Commissioner of Taxation v Arnhem Air Engineering and Arnhem Air Charter [1987] NTSC 26; 47 NTR 8; 90 FLR 140 (4 June 1987)

COURT IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA Asche J.(1) CWDS Justices Act - Appeals - service of Notice of Appeal out of time - s. 165 - need for appellant to do what is reasonably practicable. Justices Act - Notice of Appeal - necessity for recognisance in all cases. Justices Act - Notice of Appeal - need for separate notice for each appeal. Justices Act - Notice of Appeal - form - place and date of appeal - curable defects of substance and form - s. 166. Cases followed: Lawrie v Stokes (1951) NTJ 66 McNaughton v Grant (1966) 7 FLR Cases applied: Bowrie v Stewart [1952] NTJud 3; (1952) NTJ 83 Pushenjak v Owens (1972) 20 FLR 190 Seven v Seears (1984) NTJ 1112 Cases referred to: Atwood v Chichester Phillips v Philcox ; Homes v Thorpe ; Potter v Neave ; Jarvis v Jarvis ; Dawe v Northwood Moriarty v Moriarty Tothill v Marklew Shugman v Manz Horsburgh v Steel Christies Sands Pty Ltd v City of Tea Tree Gully Joseph v Davies Walshe v Griffen Hughes v National Trustees ; HRNG DARWIN #DATE 4:6:1987 Counsel for the Appellant: J. Reeves Solicitor for the Appellant: Australian Government Solicitor Counsel for the Respondents: D. Mildren QC and J. Tippett Solicitors for the Respondents: Mildren Silvester and Partners ORDER Appeals dismissed. JUDGE1 These are a series of appeals against sentence, or, as the respondents would contend, for reasons which will appear, purported appeals against sentence brought by the Commissioner of Taxation on the basis that fines imposed on two respondents in the Court of Summary Jurisdiction for certain breaches of the Income Tax Assessment Act were manifestly inadequate. 2. The respondents are respectively Arnhem Aircraft Engineering Pty Ltd and Arnhem Air Charter Pty Ltd. Although these are separate companies they are interconnected and by agreement in the Court of Summary Jurisdiction in Darwin all charges were heard together; and by similar agreement argument relating to the validity of all these proceedings before this court has been heard together. 3. I am not presently concerned with the substantive proceedings because the respondents have issued 2 Interlocutory Summons which, as to each series of appeals, seek that the appeals be summarily dismissed because of various defects in the formal documents initiating the appeals and in the procedures taken to bring on the appeals. By consent I have been asked to rule on these matters first. 4. The respondents were charged with offences against s. 221F(14) of the Income Tax Assessment Act for failure to pay within due time to the Commissioner certain deductions made from the salary or wages of their employees. They pleaded guilty, and monetary penalties were imposed by the learned Stipendiary Magistrate on 27 February 1987. The Commissioner takes the view that these penalties were inadequate. Notices of Appeal were filed at the Darwin Court of Summary Jurisdiction on the last possible day for doing so namely Friday 27 March 1987 but were not served until the morning of Monday 30 March 1987. That is one of the defects by reason of which the respondents submit the appeals should be dismissed. 5. The respondents rely upon a number of other defects. They submit that there was a failure to enter into recognizance on appeal, a failure to pay the appropriate fees, a failure to disclose in the Notice of Appeal the place at which the appeal was to be heard and the date upon which the appeal was to be heard and a failure to file individual notices of appeal relating to the several charges for which the respondents were convicted. 6. It is necessary to particularize the procedural failures alleged. This can be done quite briefly because they relate to specific provisions of the Justices Act. 7. By S. 163 a right of appeal is given to "a party to proceedings before the Court" (and the expression "Court" means for the present purposes the Court of Summary Jurisdiction. See S. 4.). That appeal can be, inter alia, against sentence. S. 163(1)(a). S. 171(1) provides that "The appeal shall be instituted by Notice in accordance with S. 172, by entering into such recognizance on appeal as is required under Ss. 167 and 168 and by payment of the fee specified in S. 172." 8. By S. 171(2) "Every appeal shall be instituted within one month from the time of the conviction, order or adjudication appealed against." A proviso to that sub-section allows for an extension of time by reason of remoteness from the seat of the Court of Appeal of the original Court from which the sentence, conviction or order is appealed. This does not apply here and I make no further reference to it. 9. S. 172(1) provides that the Notice of Appeal shall be in writing and shall be served upon the respondent. 