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[2025] ACTCA 49
respondent. The appeal was dismissed. The appellant was ordered to pay the respondent’s costs of the appeal.
A company cannot appear in the ACT Supreme Court through its director merely because the director is present. Under r 30(4), it needs a solicitor or the court’s leave for an authorised officer to represent it. Bennelong Medical had no solicitor at the hearing, and Dr Quach did not have leave. The Court of Appeal therefore accepted that the company had failed to appear and found no procedural unfairness or other error in the dismissal. The separate FCFCOA decision relied on by the company did not bind the ACT Supreme Court and arose in different circumstances.
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2,216 words · generated 06/10/2026
Bennelong Medical Pty Ltd appealed from an order dismissing its proceeding against the Commissioner of Taxation. The underlying proceeding began on 16 January 2023. As the Court of Appeal described it, the application sought a ruling that appeared to concern the operation of the Taxation Administration Act 1953 (Cth), including the treatment of research and development expenditure. The proceeding’s precise legal proposition and factual foundation were not clearly articulated in the originating material, according to the primary judge’s reasons as summarised by the appeal court. The appeal court agreed with the primary judge’s view that the underlying claim lacked merit, although it was not necessary to decide that question to dispose of the appeal. [2]-[3], [9]
8 cited instruments linked from this judgment.
The central procedural problem was representation. Bennelong Medical is a corporation. Its director, Dr Quach, had sought leave on earlier occasions to represent it, but that leave had been refused. In June 2024, the company did not appear by a solicitor at the hearing before Mossop J. Dr Quach was present, but the company had no leave for him to conduct the proceeding on its behalf. The primary judge dismissed the proceeding under r 1505(2) of the Court Procedures Rules 2006 (ACT), which permits dismissal where a plaintiff does not appear when trial starts. [7]-[8], [30], [36]
On appeal, Bennelong Medical argued, among other things, that it had been present through Dr Quach, that it had been denied a fair hearing, and that the ACT Supreme Court was bound by the FCFCOA decision in QE Family Pty Ltd v Peter Warren Automotive trading as Mercedes-Benz Macarthur [2024] FedCFamC2G 172. The appeal court rejected those arguments. It dismissed the appeal and ordered Bennelong Medical to pay the Commissioner’s appeal costs. [11]-[13], [39]-[40], [46]
The Court treated the right to appear for a corporation as the starting point. Rule 30(4) provides that a corporation may carry on a proceeding in the Supreme Court through a solicitor or, with the court’s leave, through an authorised officer or employee. Applying that rule, the Court reasoned that Dr Quach’s physical presence did not itself amount to an appearance by Bennelong Medical. Because he had not been granted leave and no solicitor appeared, the company had failed to appear. [36]
That conclusion answered the appellant’s argument that r 1505(2) was not available because it was, in some sense, present. The operative question was not simply whether the director was in court. It was whether the corporation was represented in a manner permitted by r 30(4). The Court’s answer was that it was not. [36]
The Court also examined procedural fairness. It accepted the general principle that a person affected by a court order should have an opportunity to be heard, but explained that the right is an opportunity to be heard, not a right to obstruct proceedings by failing to attend. [32] The relevant history mattered: Bennelong Medical had been refused permission for Dr Quach to represent it in an earlier decision, and the Court said the company was on notice of the real prospect that leave would again be refused. It chose to proceed without representation. [30], [33]
The company also had a post-judgment avenue identified in the rule. Under r 1505(5), an application to amend or set aside a judgment entered because of the rule may be made within seven days after the judgment is entered. The appeal court noted that there was no evidence the company had made such an application. It treated that fact as part of the context, rather than as a separate rule that automatically determined the appeal. [22], [34]
QE Family did not change the result. The appeal court explained that the case involved a different court and different facts. In QE Family, there was uncertainty about whether Dr Quach personally or a company associated with him was the proper applicant. The FCFCOA dispensed with its procedural requirements and permitted him to appear, ultimately treating him and the company as joint applicants. The ACT Court of Appeal held that the decision was not binding on it and did not establish error in the refusal of leave in Bennelong Medical’s case. [13], [38]-[40]
Other submissions did not alter the result. The appellant’s reliance on disclosure duties, the Commissioner’s alleged obligations as a model litigant, barristers’ duties, and remarks made by McWilliam J at an earlier application hearing did not establish that the primary judge had erred. In particular, the appeal court said it could not identify a basis for the assertion that the Commissioner or counsel was obliged to agree to setting aside the decision. It also explained that McWilliam J’s remarks concerned the lawfulness of dismissing the appeal by application, not the lawfulness of the primary judge’s decision. [24]-[29], [41]-[45]
