might be an interesting question, although previous authorities in this Court have held that final orders do not necessarily require a judgment on the merits for their finality: Endresz v Commonwealth of Australia [2020] ACTCA 48 at [46], applying Bailey v Marinoff (1971) 125 CLR 529 at 530.
This is relevant to the present application because the finality of the orders meant that the appellant did not need leave to appeal. It only required leave of the Court to have its director represent it.
Procedural history
Acknowledging at the outset the tedious nature of a journey through a matter’s procedural history, it is helpful context here, to assist in understanding the arguments on the application and their resolution.
Back in 2023, Mossop J had made an order refusing Dr Quach leave to appear on behalf of the company in the proceedings that his Honour ultimately determined in 2024: Bennelong Medical Pty Ltd v Commissioner of Taxation [2023] ACTSC 74. The appellant sought to appeal that interlocutory decision twice: (a) In respect of the first attempt, the respondent succeeded in striking out the appeal: Bennelong Medical Pty Ltd v Commissioner of Taxation (No 2) [2023] ACTCA 28 (Bennelong (No 2)). (b) The second attempt also resulted in a strike out: Bennelong Medical Pty Ltd v Commissioner of Taxation (No 3) [2023] ACTCA 37 (Bennelong (No 3)). In that decision Taylor J decided that an appeal from the decision of Mossop J required leave to appeal, and that, as leave had not been sought, the appeal was incompetent (see [36] of Taylor J’s reasons).
The appellant then tried again to obtain an order permitting Dr Quach to represent the company, but this further application was unsuccessful, essentially because there were no changed circumstances in Dr Quach’s relationship with the company from the primary judgment, which was found by Loukas-Karlsson J to constitute an abuse of process: Bennelong Medical Pty Ltd v Commissioner of Taxation (No 4) [2024] ACTSC 190 (Bennelong (No 4)) at [87]-[90]. In making that finding, her Honour cited (at [86]), Nominal Defendant v Manning [2000] NSWCA 80; 50 NSWLR 139 (Manning) at [71]- [72], a decision which was later clarified in National Parks and Wildlife Service v Pierson [2002] NSWCA 273 (National Parks); 55 NSWLR 315 at [16]-[17]. The overarching principle governing whether a second or subsequent interlocutory application should be entertained (assuming there is no issue estoppel) is that the Court should do whatever the interests of justice require in the particular circumstances of the case: Manning at [46]; National Parks at [19].
The appellant then appealed the decision of Loukas-Karlsson J. However, that appeal from an interlocutory order was dismissed by Elkaim AJ: Bennelong Medical Pty Ltd v Commissioner of Taxation (No 6) [2024] ACTCA 21. His Honour took the view (at [24]) that because in the meantime, the decision that is presently the subject of appeal, Bennelong (No 5), had been handed down and this appeal proceeding commenced, the appeal of an interlocutory decision of Loukas-Karlsson J was more properly brought as part of the appeal proceedings from the final orders made.
That leaves the present appeal proceeding as a proceeding in which the orders of Mossop J in Bennelong (No 5) and of Loukas-Karlsson J in Bennelong (No 3) may be challenged, although the notice of appeal has not yet been amended following the decision of Elkaim AJ to make it clear that the appellant intends to challenge both decisions. In due course, this should be addressed to properly disclose the issues for determination on appeal.
The Court’s jurisdiction
Procedural matters in appeal proceedings may be heard and determined by the appeal court constituted as a single judge: s 37J of the Supreme Court Act 1933 (ACT). The list of matters which a single judge of the Court of Appeal may deal with under s 37J(1) of that statute includes dismissal of an appeal or other proceeding for want of prosecution (subs (h)) or for any other reason prescribed under the Rules, as well as any other question of practice and procedure in the Court of Appeal (subs (k)) (which would include striking out a notice of appeal).
That power is supported by r 5604 of the Rules, which expressly provided that the Court of Appeal may be constituted by a single judge in relation to hearing and deciding the dismissal of an appeal under s 37J(1)(h) for a number of reasons, one of which is that the appeal is incompetent or that the appellant has failed to comply with any relevant rules of court.
Thus, the jurisdiction here being exercised is that of the Court of Appeal, comprised by a single judge, determining a procedural dispute, including dismissal under the Rules (as opposed to substantive dismissal of an appeal on the merits).
Applicable rules
The relevant parts of r 30 are subrr (4)-(6) of the Rules. They are in the following terms: 30 Who may start and carry on a proceeding … (4) A corporation may start and carry on a proceeding in the Supreme Court— (a) by a solicitor acting for the corporation; or (b) with the court’s leave, by an officer or employee of the corporation authorised by the corporation to represent it. (5) If an application for leave under subrule (4) is made during the proceeding or after judgment is given in the proceeding, the application must be made in accordance with part 6.2 (Applications in proceedings). (6) For the Supreme Court, if an application for leave under subrule (4) is made before the proceeding starts, the application must be made by originating application. …
Under r 5001(2), r 30 applies to an appellate proceeding with any necessary changes. In r 30(6), a necessary change here is to substitute a “notice of appeal” for the reference to originating application, as that is the relevant originating process that commences an appeal where leave is not required.
