Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue [2003] VSCA 199

Court of Appeal (Vic)|2003-12-11|Before: ORMISTON, PHILLIPS and CALLAWAY, JJ.A.

The application to the Trial Division was commenced by originating motion and prosecuted by summons filed on 2 July 1999, supported by an affidavit of Pole Charles Cooley sworn on 2 July 1999 and a later affidavit of Tanya Cirkovic sworn on 28 October 1999, the latter serving simply to exhibit a draft notice of appeal bearing date 2 July 1999. The notice of appeal contained some 21 grounds and there is I think much to criticise in these grounds, given that an appeal from the tribunal is permitted only on a question of law. But in the end, I am not persuaded that the case is necessarily such that we should shut out the taxpayer at this early stage, the more particularly as counsel for the taxpayer indicated the wish to argue that the tribunal erred in law in failing to distinguish on the facts the earlier decisions of Byrne, J. and the Court of Appeal. It is essentially a matter for the Trial Division to consider (at least in the first instance) whether the taxpayer should have leave to appeal from the tribunal and it is in the Trial Division that the application for leave to appeal can be more fully examined. Certainly, the judge who is to hear the appeal if leave were to be given will be in the best position to determine whether and to what extent any question of law is involved and doubtless the drafting of the notice of appeal from the tribunal will attract attention in that regard.

As to costs, I suggest that the costs of the appeal to this Court from the Trial Division (which include the costs of our granting leave to appeal on 30 November 2001 by virtue of the order then made) can be left to follow the event, so that they will be won or lost according to whether leave to appeal to the Trial Division from the tribunal is finally granted or refused. The costs to date in the Trial Division (that is to say, the costs which were the subject of the order made by Balmford, J. on 29 October 1999) should be in the discretion of the judge entertaining the matter on remitter. It is not inconceivable that he or she may grant the leave to appeal but consider that, on the material before her Honour, Balmford, J. was right to refuse leave.

The circumstances in which this appeal came before the Court on 20th November 2003 are recorded in the reasons for judgment prepared by Phillips, J.A., which I have read in draft. Subject only to giving counsel for the Commissioner an opportunity to be heard on the question of remitter, I would have allowed the appeal forthwith, set aside the order made by Balmford, J. and remitted the application for leave to appeal pursuant to s.148(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998 to the Trial Division. (I would have allowed the appeal because her Honour gave no reasons. That is not to criticize the course she took, which was in conformity with existing authority and practice.) I would have directed that the application be heard by the judge who would hear the appeal from the Tribunal to the Trial Division if leave were granted.

I have been troubled by whether that is still the appropriate course now that we have heard the appeal in full; but, as the other members of the Court think it is, I do not wish to dissent. I agree with their Honours as to costs.

I certify that this and the preceding 5 pages are a true copy of the reasons for judgment of Ormiston, Phillips and Callaway, JJ.A. respectively of the Court of Appeal of the Supreme Court of Victoria delivered on 11 December 2003.

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