The judgment applied two procedural rules in the ACT Court Procedures Rules. First, r 30(4) governs how a corporation carries on a proceeding in the Supreme Court: through a solicitor, or through an authorised officer or employee if the court grants leave. Second, r 1505(2) permits the court to dismiss a plaintiff’s originating process if the plaintiff does not appear when trial starts. The appeal court applied those rules together: without a solicitor or leave for Dr Quach, Bennelong Medical had not appeared for the hearing. [7], [36]
The decision does not announce that a director can never represent a company. The rule itself allows an authorised officer or employee to do so with leave. The court’s decision concerns the consequence of leave being refused and the company proceeding without a solicitor. It also does not establish that every refusal of leave, or every dismissal in a party’s absence, is procedurally fair. The Court assessed the history and circumstances before it, including notice of the representation issue and the company’s choice to proceed without a solicitor. [33], [36], [40]
Nor does the judgment create a new rule about the merits of tax disputes. The primary judge had noted that Pt IVC of the Taxation Administration Act provided a way to challenge a tax assessment on its merits, but the appeal court’s dispositive reasoning concerned appearance, representation and the absence of demonstrated error. It agreed with the primary judge’s view that the underlying proceeding lacked merit, but its appeal decision turned on the procedural grounds. [3], [8]-[9]
The practical clarification is narrow: a corporate director’s attendance does not, by itself, satisfy the appearance requirement if the director lacks leave to conduct the case and the company has no solicitor appearing. The decision also confirms that an authority from another court may be unhelpful where it is not binding and arose from materially different circumstances. It does not purport to alter the text of r 30(4) or r 1505. [36], [39]
At [36], the Court stated: “Where the company failed to appear by a solicitor in this case, leave was required before Dr Quach could appear on its behalf and carry on the proceeding as an officer of the corporation.” In plain English, a company’s director does not automatically speak for it in court. The applicable rule required either a solicitor or the court’s permission for Dr Quach to represent the company.
The Court continued: “There was no right of appearance in the circumstances, other than by leave of the court.” [36] This is the core procedural point. The director’s presence in the courtroom was not equivalent to a legally recognised appearance by the company under the rule.
At [40], the Court concluded that the appellant had not established that refusing Dr Quach a right of appearance “constituted a denial of procedural fairness” or otherwise amounted to error. The conclusion is tied to the circumstances described earlier, particularly the company’s awareness of the issue and its decision to proceed without a solicitor. It should not be detached from those facts and treated as a universal answer to every corporate representation dispute.
At [39], the Court explained that QE Family was decided in light of its own factual setting, including uncertainty over whether the company or Dr Quach personally was the proper applicant. In plain English, another court’s decision to permit a director to appear in a case with a different applicant-identity problem did not require the ACT court to do the same here.
At [45], the Court rejected the appellant’s reading of McWilliam J’s earlier remarks. The remarks were not a ruling that the primary judge’s decision might be unlawful. The appeal court understood them as concerning whether the appeal could lawfully be dismissed through the particular application then before McWilliam J.
The decision is most directly relevant where a corporation is a party in the ACT Supreme Court, an officer or employee seeks to conduct the case without a solicitor, and the court has not granted leave under r 30(4). It is especially relevant where the corporation argues that an officer’s physical presence means it appeared for a hearing. The Court’s answer is that presence alone is not enough if the officer has no leave and the company has no solicitor. [36]
It may also be relevant where a plaintiff corporation does not appear in a legally recognised way at trial and the defendant seeks dismissal under r 1505(2). The decision explains how the representation rule can establish the factual premise for non-appearance. It does not say that dismissal must follow in every case. Rule 1505(2) says the court “may” dismiss, and the appeal court reviewed whether the primary judge had erred in exercising that power on these facts. [7]-[8], [36]
The history of notice is also important to the fairness analysis. Here, the company had previously been told that Dr Quach could not represent it without leave. The appeal court relied on that context in finding that the refusal to allow him to appear did not deny procedural fairness. A case in which a company lacked notice of the representation requirement, or where the relevant procedural circumstances differed, would require its own assessment. The judgment does not determine how every such variation should be resolved. [30], [33], [40]
Finally, the case may be relevant when a party relies on a decision from a different court that permitted a company officer to appear. The relevant questions include whether that decision is binding and whether its factual context matches the new case. The Court found QE Family neither binding nor factually determinative. [13], [38]-[39]
The judgment supplied here is dated 2 December 2025. It does not identify any later judicial treatment of this decision, and no later judgments are included in the provided material. It is therefore not possible, from this source, to say whether later courts have followed, distinguished or otherwise applied Bennelong Medical Pty Ltd v Commissioner of Taxation (No 10).
