Westpac Banking Corporation v Commissioner of State Revenue [2005] QCA 327

Judgment (56 paragraphs)

[1]

TAXES AND DUTIES - STAMP DUTIES - APPEAL - QUEENSLAND - assessment issued against applicant by respondent based on s 67A Stamp Act 1894 (Qld) - applicant objected to assessment

[2]

ADMINISTRATIVE LAW - JUDICIAL REVIEW - POWERS OF COURT UNDER JUDICIAL REVIEW LEGISLATION - STAY OF PROCEEDINGS - further proceedings on stamp duty assessment stayed until proceedings under Judicial Review Act 1991 (Qld) completed or until further order - applicant failed to give notice of appeal within time - question when "proceedings under Judicial Review Act completed"

[3]

PROCEDURE - SUPREME COURT PROCEDURE - QUEENSLAND - PRACTICE UNDER RULES OF COURT - STAYING PROCEEDINGS - whether stay of proceedings could be extended under r 7(1) Uniform Civil Procedure Rules 1999 (Qld)

[4]

Judicial Review Act 1991 (Qld), s 12, s 13, s 29, s 48, s 49

[5]

Stamp Act 1894 (Qld), s 22, s 22A, s 23D s 24, s 54A, s 67A

[6]

Uniform Civil Procedure Rules 1999 (Qld), r 7(1)

[7]

Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529, cited

[8]

DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226, considered

[9]

FAI General Insurance Company Limited v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268, considered

[10]

O'Sullivan v Commissioner of Stamp Duties [1984] 1 Qd R 212, cited

[11]

Re Gilbert and Estate of Gilbert [1989] FamCA 95; (1989) 98 FLR 68, cited

[12]

Seltsam Pty Limited v Energy Australia [1999] NSWCA 89, considered

[13]

Westpac Banking Corporation v Commissioner of Stamp Duties [1994] 1 Qd R 99, considered

[14]

[1] McPHERSON JA: This is an application by Westpac Banking Corporation that concerns the effect of an order made by this Court on 14 May 1993 in an appeal or appeals in applications under the Judicial Review Act 1991 relating to decisions made by the Commissioner of Stamp Duties under the Stamp Act 1894. The notice of application now before us seeks: (1) an order varying an order made on that occasion in May 1993 "by terminating the suspension and stay" to which it refers, "effective on 23 November 2004 or such later date as the Court considers appropriate"; or, alternatively, (2) an order under Uniform Civil Procedure rule 7(1) or otherwise "extending until 23 November 2004 the operation of the suspension and stay" imposed by the order of 14 May 1993. The order in question, or the relevant part of it, ordered that the operation of the Commissioner's determination of Westpac's objection to the assessment based on s 67A of the Stamp Act be suspended, and:

[15]

"any further proceedings on this assessment be stayed, until the proceedings under the Judicial Review Act are completed or until further order."

[16]

[2] The questions before us concern the proper interpretation of that portion of the order, and the extent, if at all, to which it is capable now of being, and ought to be, varied by the Court. The significance of 23 November 2004 is that it was the date on which Westpac gave notice of its appeal under s 24 of the Stamp Act against the Commissioner's decision on its objection to the assessment of duty under the Act. The objection was given on 12 November 1992, and the assessed duty has been paid. To appreciate the matters at issue it is necessary to traverse the sequence of events that resulted in the present application being brought.

[17]

[3] On 4 July 1991 Westpac orally accepted a written "Offer of Fully Funded Participation" made by Chase AMP Bank. The details of the offer do not matter for present purposes, but on 18 September 1992 the Commissioner of Stamp Duties (now the Commissioner of State Revenue) decided to require Westpac to lodge a Form S(a) under s 54A of the Stamp Act 1894 (Qld) on the footing that the transaction involved the acquisition of a business. This decision has been referred to before us as the Commissioner's first decision. The second decision was made on 16 October 1992 when the Commissioner decided under s 22A of the Act to issue a default assessment against Westpac as a consequence of its failure to lodge a Form S(a). The third decision was also made on 16 October 1992 when the Commissioner relevantly decided under s 22 to issue an assessment against Westpac under s 67A of the Stamp Act on the footing that the written offer was an executed application for a loan. It was followed by the objection to that assessment on 12 November 1992.

[18]

[4] Formerly, there was no, or no readily available, procedure under the Act by means of which a taxpayer could challenge an assessment of duty by the Commissioner involving disputed questions of fact. See, for example, O'Sullivan v Commissioner of Stamp Duties [1984] 1 Qd R 212, where it was held that the exclusive avenue of challenging an assessment was by an appeal under s 24 of the Stamp Act, which required the Commissioner to state and sign a case under that section. That state of affairs changed, as this Court earlier held in this very matter, after the Judicial Review Act 1991 commenced its operation effectively on 1 June 1992. See Westpac Banking Corporation v Commissioner of Stamp Duties [1994] 1 Qd R 99.

[19]

[5] On 12 October 1992 Westpac applied under the latter Act for a statutory order to review the Commissioner's first decision requiring lodgment of the Form S(a). This was the first application for a statutory order of review (no 824/1992) of a decision by the Commissioner arising out of the dispute. The second such application (no 892/1992) was made when Westpac sought a review of the second decision of the Commissioner to issue a default assessment under s 22A. Its third challenge, directed to the issuing of that assessment, was instituted in November 1992 following Westpac's lodgment of an objection under s 23D of the Stamp Act to the assessment of duty under s 67A of the Stamp Act comprised in the Commissioner's third decision on 16 October 1992. In accordance with s 24(1A)(b) of that Act, Westpac, in compliance with the statutory condition prerequisite to appealing, paid the assessed duty on 12 November 1992, although no appeal against the decision overruling the objection to that assessment was lodged until 23 November 2004. A third application (no 916/1992) for a statutory order of review of that decision to assess duty was made on 13 November 1992.

