Malackey Holdings Pty Ltd v Commissioner of Taxation

1. The interlocutory application be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

LOGAN J: 1 I am not persuaded that the case as presently, and I emphasise the word "presently' and perhaps that means at all, but it is necessary to qualify, nonetheless, the position by the addition of that adjective "presently" is one for transfer to the Court's (New South Wales) registry. The position on the authorities are such that the Court must be satisfied that in all of the circumstances, there is some reason to order a transfer (see National Mutual Holdings Proprietary Limited v The Sentry Corporation (1988) 19 FCR 155 at pages 161 to 162 and Australasian Jet Proprietary Limited v Air Affairs (Australia) Proprietary Limited [2017] FCA 452. 2 It is conceded that the appeal has been instituted in a procedurally correct way in the Queensland registry of the Court. As to witnesses and insofar as they are presently revealed, it is conjectural, but possible, nonetheless, that Mr Gould may be called as a witness by the substantive applicant. Malackey, the other witness is a person who spends about 75 per cent of his time in Queensland. One might apprehend having regard to the Commissioner's appeal statement (there is none as yet for good reason from Malackey) that there will be a good deal of documentary evidence tendered in the case. 3 In the digital age, where documents can be rendered in electronic form, considerations of convenience in terms of the physical location of the documents in paper form are much diminished. Truly, in relation to documentation in the digital age, state borders and for that matter, location of Court registries, can become a category of meaning its reference in relation to transfer questions. The Commissioner, according at least to his response to the tax questionnaire, has already instituted proceedings in the New South Wales Supreme Court in respect of the assessment concerned with at present there being no further recovery action. 4 It is as a matter of law, possible for the Commissioner to institute a recovery proceeding in this Court. Sometimes it can be convenient to manage a recovery proceeding in this Court in conjunction with a related tax liability proceeding. Had there been a recovery proceeding in the Court's (New South Wales) registry, that may have been a factor tending in favour of the management of that existing case in conjunction with the appeal proceeding. As it is, that is not a factor of convenience so far as a transfer to the New South Wales registry as concerned. 5 There are, as para 4.3 of the tax questionnaire filed by the Commissioner discloses, in prospect many other cases in which, in one way or another, Mr Gould has had an association. There are, as you would know, resultant appeals. I was informed without objection that the Commissioner has a retainer to counsel including senior counsel in New South Wales in respect of this and a suite of other cases which include those mentioned in para 4.3 as I understand it. That is a factor to be taken into account, but far from persuasive. Malackey has also retained New South Wales counsel, but raises no objection to the continuance of the case in Queensland and, indeed, its filing of the appeal in the Queensland registry is eloquent itself in that regard. 6 Whatever convenience there may be in a collective management of tax appeals, can be achieved at least in the first instance by coordination between judges in the Court's tax national creditors area. The point for present purposes is that I'm not satisfied on the material to hand, that there is sound reason to order the transfer of the tax appeal. That is not to foreclose the possibility of a later transfer. I need to disclose an absence of present satisfaction on present materials. For these reasons, the application is dismissed. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.