The judgment itself discusses earlier decisions in the same litigation. It refers to the prior refusal of leave for Dr Quach to represent the company, and recounts earlier appellate decisions concerning the form and competence of notices of appeal. Those earlier decisions form part of the procedural history; they are not later treatment of the present judgment. [5], [30]
The Court also discusses QE Family, Marsh v Mukhin (No 3), Lewis v Chief Executive Department of Justice and Community Safety (ACT), and other authorities. Those cases were considered as part of the appeal’s reasoning, not as later responses to the 2025 decision. [31]-[40]
The judgment does not set out a comprehensive test for when leave should be granted to an officer or employee under r 30(4). It recounts the earlier reasons for refusing leave to Dr Quach, including concerns about the clarity and complexity of the claim, orderly conduct, evidence, costs and court resources. But the appeal was resolved by finding no error in the circumstances, not by setting out an exhaustive framework for every future application. [30], [36], [40]
It also does not define every circumstance in which a plaintiff can be treated as having failed to appear under r 1505(2). The decision addresses a corporation whose director attended without leave and whose company had no solicitor. It does not decide how other types of appearance, representation or notice might affect the rule’s operation. [7], [36]
The decision leaves open how a court should assess a procedural fairness challenge where notice of the representation issue was absent, the company had a solicitor who could not attend, or the circumstances surrounding non-appearance were different. The judgment’s conclusion is expressly grounded in this company’s history and choices. [33]-[36], [40]
Finally, the appeal court did not determine the underlying tax controversy or the respondent’s jurisdiction. It noted the primary judge had not determined the jurisdiction issue and had dismissed the proceeding on non-appearance grounds. Although it agreed with the primary judge’s view that the claim lacked merit, the appeal was dismissed because no error was shown in the decision under appeal. The judgment therefore does not resolve the substantive tax treatment of the company’s claimed expenditure. [3], [6], [8]-[9]
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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 10) Citation: [2025] ACTCA 49 Hearing Date: 29 July 2025 Decision Date: 2 December 2025 Before: McCallum CJ, Kelly and Muller AJJ Decision: (1) The appeal is dismissed. (2) The appellant is to pay the respondent’s costs of the appeal. Catchwords: APPEAL – PRACTICE AND PROCEDURE – Appeal of dismissal of proceedings – where appellant did not appear at first instance hearing – claim dismissed by primary judge under r 1505(2) of CPR – where director of appellant corporation purported to represent appellant at first instance – r 30(4) of CPR – leave required for director to represent corporation – trial judge denied leave – no denial of procedural fairness by trial judge – no error disclosed – appeal dismissed Legislation Cited: Competition and Consumer Act 2010 (Cth), Sch 2 - Australian Consumer Law, s 54 Court Procedures Rules 2006 (ACT), rr 30(4), 1505, 5403 Family Law Act 1975 (Cth) Federal Court Rules 2011 (Cth) Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), s 6(1) Legal Profession (Barristers) Rules 2021 (ACT) Taxation Administration Act 1953 (Cth), Pt IVC Cases Cited: Bennelong Medical Pty Ltd v Commissioner of Taxation [2023] ACTSC 74 Bennelong Medical Pty Ltd v Commissioner of Taxation (No 2) [2023] ACTCA 37 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 7) [2024] ACTCA 39 Cameron v Cole (1944) 68 CLR 571; 17 ALJR 397 In the matter of Mikcon Group Australia Pty Ltd (in liq) [2024] NSWSC 1585 Lewis v Chief Executive Department of Justice and Community Safety (ACT) [2013] ACTSC 198; 280 FLR 118 Mallard v The Queen [2005] HCA 68; 224 CLR 125 Marsh v Mukhin (No 3) [2021] ACTSC 182; 361 FLR 253 May v Commonwealth [2024] ACTCA 6 QE Family Pty Ltd v Peter Warren Automotive trading as Mercedes-Benz Macarthur [2024] FedCFamC2G 172 Quach v Butt [2016] ACTSC 153 Quach v GLC Partners Pty Ltd [2025] QCAT 265 Re JJT: Ex parte Victoria Legal Aid [1998] HCA 44; 195 CLR 184 Yager v The Queen (1977) 139 CLR 28 Parties: Bennelong Medical Pty Ltd (Appellant) Commissioner of Taxation (Respondent) Representation: Counsel No appearance (Appellant) S Wright (Respondent) Solicitors No appearance (Appellant) Australian Government Solicitor (Respondent) File Number: ACTCA 19 of 2024 Decision Under Appeal: Court: ACT Supreme Court Before: Mossop J Date of Decision: 21 June 2024 Case Title: Bennelong Medical Pty Ltd v Commissioner of Taxation (No 5) Citation: [2024] ACTSC 194 THE COURT: Introduction
The appellant, Bennelong Medical Pty Ltd, appeals from the decision of Mossop J to dismiss its proceeding on the basis of the failure of the appellant to appear when the matter was listed for hearing on 21 June 2024.
The principal proceeding sought a ruling that, on the face of the originating application, was in the nature of declaratory relief concerning the operation of the Taxation Administration Act 1953 (Cth). The respondent sought dismissal of the proceedings: (a) Because the Court lacked jurisdiction; (b) Pursuant to r 1505(2) of the Court Procedures Rules 2006 (ACT) (the CPR); and (c) On the merits.
