O'Neill v Deputy Commissioner of Taxation

Consideration 26 I accept the submission of counsel for the respondent that ambiguity is not required before regard may be had to context when construing a court order, including consent orders: Australian Energy Ltd v Lennard Oil NL (No 2) [1988] 2 Qd R 230 at 232 (Andrews CJ, Kelly SPJ agreeing); Yates Property Corporation Pty Ltd v Boland [1998] FCA 1605; 89 FCR 78 at 78-79 (Drummond J, Sundberg J and Finkelstein J agreeing); Kirkpatrick v Kotis [2004] NSWSC 1265; 62 NSWLR 567 at [39]-[45] (Campbell J); AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81 78 NSWLR 302 at [98] (Campbell JA, Handley AJA agreeing). This approach is coherent with the modern principles of statutory construction, and with recent statements relating to the construction of contracts involving the identification of the commercial purpose or object of a contract: Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 at [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ); Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; 256 CLR 104 at [49] (French CJ, Nettle and Gordon JJ). Furthermore, recourse may be had to correspondence between the parties to ascertain the objective intention of the parties to consent orders: Cassaniti v Paragalli [2006] NSWSC 50 at [18] (Campbell J). That is because in some instances, as here, the consent orders are the embodiment of an agreement between the parties. I therefore reject the submissions of counsel for the applicant that the scope of contextual material to which the Court may have regard is limited to pleadings, reasons for judgment, and possibly evidence upon trial. The authorities do not support that limitation. 27 Kirkpatrick v Kotis, referred to above, concerned a charge of contempt of an order made by consent. Campbell J held at [57] that for the purposes of determining whether there was ambiguity in an order such that the order lacked the degree of clarity necessary to sustain the charge of contempt, it was permissible in the case of a party to the consent order to look to surrounding circumstances as an aid to construction. 28 As a question of construction, I do not consider that paragraph 1 of the Court's orders of 6 November 2020 had the effect of discharging the injunction granted by the orders of 17 December 2019. The reference to discharging extant orders is properly to be construed in context as the extant timetabling orders identified in the parties' minute of consent orders dated 5 November 2020. That is because: (1) it is permissible, particularly in the case of consent orders, to have regard to context in construing the orders; (2) ambiguity on the face of the orders is not necessary before regard may be had to context as an aid to construction; (3) nonetheless, the term "extant orders" invites attention to context so as to determine what orders were extant and thereby discharged; (4) when regard is had to context in this case, the objective intention of both parties in seeking the orders was unambiguous and clear, namely to do no more than to adjust the timetable of steps to prepare the matter for hearing; and (5) the orders of 17 December 2019 were also made as a result of an agreement between the parties, and by their terms contemplated a variation as a result of express agreement between the parties, which has not occurred. 29 Notwithstanding my conclusion in relation to the question of construction of the orders, I decline to make a declaration as sought by the respondent. That is because ordinarily a declaration is a final declaration of right, and the effect of granting a declaration may be far-reaching. In this case, a declaration may bear upon any contempt proceedings that might be brought against the applicant, or any person who is alleged to have knowingly assisted him in breaching the orders of 17 December 2019. On any such application, the question whether the orders made on 6 November 2020 led to any ambiguity such that a contempt charge could not be sustained may arise: see, Australian Consolidated Press Ltd v Morgan [1965] HCA 21; 112 CLR 483 at 515-516 (Owen J). It would not be appropriate in this interlocutory hearing to make a declaration that may conceivably encroach on that issue. 