Ex Parte Municipal Officers Association of Australia (also cited as Re Architects of Australia Association
Ex Parte Municipal Officers' Association) [1989] HCA 13
Source
Original judgment source is linked above.
Catchwords
Ex Parte Municipal Officers Association of Australia (also cited as Re Architects of Australia AssociationEx Parte Municipal Officers' Association) [1989] HCA 13
Judgment (3 paragraphs)
[1]
Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
O'Brien & Hudson Solicitors (Offender)
File Number(s): 2010/315475
[2]
ex tempore Judgment
HIS HONOUR: Before the Court is a motion filed in Court and dealt with instanter seeking that the Court adjourn and stand adjourned until the final disposition of, or remitter of, proceedings that have been or are about to be commenced in the High Court. As an alternative to that proposition and for the purposes of today, what is sought is an adjournment for approximately two weeks.
I understand that in this motion Mr Pratten has been unrepresented and I understand, therefore, the difficulty that may be associated with the issues that have been raised. The motion depends upon, and by affidavit annexes, two documents: One of which is an application for removal under s 40 of the Judiciary Act 1903 (Cth), removing the whole of the cause now pending in the Supreme Court, which is the trial and sentencing matter. That was filed on 27 April 2016. It is now 29 April 2016. Further, on 26 April 2016, a writ of summons was filed in the High Court by Mr Pratten against the Commonwealth of Australia as defendant.
The summons says it concerns the interpretation of the Constitution, raises the limitations of a Commonwealth judicial power exercised by State Supreme Courts under Chapter III of the Constitution and refers to the "admix" of Commonwealth judicial powers and administrative functions of the Executive. It does not state with great clarity, what is said to be the administrative functions of the Executive.
Nevertheless, the summons refers to the fact that the Court was looking at or deciding "financial advantage", in the context of the understatement of income tax and it is said, pursuant to the Income Tax Assessment Act 1936 (Cth) and the Income Tax Assessment Act 1997 (Cth), that the task of determining assessable income is a task reposed in the Australian Taxation Office as an administrative act. Therefore, the submission or summons suggests beyond the power of the Court in criminal proceedings to determine whether a financial advantage exists, it being an administrative function that is inconsistent with the functions of the Court as a Chapter III court.
Now that is how I best understand the documents I have seen for the first time today. The relief sought is essentially the quashing of the guilty verdict and the permanent stay of the proceedings.
There are two aspects to it, it seems to me, with which I need to deal.
First there is, as yet (as has been somewhat tritely pointed out by the Crown), no High Court order made under s 40, either on an interim or permanent basis. There are, therefore, no orders removing from this Court the proceedings that are currently before it.
The second aspect, referred to by Mr Pratten in his submissions, is the effect the proceedings may have on any rights Mr Pratten may have under Part IVC of the Income Tax Assessment Act, being the rights of review of income tax assessments.
During the course of these proceedings, the Court has been at pains to point out to the jury and to the public that the assessment by the Australian Taxation Office of Mr Pratten's assessment is a matter almost wholly irrelevant to the issues before the Court. The only issue before the Court, in terms of the guilt of the accused, was whether there had been dishonestly and by deception the obtaining of a financial advantage.
As it happens, the financial advantage that is alleged by the Crown is the understatement of income, as a consequence of which it was necessary for the Crown to prove that it was not satisfied with the income tax that had been paid or assessed as a result of the statements made. It was then for the jury to determine whether the income tax had been understated and, if so, dishonestly and by deception.
The Crown, in its case, and the jury, in accordance with the directions, did not look at the definition of "income" under the Income Tax Assessment Act, other than that which would be income, in the ordinary sense of the term. Thus, special definitions of "income" that would require certain amounts received that might not fit the definition of "income" within the ordinary meaning were not issues that were raised by the Crown against Mr Pratten.
On the other hand, if there were special or other definitions, the effect of which was to take particular receipts out of "income", in its ordinary sense, then the Crown was not relying upon those matters.
As a consequence, whether that which is found by the Court, be it the jury or the judge on sentence, to be the understatement of income bears little or no relationship to what may or may not be assessed as income by the Australian Taxation Office. It is certainly the case that nothing this Court has done, in relation to the finding of guilt, and nothing it could do, in relation to the sentence it passes, could interfere with the independent assessment of any review that may be lodged and the subject of procedures under Part IVC of the Income Tax Assessment Act. Therefore, it does not seem to me, on the face of it, that there is an arguable proposition that involves Chapter III of the Constitution. Of course ultimately that is not a matter for me. That is a matter for the High Court of Australia. Nevertheless, in dealing with an application for an adjournment, I have to be satisfied that there is an arguable ground relating to that which is put before me in relation to the High Court proceedings.