The primary judge elected not to deal with the issue of jurisdiction, and determined to dismiss the proceedings on the basis of the failure of the appellant to appear. Although in the circumstances not called upon to determine the matter, the primary judge also formed the view that the principal proceeding was without merit. The Court has reached the same view, and the appeal should therefore be dismissed.
At the hearing before this Court, the appellant again failed to appear, but two preliminary matters arose: (a) Dr Michael Quach, the director of the appellant company, sought from this Court, and was denied, leave to appear on the appellant’s behalf; and (b) The respondent applied for an order that, although the orders sought by the appellant in the principal proceedings prospectively involved a “special federal matter” within the meaning of s 6(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), it remained appropriate for this Court to determine the matter. Orders were made accordingly.
Background matters
16/01/23 Originating application lodged by appellant Ruling sought: - “There is, therefore, no legitimate foundation for resorting to the definitions [expense] contained in the [Taxation Administration Act 1953 (Cth)] for the purpose of modifying or qualifying another statutory definition, [R & D expenses] contained in [Income Tax Assessment Act 1997 (Cth)] a different Act of Parliament.” Reliance placed on Yager v The Queen (1977) 139 CLR 28 and Quach v Butt [2016] ACTSC 153 16/01/23 Application in proceedings lodged by appellant Ruling sought: - “Leave is granted for an officer of the corporation authorised by the corporation to represent it.” 24/03/23 Decision of Senior Deputy Registrar Gatehouse Application in proceeding dated 16 January 2023 dismissed - Dr Quach refused leave to appear on behalf of the company in the proceedings 29/03/23 Notice of appeal lodged by appellant from decision of Senior Deputy Registrar Gatehouse Ruling sought: - “Leave is granted under Rule 30 (4)(b) for Dr Michael Van Thanh Quach, authorised by Bennelong medical Pty Ltd to represent it.” 11/04/23 Decision of Mossop J Bennelong Medical Pty Ltd v Appeal dated 29 March 2023 of decision of Senior Deputy Commissioner of Registrar Gatehouse dismissed Taxation [2023] ACTSC 74 (Bennelong (No 1)) Reasons at [19] 27/04/23 Notice of appeal lodged by appellant from decision of Mossop J Ruling sought: - “Decision of Mossop J of 11 April 2023 is set aside.” - “Decision of Registrar Gatehouse of 24 March 2023 is set aside.” - “Pursuant to Rule 30(4)(b) of the Court Procedures Rules 2006 (ACT), Leave is granted for an officer of Date Applications and decisions Citation and pinpoint
the corporation authorised by the corporation to represent it.” Ground of appeal: - “Registrar Gatehouse decision of 24 March 2023 is contrary to Mossop J decision of 11 April 2023.” 05/06/23 Application in proceedings lodged by respondent Ruling sought: - “The notice of appeal filed on 27 April 2023 (the Appeal) be struck out as incompetent pursuant to rule 5472 of the Court Procedure Rules 2006 (the Rules) and/or as noncompliant with the Rules.” 20/06/23 Decision of Curtin AJ Bennelong Medical Pty Ltd v Notice of appeal dated 27 April 2023 struck out as non- Commissioner of compliant with r 5403 of the CPR Taxation (No 2) - Leave granted for appellant to file an amended [2023] ACTCA 37 notice of appeal which complies with the rules on or Reasons at [10]-before close of business on 28 June 2023 [16], [36] 23/06/23 Amended application in proceedings lodged by respondent Ruling sought: - “The Notice of Appeal be struck out as incompetent pursuant to r 5472 of the Court Procedure Rules 2006 (the Rules).” Ground of application: - “The Appellant requires leave of the Court to appeal which leave the Court has not granted.” 03/07/23 Amended notice of appeal lodged by appellant 04/10/23 Decision of Taylor J Bennelong Medical Pty Ltd v Amended notice of appeal dated 3 July 2023 struck out Commissioner of - Amended notice in substantially same terms as Taxation (No 3) original notice of appeal [2023] ACTCA 37 - Decision of Mossop J on 11 April 2023 was (Bennelong (No interlocutory, necessitating leave to appeal 3)) - As no application for leave was filed, appeal necessarily incompetent Reasons at [31]- - If leave had been sought, it would have been [33], [46]-[50] refused due to lack of merit of substantive proceedings 18/04/24 Application in proceedings lodged by appellant Ruling sought: - “Pursuant to Rule 30 (4)(b) of the Court Procedure Rules 2006 (ACT), Leave is granted for an officer of Date Applications and decisions Citation and pinpoint