30 The objective purpose of the orders made on 6 November 2020 was to give effect to the parties' agreement that the timetable be varied in the manner proposed by the parties' correspondence, and as evidenced by the minute of consent orders provided to the Court. It would have been better if the Court had followed the form of the parties' consent rather than substituting its own form of words for paragraph 1 of the orders of 6 November 2020, and which has recently given rise to disputation between the parties. To that extent, the order did not reflect the intention of the Court, and there is an error arising from an accidental slip or omission, thereby engaging the Court's power under r 39.05(e) and (h) to vary the order after it has been entered. Moreover, the order was interlocutory, and this feature of the order is sufficient to engage the Court's power to vary it: r 39.05(c). Therefore, the power of the Court in this case is broad, and is not confined to the circumstances in r 39.05(e) and (h). It is open to the Court to vary the terms of the order in the same way the terms of an instrument might be rectified in equity, but without the constraints of equitable principles. The power may be exercised in furtherance of the overarching purpose in s 37M of the Federal Court of Australia Act 1976 (Cth) by quelling a dispute about the meaning of the text of the Court's orders of 6 November 2020, when the objective purpose was clear beyond argument, and was the subject of agreement between the parties. The effect of the order for variation would be that the variation would speak from the date that the original orders of 6 November 2020 were made: see, Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd [1995] FCA 943; 61 FCR 385 at 391 (Lockhart J, Black CJ agreeing); VFS Group Pty Ltd v BM2008 Pty Ltd (in liq) [2010] VSCA 277; 80 ACSR 240 at [25] (Tate JA, Nettle JA and Harper JA agreeing). 31 The applicant adduced no evidence of any prejudice that he would suffer if the order were varied, including with effect nunc pro tunc so as to reflect the objective intention of the parties to the proceeding and of the Court at the time the order was made. There is no evidence that the applicant has acted, or has refrained from acting in reliance on some belief that the orders of 17 December 2019 were discharged. On the contrary, it appears from the terms of the letter from the applicant's solicitors to the respondent's solicitor dated 17 December 2020, to which I referred at [12] above, that the applicant was well aware of and conscious of the operation of the orders made on 17 December 2019 prior to the sale of the Mitcham property. That is because the applicant sought a variation of the orders so as to permit the sale. An order varying the terms of the order of 6 November 2020 with effect nunc pro tunc should not prejudice the applicant if contempt proceedings were brought against him for breach of the orders of 17 December 2019. It would remain open to the applicant to argue, if the material permitted, that the operation of the order at the time of any alleged contravention was ambiguous such that a finding of contempt should not be made. 32 Finally, it is appropriate to enter an amended form of the interlocutory orders made on 17 December 2019 with the endorsement required by r 41.06, as the orders have continuing effect. The purpose of an endorsement under r 41.06 is to give notice to parties served with an order requiring that a person is not to do an act or thing, of the consequences of disobedience of the order where those consequences may be committal, sequestration or punishment for contempt. However, this purpose is to be considered in the context of r 41.07(2), which provides that personal service of an order mentioned in r 41.06 is not required if the person was present when the judgment was pronounced or the order made, or if the person was notified of the terms of the order orally, by telephone, or electronically. In this case, the injunctive orders made on 17 December 2019 were made by agreement between the parties which was reflected in a minute of consent orders dated 13 December 2019 that was signed by the parties' solicitors. 33 In my view, the entry of an amended form of interlocutory orders with an endorsement required by r 41.06 may be achieved by an order made under r 1.32, which authorises the Court to make any order it considers appropriate in the interests of justice. Further, in Director of Consumer Affairs Victoria v Gibson (No 4) [2018] FCA 1868, Mortimer J held at [63]-[67] that r 39.05 may also be a source of power, because the power in r 39.05 to vary an order includes the power to vary any part of the document constituting the order. 34 In the circumstances of this case, I shall order that an amended form of the interlocutory orders made on 17 December 2019 be entered with the addition of an endorsement that complies with r 41.06. The text of the amended form of interlocutory orders shall note that the endorsement has been added pursuant to the Court's order made today. A documentary form of the orders with the endorsement as entered may then be served, if required. The legal consequences of the absence of the endorsement on the interlocutory order as originally entered is not an issue currently before the Court: see the detailed discussion by Mortimer J in Director of Consumer Affairs Victoria v Gibson (No 4) at [57] and [73]-[100] and the cases cited therein.

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Judgment (7 paragraphs)

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Cases Cited (10)

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