Krampel Newman Partners Pty Ltd v Commissioner of Taxation

15 The use, in the singular, of "applicant" where twice appearing in that form, is not conclusive. For one thing, the prescribed form indicates that the heading to be used is that in Form 1, which stipulates the full form of heading for each document to be filed in connection with a proceeding in the Court, including a proceeding in which there is more than one applicant, as contemplated, for example, by O 6 r 2. In the second place, by force of s 23 of the Acts Interpretation Act 1901, the singular expressions "appeal" and "applicant" in O 52B r 4 and "applicant" and "objection decision" in Form 55, are to be taken, unless the contrary intention appears, to include the plural. I have been unable to discern any contrary intention either in the actual language of O 52B or Form 55 or arising by implication from the terms of s 14ZZN of the Taxation Administration Act. In that sense, these provisions are to be contrasted with the sections of the Companies Act discussed by the Privy Council in Blue Metal Industries Ltd v Dilley (1969) 117 CLR 651. 16 It is true that a practice has grown up of confining applications under s 14ZZN to a single taxpayer and, indeed, to a single objection decision in respect of one taxpayer, so that several applications are filed on behalf of the same taxpayer in relation to successive tax years. That practice is recognised by sub-regs (2)(2A) and (2B) of the Federal Court Regulations to which Mr Steward of Counsel for the Commissioner referred. Those sub-regulations provide; 2(2A) A fee is not payable in relation to: (a) an appeal under section 14ZZ of the Taxation Administration Act 1953; or (b) an appeal from a decision of the Administrative Appeals Tribunal in its Taxation Appeals Division; or (c) an appeal from a single Judge to the Full Court in relation to an appeal under section 14ZZ of the Taxation Administration Act 1953; if the Registrar who receives the appeal is satisfied that the appeal (in this regulation called "the relevant appeal") meets the criteria set out in subregulation (2B). 2(2B) The criteria are that: (a) the person lodging the relevant appeal has lodged another appeal and has paid a fee in relation to it; and (b) the same paragraph of subregulation (2A) described both appeals; and (c) the relevant appeal concerns an issue (other than a procedural issue) that is substantially the same as an issue raised in the other appeal. 17 However, the existence of a practice which has grown up before the enactment of a particular statutory provision like s 14ZZN, cannot govern the interpretation or effect of that provision. Nor can delegated legislation like rules of court, which an Act like the Taxation Administration Act might contemplate as existing, but does not enable to be made. Moreover, O 52B finds its place in a body of procedural rules which, even though some of them are cast in imperative or peremptory terms, does not evince an intention that any non-compliance will render the resultant act null and void. Thus, O 1 r 8 provides; The Court may dispense with compliance with any of the requirements of the Rules either before or after the occasion for compliance arises. 18 On the other hand, non-compliance with s 14ZZN itself, either by exceeding the time limit or by failing to lodge with this Court anything answering the description of an appeal, will nullify the right of appeal conferred by s 14ZZ(a)(ii) of the Taxation Administration Act. An illustration of an exercise in interpretation giving effect to this distinction is afforded by the reasoning of Dixon CJ, McTiernan, Taylor and Windeyer JJ in Clayton v Heffron (1960) 105 CLR 214 at 247. In my view, Goldberg J gave effect to the distinction in Carter when he held that an application to join proposed applicants to an existing appeal did not amount to lodging an appeal within the meaning of s 14ZZN and so was a nullity. However, it was not necessary for his Honour to consider the effect of a purported appeal lodged in the name of more than one taxpayer or, in respect of more than one objection decision. Accordingly, his Honour's reasoning does not compel the conclusion that a purported appeal, having either of those features, is a nullity and incapable of enlivening the jurisdiction of this Court. 19 It was for these reasons that I ordered, on 20 July, that the Commissioner's motion be dismissed. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate: Dated: 26 July 2001 Counsel for the Applicant: Mr J Fajgenbaum QC with Mr T Murphy

Solicitor for the Respondent: Australian Government Solicitor