the corporation authorised by the corporation to represent it.” 18/06/24 Decision of Loukas-Karlsson J Bennelong Medical Pty Ltd v Application in proceedings dated 18 April 2024 dismissed Commissioner of Taxation (No 4) [2024] ACTSC 190 Reasons at [71]- [92] 21/06/24 Decision of Mossop J (decision under appeal) Bennelong Medical Pty Ltd v Proceedings commenced 16 January 2023 dismissed Commissioner of pursuant to r 1505 of the CPR Taxation (No 5) Open to the Court to dismiss case without determining [2024] ACTSC issue of jurisdiction (see May v Commonwealth [2024] 194 (Bennelong ACTCA 6) because: (No 5)) Plaintiff has not appeared and company has chosen Reasons at [13]-not to retain lawyers, notwithstanding earlier 19], [23]-[27], [35] decisions of the Court; therefore, no contradictor to submissions made in respect of jurisdiction - Scope of jurisdiction a question of general importance and considerable complexity - Written submissions filed by defendant were inadequate - Plaintiff has entitlement to object to any tax assessment pursuant to Pt IVC of the Taxation Administration Act 1953 (Cth) - Proceedings must be dismissed in any event due to lack of substance and failure to articulate a coherent basis upon which relief may be granted 11/07/24 Notice of appeal lodged by appellant from decision of Mossop J (appeal under consideration) 18/09/24 Application in proceedings lodged by respondent Rulings sought: - “The Notice of Appeal filed on 11 July 2024 be struck out pursuant to rule 5472 of the Court Procedures Rules 2006 (Rules).” - “Alternatively to proposed order 1 above, the Notice of Appeal filed on 11 July 2024 be dismissed pursuant to rule 30(4)(a) or 30(4)(b) of the Rules.” 23/12/24 Decision of McWilliam J Bennelong Medical Pty Ltd v Application in proceeding dated 18 September 2024 Commissioner of dismissed Taxation (No 7) [2024] ACTCA 39 Date Applications and decisions Citation and pinpoint
The determination of the primary judge
While accepting the general proposition that it is appropriate to determine matters of jurisdiction before addressing other issues, Mossop J determined not to do so in Bennelong (No 5) for the reasons summarised in the table above.
His Honour then turned to the question of dismissal pursuant to r 1505 of the CPR. The rule provides: 1505 Trial—defendant or plaintiff not appearing (1) If a defendant does not appear when the trial starts, the plaintiff may call evidence to establish an entitlement to judgment against the defendant in the way the court directs. Note Pt 6.2 (Applications in proceedings) applies to an application for directions or an order under this rule. (2) 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. (3) Despite subrule (2), the defendant may submit to judgment if the plaintiff does not appear when the trial starts. (4) If neither the plaintiff nor the defendant appear when the trial starts, the court may, on its own initiative, order that the proceeding (including any counterclaim by the defendant) be dismissed and make no order for costs. (5) 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. Note Rule 6901 (Orders may be made on conditions) provides that the court may make an order under these rules on any conditions it considers appropriate.
His Honour noted that the power to dismiss pursuant to subs (2) is a discretionary one, that is more likely to be exercised in the face of an unintelligible or weak claim. In determining that it was appropriate to exercise the jurisdiction to dismiss in this case, his Honour said: First, in the present case, for the reasons which I will explain in a moment, the proceedings lack merit. Second, the reason that the plaintiff has not appeared is because, although Dr Quach was present, the company has chosen not to retain lawyers to represent it in the proceedings. That is notwithstanding that, at least since my decision in April 2023, the company has known that Dr Quach was refused leave to represent the company in the proceedings. Third, the plaintiff has an entitlement to object to any tax assessment pursuant to Pt IVC of the Taxation Administration Act 1953 (Cth). This provides a means by which the correctness of the defendant’s decision in relation to research and development salary expenditure and other expenditure can be determined on the merits. In circumstances where the company has chosen to remain unrepresented and hence has not appeared at the final hearing of the proceedings, where the proceedings lack merit, and where there is an alternative forum in which merits review of the defendant’s assessment is available, it is clearly appropriate to dismiss the proceedings under r 1505(2).
Although unnecessary to do so given the decision set out above, the primary judge went on to express the view that the claim for relief in the substantive proceeding was without merit. His Honour reached that view largely on the basis that the pleading failed to “articulate a coherent basis upon which relief might be granted” (at [28]). His Honour considered it most likely that the appellant by its proceeding sought relief in the nature of a declaration as to the meaning of a statutory definition in the tax legislation. His Honour concluded (at [35]): I would refuse to make any “ruling” or other order because: (a) the legal proposition in relation to which the ruling is sought is not clear; (b) the correctness of that legal proposition, whatever it might be, has not been established; (c) even though it can be inferred that the plaintiff’s complaint relates to the failure by the defendant to pay to the plaintiff a tax refund, the factual circumstances in relation to which the ruling is sought to apply are not clear; (d) the existence of a controversy between the parties which is suitable for the making of a ruling or declaratory order has not been established; and (e) there is available to the plaintiff an alternative forum in which the correctness of any decision of the defendant relating to the claims for deductions based on “R & D Salary Expenditure” and “R & D Other Expenditure” ultimately adopted by the defendant could be reviewed.
