Binetter v Deputy Commissioner of Taxation

REASONS FOR JUDGMENT 1 On 16 December 2010, a Judge of this Court ordered that two companies, Civic Finance Pty Ltd and Advance Finances Pty Ltd, be reinstated by the Australian Securities and Investments Commission, and that they thereupon be wound up by an official liquidator. Her Honour stayed those orders pending the hearing of a leave application. An application for leave to appeal from the reinstatement and winding up orders was then filed and it was heard by me on 1 March 2011. On 4 March 2011, I dismissed the application for leave to appeal: Binetter v Deputy Commissioner of Taxation [2011] FCA 184. That was this morning. This afternoon, the unsuccessful applicant for leave to appeal has applied to continue the stay of the orders of the primary Judge pending an application for special leave to appeal to the High Court. 2 The decision made by me was a decision refusing to grant leave to appeal to the Full Court in the exercise of this Court's appellate jurisdiction. It was, therefore, an exercise of the jurisdiction set forth in s 25(2)(a) of the Federal Court of Australia Act 1976 (Cth). Appeals to the High Court from this Court are regulated by s 33 of the same Act. Section 33(4B)(a) provides relevantly that: An appeal must not be brought to the High Court from a judgment of the Court (whether constituted by a Full Court or a single Judge) in the exercise of its appellate jurisdiction, if the judgment is: (a) a determination of an application of the kind mentioned in subsection 25(2)… 3 The consequence of s 33(4B)(a) is that there is no right to appeal from a decision of the kind given by me this morning. Consequently, there is no proceeding to which the application for a stay could be seen as being incidental. It follows that, in principle, I should refuse the application for a stay. When this point became apparent during the course of oral argument this afternoon Ms Kaur-Bains, who appears for the applicant, applied for an adjournment of a relatively brief period of time - until Monday morning - in order to consider more fully whether there might not be an answer to the operation of s 33(4B). 4 At the same time, she pointed to s 33(4C), partially in answer to the point which had been put against her but also, I think, to give substance to the proposition that more time might result in a useful analysis of the provision. S 33(4C) provides: The fact that there has been, or can be, no appeal to the High Court from an interlocutory judgment of the Court in a proceeding does not prevent: (a) a party from founding an appeal from a final judgment in the proceeding on the interlocutory judgment; or (b) the High Court from taking account of the interlocutory judgment in determining: (i) an appeal from a final judgment in the proceeding; or (ii) an application for special leave to appeal from a final judgment in the proceeding. 5 Mr Brabazon SC, who appeared with Mr O'Brien for the Deputy Commissioner, submitted, and I accept, that this provision is concerned with the situation where interlocutory decisions are made in the course of proceedings leading to a final judgment. It preserves the well known principle that, on an appeal from such a final judgment, all interlocutory decisions may be challenged without a grant of leave. 6 Ms Kaur-Bains submitted that it should be seen as providing some succour for the notion that it would be possible to apply to appeal from the orders of the primary Judge and, in the course of dealing with that appeal, collaterally to challenge my interlocutory decision to refuse leave. I do not think that that argument is correct, largely for those reasons that Mr Brabazon SC outlined. Nor do I think that it really establishes that it would be useful to permit the further adjournment of the proceedings until Monday morning. I am sympathetic to the position that the applicant finds itself in, late on Friday afternoon, confronted with a provision such as s 33(4B), but the proposition that there is no right to appeal from a leave decision of a single judge is not an entirely unknown one, and it seems to me that the statute is sufficiently clear that I cannot be satisfied that it would be a sensible use of people's time further to adjourn proceedings. 7 In any event, even if I were satisfied that it was appropriate to adjourn the proceedings, I am very doubtful that I have any power to grant a stay. My present reading of s 33(4B) is that there is no right of appeal, and whatever power of stay I have is necessarily linked to the existence of that appeal. It seems to me that there may be logical difficulties in exercising a power to stay orders on the prospect that a right to appeal might exist. In all those circumstances, I refuse to grant a stay and I dismiss the application with costs. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.