The combined effect of those subrules as applied to the present circumstances is that (1) a corporation requires leave for a director to represent it; (2) if a corporation seeks leave after an appeal proceeding has commenced, then an application in the appeal proceeding will be required; and (3) if it is made before (or when) the appeal commences, it is to form part of the notice of appeal.
Is the appeal incompetent for failure to comply with r 30 of the Rules?
The Commissioner argued here that the purported commencement of appeal proceedings without a solicitor was a question of jurisdiction and therefore of competency. However, I disagree, for the following reasons.
As pointed out in Quach v ATM Residential Pty Ltd (No 2) [2024] ACTCA 38 at [55], a failure to comply with the Rules is an irregularity and does not make the proceeding or a document in the proceeding void: r 1450 of the Rules.
The same point was made by reference to appellate authority in a previous judgment of the Court of Appeal involving the present parties, again constituted by a single judge, namely Bennelong (No 2) at [6], where Curtin AJ cited Davey v Herbst (No 2) [2012] ACTCA 19 at [99]-[100] and Ryan v Bunnings Group Ltd [2021] ACTCA 43 at [114], stating that questions of competency are concerned with the jurisdiction of the Court to entertain the appeal.
One of the orders sought in the Notice of Appeal is that leave be granted for the appellant to be represented by an authorised officer pursuant to r 30(4) of the Rules. Although the order sought did not identify whether that leave was sought in relation to the proceeding at first instance or on appeal, the appellant clarified during the hearing that he was seeking leave in relation to the appeal, in addition to the proceeding at first instance, if the appeal were ultimately to be allowed.
That a party is able to seek leave to be represented by an authorised officer at the same time as an appeal proceeding is commenced is made clear by the two pathways provided for in subrules 30(5) and (6) above.
I therefore reject the Commissioner’s submission that the appeal was incompetent and the filing of the Notice of Appeal should not have been accepted by the Registry.
The alternative basis for dismissal of the appeal
The alternative order sought by the respondent was similarly that the appellant had not complied with r 30(4) of the Rules. As stated, that is an irregularity and is in the process of being addressed by the appellant seeking leave for its director to appear on the appeal. It does not provide a basis to dismiss the entire appeal proceeding.
To date, interim orders made by the Registrar or her delegate appear to have been granting leave to the appellant to be represented by its director on a confined basis (matters preparatory to the appeal). However, the question of whether such leave should be granted was not in terms before me, notwithstanding that it was obliquely argued.
The appellant submitted that it was clear in the notice of appeal that an opportunity was sought to file evidence in relation to that question. The respondent argued that such evidence should have been put before the Court on the application that was being heard, but having reflected on that submission, the only questions before the Court are whether to strike out the Notice of Appeal or dismiss the proceeding for incompetency.
The confusion has arisen in part because of the broad way in which the relevant order was drafted and in part because the issue overlaps with what is likely to be the first issue dealt with on appeal, namely the decision by Mossop J to proceed to hear the case without the appellant having an advocate at the bar table, due to leave being previously refused for the director to represent the appellant.
Accepting that it would have been a most efficient course to deal with any application for leave for the director to appear on behalf of the appellant on the hearing of the appeal as part of the present application, given the course adopted by the Registrars of permitting confined representation leading up to the appeal, I have concerns about potentially denying the appellant procedural fairness in determining an issue that it was not squarely on notice would be before the Court at the hearing of the respondent’s strike out application.
Otherwise, the respondent’s application did not take issue with the grounds of appeal themselves, which on their face are difficult to understand.
The result is that the objection to competency fails and there is presently no other basis to dismiss the proceeding. Even if I had determined not to grant leave to the appellant to appear by its director, I would have given the appellant an opportunity to engage legal representation, rather than dismiss the proceeding.
This outcome does not prevent the parties having the issue of representation on the appeal addressed prior to any substantive appeal hearing, as long as proper notice is given to the appellant prior to that question being agitated. Alternatively, given the succinct reasons in Bennelong (No 5), the lack of any apparent complexity on the appeal, the confined scope of the evidence to be traversed on appeal, and the costs and delay that will be occasioned by further interlocutory applications being addressed, the respondent may decide not to contest the question of the appellant’s representation on appeal, thereby avoiding further interlocutory skirmishes. If that is the case, the parties should instead proceed to prepare the appeal for hearing, with a view to reaching a final determination of the real issues in dispute in the most efficient and just manner achievable.
Costs
Orders
Bennelong Medical Pty Ltd
Commissioner of Taxation
(1971) 125 CLR 529
(1981) 147 CLR 246
(1966) 117 CLR 423
The application filed on 18 September 2024 was dismissed: [34]. The Court rejected the contention that the Notice of Appeal was incompetent because the corporation had not complied with r 30. The substantive appeal and the question whether the director should be granted leave to represent the company were not determined.