The appeal grounds
The notice of appeal raises two grounds: (1) Bennelong medical Pty Ltd [sic] was present at the final hearing on 21 June 2024. (2) The ACT Supreme Court is bound by the decision of Federal Circuit and Family Court of Australia, Neville J in QE Family Pty Ltd v Peter Warren Automotive trading as Mercedes-Benz Macarthur [2024] FedCFamC2G 172 at [14].
Allowing for the appellant’s self-representation, it is unclear whether the first of those grounds is intended to comprise the contention that the Court was in error in refusing to grant leave to Dr Quach to appear for the company, or alternatively that the power under r 1505 of the CPR was not enlivened because the company was in fact present in the form of Dr Quach.
The Federal Circuit and Family Court (FCFCOA) decision referred to in the second ground was concerned with an unsuccessful claim under s 54 of the Australian Consumer Law (contained in Sch 2 of the Competition and Consumer Act 2010 (Cth)) alleging the sale of a defective vehicle. In QE Family Pty Ltd v Peter Warren Automotive trading as Mercedes-Benz Macarthur [2024] FedCFamC2G 172 (QE Family) the deciding judge, Judge Neville, considered the requirements for expert opinion evidence, and found that purported ‘expert evidence’ relied upon by the applicant did not conform with the features of expert evidence and in any case had no probative value. During proceedings, the applicant company sought to be represented in the matter by Dr Quach; for reasons summarised later at [37], the Court ultimately dispensed with the requirement that the company be legally represented. The FCFCOA decision is not one that is binding on this Court.
Submissions
Appellant’s submissions
The appellant’s submissions appeared to advance four lines of argument.
First, the appellant submitted the respondent had a “duty of disclosure” to the court, to state the “source of power” for a letter from the Deputy Commissioner of Taxation addressed to the appellant dated 25 July 2022.
Second, the appellant submitted, in essence, that the respondent, as a government official and model litigant, was required to make certain concessions regarding the appellant’s right to be heard during proceedings. In particular, the appellant asserted the respondent was obligated to, inter alia: (a) Allow the appellant to be heard without legal representation; (b) Concede that the appellant did not waive its right to be present during the hearing before Mossop J on 21 June 2024; (c) Concede that Dr Quach, as the owner of the appellant company, was a party “affected by the Court order”, and that it was in the interests of justice in the context of a self-represented litigant that he be heard; (d) Allow Dr Quach to be joined as an interested party to proceedings; and (e) Acknowledge that, “at common law”, Dr Quach uses the appellant “as an agent for his business affairs”, apparently referring to the decision in QE Family.
Third, the appellant submitted counsel for the respondent had a “statutory obligation” to agree to set aside the decision of the primary judge, with reference to the paramount duty of a barrister to the court and the duty of frankness to the court.
Fourth, the appellant submitted that the remarks of McWilliam J on 29 November 2024, made during hearing of an application in proceeding in this appeal, were binding on this Court in determining the appeal. In particular, the appellant asserted her Honour had expressed the opinion that the decision of the primary judge “may not be lawful”.
Respondent’s submissions
The respondent’s submissions addressed the two grounds of appeal in turn.
In relation to ground 1, the respondent submitted there was sufficient basis for the primary judge to dismiss the application pursuant to r 1505(2). In particular, the respondent referred to the primary judge’s reasoning in finding the factual precondition for exercise of the dismissal power was made out, at [25] of Bennelong (No 5). The respondent also noted that Dr Quach had previously been refused leave to appear for the appellant in Bennelong (No 1). The respondent submitted that there was no suggestion the appellant had not been given sufficient notice of the trial of its claim.
In relation to ground 2, the respondent submitted two reasons why the primary judge was not bound by the decision in QE Family. First, the respondent noted that the ACT Supreme Court is a superior court of record, which is not bound by decisions of a court which is not a superior court, such as the FCFCOA (Division 2). Second, the respondent submitted the paragraph from QE Family cited by the appellant referred to a procedural ruling made in the particular circumstances of that case. The respondent submitted that a court was not obliged to delay proceedings indefinitely because a plaintiff, although put on notice of proceedings, refuses or fails to appear.
The respondent further noted that, pursuant to r 1505(5) of the CPR, the appellant was allowed, via a solicitor, to make an application, within 7 days of the primary judge’s judgment being entered under r 1505, to amend or set aside the judgment. The respondent observed that there was no evidence the appellant had made such an application.
The respondent submitted that, no error having been disclosed in the primary judge’s decision, the Court should dismiss the appeal, with costs to be paid by the appellant.
Consideration
Duty of disclosure
The first part of the appellant’s submissions was focused on the duty of disclosure owed by the respondent. The submission appears to be that in the course of making a determination as to the appropriateness of a research and development tax incentive sought to be relied upon by the appellant, the respondent failed to disclose the source of the power relied upon to withhold the tax refund to which the appellant would otherwise be entitled.