The second aspect of that matter is, if I were found to be wrong in that assessment of the arguability of the ground, the application before the High Court is not rendered nugatory by anything I hereafter may proceed to engage upon or anything that has already happened. Indeed, as I understand that which is put before the High Court, the findings of guilt that have already been made are sought to be quashed.
The High Court will be looking at those matters that have been completed. The imposition of the sentence makes no difference to the capacity of the High Court to deal with the issues that have been raised and certainly does not render the High Court proceedings nugatory.
The third aspect is the question of timing raised by the Crown. These matters in the High Court have been filed literally at the 13th Hour.
These proceedings were originally set down for sentence late last year and were unfortunately required to be adjourned. They are now here today. The matters in relation to the High Court proceedings were filed earlier in this week while the Court, as presently constituted, it seems, was in Griffith.
The second aspect of that is that the Crown says there should be fact-finding. I am not sure that the High Court would be assisted one way or the other with the facts that I may find, given that the constitutional question does not turn on the facts as such and it is unlikely to be, in any sense, a factual question.
The last matter is a matter not raised by any of the parties but one that I should, as a matter of fullness, raise. There can be little doubt that the rules of procedural fairness may well impose a duty on a Court or Tribunal to grant an adjournment and a failure to grant the adjournment, the effect of which is to deprive a party of the reasonable opportunity to prepare or to present a case before the Court or Tribunal, would amount to a denial of procedural fairness and would be wrong and, if done, properly overturned. The authority on that question is abundant.
The authority that immediately comes to mind is the judgment of his Honour Justice Deane, then a member of the Full Court of the Federal Court of Australia, in Sullivan v Department of Transport (1978) 20 ALR 323 at 343. It was cited with authority by the High Court in Re Coldham; Ex Parte Municipal Officers Association of Australia (also cited as Re Architects of Australia Association; Ex Parte Municipal Officers' Association) [1989] HCA 13; (1989) 63 ALJR 298 and by the Full Court of the Federal Court more recently in United Voice v Restaurant and Catering Association of Victoria [2014] FCAFC 121; (2014) 226 FCR 255, but, as Justice Deane made clear and as the High Court has made clear on a number of occasions, the function of the Court is to provide a reasonable opportunity to prepare and to present the case; it is not the function of the Court to ensure that a party makes the best use of the opportunity given.
On 21 May 2013 I delivered judgment in a matter called Pratten v Commonwealth Director of Public Prosecutions [2013] NSWSC 594. Paragraph 6 of that judgment summarises the case for Mr Pratten, or part of it, and I recite the paragraph:
"By the summons, Mr Pratten also raises certain issues under the Constitution. He challenges the determination by the Court of 'financial advantage' as being 'an impermissible administrative act and...contrary to the doctrine of separation of powers'."
At [160] of the judgment the Court said this:
"I then turn to the constitutional question. The term 'constitutional question', being a submission that the Court is not entitled to determine the meaning of the term 'financial advantage' or whether a 'financial advantage' has occurred because it would constitute 'an impermissible administrative act' and be contrary to the doctrine of separation of powers."
The submission has two aspects. The first is, as I understand it, that the determination of 'financial advantage' is an administrative decision reposed in the ATO or the FCT by the Income Tax Assessment Act. The second aspect is that the Court, by equating the financial advantage with the amount owing under the amended tax assessments, has either made the tax an unconstitutional tax by denying the right of appeal or challenged or abrogated Mr Pratten's right to silence and altered the burden of proof in a criminal trial. The submission is untenable.
The fact of the matter is that judgment issued on 21 May 2013, it was argued, I hasten to add, by extremely competent counsel, who has since taken Silk and two juniors.
The judgment of 21 May 2013 was subject to an appeal to the Court of Appeal. That appeal was withdrawn in December 2013 without being heard.
The opportunity to run the very point that is sought to be run in the High Court has been given and taken. It is, frankly, inconsistent with the administration of justice now to adjourn the proceedings simply because Mr Pratten, or those that were advising him, did not take advantage of the two opportunities they had: before the Court in May 2013, when they ran the case at first instance; and after May 2013, when they filed an appeal, listed for hearing in December 2013 before the Court of Appeal and failed to pursue the appeal to its completion (namely by withdrawing two days before it was listed) and then failed to agitate the matter to completion by a subsequent appeal to the High Court.
The adjournment is refused.
[3]
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Decision last updated: 05 July 2016