10. The combination of those provisions of Ss. 171 and 172 which I have cited indicates that the time of service as well as the time of filing must be within one month. See McNaughton v Grant In that case at page 434 Bridge J. says:- "In my view, this statutory form of appeal is not instituted by the mere formulation of a notice of appeal under s. 171(1). In express and mandatory terms that subsection requires any relevant notice of appeal to be in accordance with s. 172 which in like terms requires the notice to be served in a written form on the respondent. Such service is clearly intended to be an essential element in the institution of the appeal as distinct from being a mere procedural sequel to it. Accordingly, the due institution of such an appeal must include the service, as well as the preparation, of the notice of appeal within the time allowed by s. 171(2)." 11. This and the other requirements of S. 171(1) are conditions precedent to the institution of the appeal. See the terms of S. 171(1) and Lawrie v Stokes ; Bowie v Stewart ; Pushenjak v Owens Seven v Seears It is not denied that (a) the respondents were not served until after the expiration of 1 month from the date of conviction and sentence (b) no recognizance was entered into by the appellant. S. 171(1) and s. 167(7) 12. S. 172(1)(a) provides that the notice of appeal shall state that the appellant appeals to the Supreme Court at Darwin or Alice Springs as the case requires. 13. It is conceded that this was not included in the Notices of Appeal where the place is left blank. 14. S. 172(1)(a) also provides that the Notice of Appeal shall state a day for the hearing of the appeal in accordance with sub-section (2). S. 171(2) provides that "the day specified for the appeal shall be a day upon which sittings of the Supreme Court for hearing appeals under this Act will, in accordance with the Rules of the Supreme Court, if applicable, commence at Darwin or Alice Springs .... and shall be the first such day after the expiration of twenty-one days from the service of the notice." 15. There is one notice of appeal in each case i.e where Arnhem Aircraft Engineering Pty Ltd is the respondent and where Arnhem Air Charter Pty Ltd is the respondent. In fact in each case the appeal relates to three separate charges and, presumably therefore the notices of appeal are meant to encompass appeals against six separate convictions and fines. 16. It is submitted by Mr Mildren QC for the respondents that the Act contemplates separate notices of appeal against every sentence or order which it is desired to appeal from. This, it is said, can be the only reasonable inference which can be drawn from the expression in S. 163 which gives a right of appeal from "a" conviction, order or adjudication and the requirement for the appeal to be on a ground which involves sentence or error or mistake "in every case". See also S. 171(2) which requires that "every" appeal shall be instituted within one month. See also S. 177(1) which provides that "every" appeal shall be heard and determined by the Supreme Court in a summary way. It is further submitted that there would be great practicable difficulties if the Notice of Appeal encompassed more than one appeal; since the Supreme Court might make different orders in relation to the several appeals mentioned in the notice i.e. it may allow one, dismiss one and vary one, all on the same notice of appeal. Furthermore the provision in S. 172(3) that a prescribed fee shall be paid indicates that the Act intends separate fees to be paid on each appeal and that the combining of several appeals in one notice would be an attempt to evade the payment required. DEFECTS OF SUBSTANCE OR FORM 17. Some of these objections, if valid, may be regarded as defects of substance or form and may be amended at the discretion of a Judge of the Supreme Court pursuant to S. 166. Others would appear to be conditions precedent to the right of appeal and can only be dispensed with under s. 165 and within the terms of that section. 18. The objections as to time and place of hearing are clearly matters of form and in the circumstances of these proceedings it would be proper to cure them by amendment if that were necessary. 19. I consider that, strictly, it is necessary to allow amendment as to place. 20. I note the affidavit of Mr Lew Fatt who is a clerical officer employed by the Department of Law. His affidavit is sworn on 4 June 1987 and he says in paragraph 3 that from his experience as an appeals clerk he is able to say that as a matter of practice neither the appellant nor the appeals clerk specify in the Notice of Appeal the place or day on which the appellant intends to institute and prosecute the appeal in the Supreme Court. He says "It is my understanding that the Supreme Court determines those matters and advises each of the parties to the appeal". I have no doubt that that practice has grown up; but so far as the objection as to place is concerned it seems to me that it is in fact necessary to insert the appropriate place, being either Darwin or Alice Springs. 21. There is, however, no suggestion that the respondent was prejudiced by the omission of the word "Darwin" in the notice of appeal and it was clearly contemplated that the appeal would be heard at Darwin. 