In support of its argument, the appellant placed reliance upon the decisions of the High Court in Mallard v The Queen [2005] HCA 68; 224 CLR 125 (Mallard), and Re JJT: Ex parte Victoria Legal Aid [1998] HCA 44; 195 CLR 184 (Re JJT).
Mallard was concerned with the decision of the Court of Criminal Appeal in Victoria, upon petition of an offender convicted of murder, to confine its jurisdiction to the consideration of fresh material. The High Court held that on the hearing and determination of a reference of a petition for mercy, there was no such inhibition on the jurisdiction of the court, and the court was obliged to hear the whole of the case including all of the properly admissible evidence, whether new or previously adduced.
The decision of the High Court in Mallard does not bear in any relevant way upon the conduct of the respondent in the management of the appellant’s tax affairs.
Re JJT was a High Court decision concerned with the power of the Family Court under the Family Law Act 1975 (Cth) (Family Law Act) to order a person, not a party to a proceeding, to be separately represented in the proceeding, and with the power to make orders for funding of such representation. The case was concerned principally with the interpretation of provisions of the Family Law Act. Within the dissenting judgement of Kirby J, at 200-202, there is reference to the general approach to be taken where a challenge is made to a purported judicial exercise of statutory power, in the context of a judicial officer making orders. However, there is nothing arising from his Honour’s judgment that provides any foundation for a contention that the executive exercise of the statutory power by the respondent in this case, in the context of the appellant’s tax affairs, is open to challenge.
The appellant has failed to establish any error in this regard.
The right of the appellant to be heard via Dr Quach
The appellant contended that for a range of reasons, including interests of justice considerations in the context of a self-represented litigant, it was appropriate to allow it to be heard via the person of Dr Quach. In Bennelong (No 1), the primary judge set out in some detail his Honour’s reasons for, on that occasion, declining to grant leave to Dr Quach to represent the appellant. As those reasons at [19] have subsequently been cited with approval, it is appropriate to restate them: In my view the following matters, taken together, indicate that the court should not grant Mr Quach leave to represent the plaintiff: (a) Insofar as it is possible to work out from the documents filed to date, the claim is one which raises a question of statutory interpretation. However, the claim has not been clearly articulated and, as a result, the connection between the question of statutory interpretation and the facts of the case is not clear. (b) There will be some legal complexity in relation to the pursuit of such a claim both having regard to the question of statutory interpretation raised but also having regard to other issues which will or may arise in relation to the jurisdiction of the court, the question of whether or not any declaration could be appropriate in the circumstances and matters of procedure more generally. (c) From the conduct of the case to date it is not apparent that it will be able to be conducted in an orderly fashion without a solicitor. That is illustrated by the difficulty with the formulation of the claim and the inadequacy of the evidential material put forward in support of that claim. (d) There is no evidence that Mr Quach or the plaintiff is unable, because of financial constraints, to engage a solicitor to conduct the case. (e) It is very likely that if the case is conducted by Mr Quach rather than a solicitor the defendant will be put to substantially greater expense in defending the claim. (f) It is likely that if the case is conducted by Mr Quach rather than a solicitor greater court resources will be required to be devoted to the matter at the expense of other litigants in the court list.
In its written submissions, the appellant relied upon the following authorities as relevant to the right of appearance issue: (a) Quach v GLC Partners Pty Ltd [2025] QCAT 265 (Quach v GLC); (b) Marsh v Mukhin (No 3) [2021] ACTSC 182; 361 FLR 253 (Marsh); (c) Lewis v Chief Executive Department of Justice and Community Safety (ACT) [2013] ACTSC 198; 280 FLR 118 (Lewis); and (d) QE Family.
In Quach v GLC, the appellant seeks to place reliance upon a single page extract from the transcript of proceedings, apparently before the Queensland Court of Appeal. The Court understands that reliance to be in respect of the observation that a person affected by a court order should be given an opportunity to be heard. In that regard, the Court was simply restating a well-established principle of natural justice applicable to all court proceedings: see Cameron v Cole (1944) 68 CLR 571; 17 ALJR 397 per Rich J at 589. There are, however, limits placed on the accommodation afforded to parties that fail to appear, as Black J observed in In the matter of Mikcon Group Australia Pty Ltd (in liq) [2024] NSWSC 1585 at [4]: However, that right is a right to an opportunity to be heard, and not a right to frustrate the hearing of proceedings by not attending them, although the Court should have regard to the extent of any hardship to the party against whom an order is sought from proceeding in its absence and to any considerations of urgency. (Citations omitted.)
Legal Profession Rules
At a hearing before McWilliam J on 29 November 2024, that resulted in the dismissal of the respondent’s application seeking to strike out the notice of appeal, Dr Quach, appearing with leave on behalf of the appellant on that occasion, expressed concern that the respondent was seeking to “kill off the appeal before it is even properly heard”. In its written submissions before this court, the appellant cited a barrister’s paramount duty to the court and the duty of frankness to assist the court to arrive at the correct decision. Reliance was placed generally on the Legal Profession (Barristers) Rules 2021 (ACT).