22. So far as the specified day is concerned I note that the Supreme Court (Justice Appeals) Rules (Statutory Rules 1969 No. 167) which are applicable to all appeals to the Supreme Court under S. 163 also provide that sittings of the Supreme Court for hearing proceedings under these rules "shall commence at the times mentioned in the notices published from time to time in the Government Gazette" (Rule 5(1)), and "may be heard on the first day of any such sitting or as soon thereafter as counsel may be heard." (Rule 5(2)). The form of notice of appeal follows Form 63 of the Justice Regulations and that in turn follows the wording of S. 172 (2). It is not, therefore, in my view necessary to give a specific date and indeed the wording used in the form is much more practical since, if any date were given, it would almost certainly prove to be incorrect. I do not read the expression in S. 172(2) "that the day specified shall be the first such day after the expiration of 21 days of the service of the notice" as demanding that a specific date be given but rather demanding that the respondent be informed either of a specified date or that it is specified to be a date which can be calculated on the information given. This, in my view, agrees with the expression in S. 171(1)(a) that the date shall be specified "in accordance with sub-section (2)" and it seems to me that if the terms of sub-section (2) are included in the notice (as they are) the requirements of the section are satisfied. If I am wrong in this I would unhesitatingly allow the appropriate amendment. See Tothill v Marklew 23. The situation of three appeals being contained in the one notice of appeal may, if that is a defective procedure, be the subject of an amendment; but only in a limited way and in a way which no doubt would be unsatisfactory to the appellant. Again I note from the affidavit of Mr Lew Fatt that it is common practice that one Notice of Appeal is prepared and served in respect of a number of appeals if all the matters being appealed from were dealt together by the same Magistrate at the same time in the Court of Summary Jurisdiction. While I appreciate that there may be good practical reasons for that approach, it does not seem to me to accord with the approach intended by the statute. I accept the arguments for the respondent that it is defective to file one notice of appeal which relates to more than one appeal. I accept them for the reasons already advanced but more importantly because that question has already been determined by Kriewaldt J. in the case of Lawrie v Stokes In that case the appellant was charged on four separate complaints each contained in a separate document. He was convicted on all four charges and fined on two of them and sentenced to separate and cumulative terms of imprisonment on the other two. He apparently desired to appeal against the convictions which resulted in his imprisonment but he filed only one notice of appeal which purported to be "against (a) certain conviction". But he then described the "conviction" by referring to the sentences in the two cases in which he had been sentenced to imprisonment. 24. Kriewaldt J. was of the view that separate notices of appeal were necessary in relation to each conviction. At page 79 he says:- "It is implicit from what I have said that although the charges were heard together there were nevertheless four distinct matters before the Court. There were four complaints, four convictions, and four separate penalties were imposed. The fact that the four complaints were heard together did not convert them into one charge of four offences. It follows that if the appellant desired to appeal against all four convictions he was bound to give four separate notices of appeal, and similarly if he desired to appeal against two convictions, he was bound to give two separate notices of appeal. In fact there is only one notice of appeal. There is a second file in the Supreme Court No. 78 of 1951, which contains only the complaint and conviction on the assault charge and a praecipe to set down, which by the way is not even signed by the solicitor for the appellant. There is on this file no notice of appeal. I was informed on the hearing that two 'setting down' fees were paid. I have come to the conclusion that there is only one appeal before me, because there is only one notice of appeal." 25. His Honour was of the opinion that he could amend the notice at least by striking out the reference to more than one conviction. See page 80. This, His Honour proceeded to do; and obviously in fairness to the appellant he dealt with the charge which carried the cumulative sentence. 26. Following His Honour's reasoning it would therefore be open to the Court to amend the two Notices of Appeal by restricting the appeal to one charge in each case. As I have mentioned this would no doubt be an unsatisfactory result for the appellant, but it seems to me that I am bound both by principle and authority to take that course. If, as I am informed by Mr Reeves, for the respondent, some Clerks of Court are of the opinion that a number of appeals may be contained in one notice of appeal and that the respondent was so informed, then that view is erroneous. CONDITIONS PRECEDENT TO APPEAL 27. The other objections taken go not to the form and substance of the appeal but to the fulfilment of certain conditions precedent. These are mentioned by Kriewaldt J. in Lawrie v Stokes at p 69 where he says:- "The Justices Ordinance makes three matters