The contention of the appellant in its written submissions is that counsel appearing for the respondent at the hearing before McWilliam J had a statutory obligation (presumably derived from the barrister’s duty of frankness and the barrister’s paramount duty to the court) to agree to set aside the decision of the court below.
The Court is unable to discern from a review of the transcript of hearing before McWilliam J, or otherwise, what, if any, basis there could be to support the proposition that the respondent or its counsel is somehow bound to agree to the decision of the primary judge being set aside.
Remarks of McWilliam J on application hearing
In a related way the appellant submits that the remarks of McWilliam J in the course of the application hearing before her Honour on 29 November 2024 bind this Court in its determination of the appeal. In particular, the appellant asserts that her Honour expressed the view that the decision of the primary judge in the court below, may not be lawful.
Not only do the observations of her Honour upon which reliance is placed have no binding effect on this Court; the import of those observations appears to be entirely misconstrued. The concern that her Honour was expressing was not in respect of the lawfulness or otherwise of the decision of the primary judge but related to the lawfulness of that which the Court was being asked to do in dismissing the appeal by way of application. McWilliam J was not required to determine the point as her Honour ultimately dismissed the application.
Orders
I certify that the preceding forty-six [46] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date: Amendments
11 January 2025 Insert “(No 10)” Case Title
Bennelong Medical Pty Ltd
Commissioner of Taxation
(1944) 68 CLR 571
(1977) 139 CLR 28
The appeal was dismissed. The appellant was ordered to pay the respondent’s costs of the appeal.
The primary judge dismissed the proceedings and ordered the appellant to pay the respondent’s costs.
In the context of the subject hearing before the primary judge, the appellant was already on notice, as a consequence of a number of prior decisions of the Court, of the very real prospect that Dr Quach would be declined a right of appearance on behalf of the company. It elected to accept that risk and proceed without representation.
Even after the decision of the primary judge was made dismissing the proceedings, the appellant elected not to afford itself of the opportunity provided by r 1505(5) of the CPR to appear and seek to set aside the judgment.
In Marsh, the Court was concerned with an appeal against conviction imposed in the appellant's absence, and whether the decision to proceed in those circumstances amounted to a denial of procedural fairness. Although there was a positive finding in the particular circumstances of the case that the Magistrates Court had denied the appellant procedural fairness in convicting the appellant in his absence, the determination was based on an analysis of the factual circumstances, which have no relevance to the approach taken by the primary judge in this case.
To the extent that the appellant appears to argue, in reliance on Marsh, that it did not waive its right to be present during the hearing before the primary judge on 21 June 2024, there is a misconception by the appellant as to the effect of the ruling by his Honour. In accordance with r 30(4) of the CPR, a corporation may only carry on a proceeding in the Supreme Court by a solicitor, or, with the court’s leave, by an officer or employee of the corporation authorised to act on its behalf. Where the company failed to appear by a solicitor in this case, leave was required before Dr Quach could appear on its behalf and carry on the proceeding as an officer of the corporation. That leave having been refused, the company failed to appear. There was no right of appearance in the circumstances, other than by leave of the court.
Lewis was concerned with the content of the natural justice requirement imposed on hearings of the ACT Sentence Administration Board, and the requirement to give notice of a hearing to an applicant. It considered the circumstances in which an accused person might be taken to have waived their right to be present in hearings of a criminal matter. As with Marsh, the judgment has no relevance in these circumstances.
QE Family was a decision of Judge Neville in the FCFCOA (Division 2). The applicant company in that matter was associated with Dr Quach and his wife. The proceeding had a long history in the Court and there was an ongoing issue as to whether the correct applicant in that proceeding was Dr Quach or his family company. Documentation was filed in the proceedings on behalf of the applicant company authorising Dr Quach to act on its behalf. Although the documentation did not comply with the Federal Court Rules 2011 (Cth), the Court of its own motion dispensed with the requirements of the Rules regarding legal representation and permitted Dr Quach to appear on the company’s behalf. The Court went further, noting the difficulties as to the identity of the proper applicant, and made orders treating Dr Quach and his family company as interchangeable entities. Those entities thus became joint applicants in the proceeding. Having heard from Dr Quach, the application was dismissed with costs.
The decision of the Court in QE Family: (a) Was made with regard to the particular factual circumstances in that case, including the uncertainty as to whether the company or Dr Quach personally was the proper applicant in the proceedings; and (b) Is in any event, not binding on this court.
The appellant has failed to establish that the decision of the primary judge to again deny Dr Quach a right of appearance on behalf of the appellant constituted a denial of procedural fairness, or was otherwise such as to amount to an error on the part of his Honour.