[20]

[6] Sections 12, 13 and 48 of the Judicial Review Act provide a procedure for staying or dismissing an application for a statutory order to review on the ground, so far as relevant here, that there is some other adequate provision in law for challenging the impugned decision. On 15 January 1993, the Commissioner applied under those sections for dismissal of Westpac's three statutory review applications. Those applications by the Commissioner were all dismissed by Ryan J, but notice of appeal to the Court of Appeal against his Honour's decision was lodged by the Commissioner. The Commissioner's appeal or appeals came before the Court on 19 April 1993. In the meantime, the Commissioner had, on 7 April 1993, disallowed Westpac's objection to the Commissioner's assessment comprised in the third decision. Rather than unnecessarily duplicate the process under those sections of the Judicial Review Act, Westpac applied for an order staying the third decision and an order removing it into the Court of Appeal to be heard and determined in conjunction with the Commissioner's appeals against the orders made by Ryan J. On 19 April 1993, after hearing submissions on the appeals, the Court of Appeal reserved its decision on the appeals, but ordered a stay of the operation of the decisions to assess, the assessments, and of the decisions to disallow the objection to assessments, to operate "until the determination of this application or earlier order".

[21]

[7] As already mentioned, the Court of Appeal delivered its reserved decision on 14 May 1993. In the result, the Commissioner's appeals against the decision of Ryan J in relation to the first and second applications for statutory orders to review the Commissioner's decisions were dismissed. That meant that, in relation to those two applications, Westpac's applications to review the Commissioner's decision remained on foot. As to the third appeal, the Court allowed the Commissioner's appeal and dismissed the application to review the decision to assess while at the same time staying proceedings on the assessment under s 67A until proceedings on the other two applications were completed.

[22]

[8] For reasons that are not readily apparent, those two applications (the first no 824/1992 and the second no 892/1992) were not heard until 2002. On 24 September 2003 White J delivered reasons for dismissing the Commissioner's applications to terminate those two applications and reserved the matter of interest, and the matter of costs pending further submissions ([2003] QSC 483). On 20 February 2004, her Honour gave judgment in a form settled by the parties setting aside the Commissioner's first decision to require Form S(a) to be furnished, as well as the Commissioner's second decision default assessing duty chargeable on that Form and made declarations to that or similar effect ([2004] QSC 019). Her Honour also ordered that the Commissioner refund with interest (the rate of which she fixed) the amounts paid by Westpac, and that the Commissioner pay the costs of and incidental to those two applications.

[23]

"(1) A person who is dissatisfied with the determination of an objection may, within 30 days of being notified of the Commissioner's decision on the objection, appeal against the assessment to the Supreme Court.

[24]

(a) written notice of the appeal is served on the Commissioner within 30 days of the person being notified of the Commissioner's decision on the objection; and

(b) the duty assessed and $200 for costs are paid on or before the serving of the notice of appeal."

[25]

The Commissioner's decision (the third decision) on Westpac's objection to the assessment of duty pursuant to s 67A was notified to Westpac on 7 April 1993, which was some 12 days before the appeals came to hearing in the Court of Appeal on 19 April 1993. That was the occasion on which the Court made its interim order staying the operation of the decisions to assess, the assessments, and the decisions to disallow objection to the assessment "until the determination of this application or earlier order".

[26]

[10] Plainly enough, the purpose of that part of the order was to maintain the status quo until the Court determined the application or until earlier order. And when the Court delivered its reserved judgment on 14 May 1993, it made a similar order suspending the operation of the Commissioner's determination of the objection to the assessment based on s 67A of the Act, and staying any further proceedings on that assessment until the proceedings under the Judicial Review Act were completed. It is the interpretation of this order that is the first question here.

[27]

[11] The reason why the Court of Appeal took that course calls for some explanation. It can be gathered from the reasons for judgment, to which we were invited to refer in interpreting the order. What those reasons reveal is that the Commissioner's appeals were dismissed, enabling Westpac's applications for review to proceed, whereas (reversing in this instance the decision of Ryan J), Westpac's application (no 916 of 1992) to review the Commissioner's decision to assess was dismissed with costs. In respect of it, the Court held that "no factual issue appears to arise" in relation to that matter, from which it followed, the Court said, that there was therefore "adequate provision" in the form of an appeal under s 24 of the Stamp Act by which Westpac was entitled to seek a review of the assessment the subject of the third application (no 916 of 1992).

[28]

[12] That would, one might have expected, have been the end of that application no 916 of 1992. But the Court went on to say ([1994] 1 Qd R 99, 105):

[29]

"the possibility no doubt remains that the resolution of the first and second applications will raise some factual issues common to those raised in any future s 24 appeal against the assessment based on s 67A. In our opinion, however, this difficulty can be overcome by this Court granting a stay of any further proceedings on this assessment until the determination of the judicial review applications."

[30]

It was to cater for that possibility of "a future s 24 appeal" that the Court made the order that further proceedings on the assessment based on s 67A be stayed "until the proceedings under the Judicial Review Act are completed or until further order".

[31]

[13] The problem for Westpac is that it did not at first give written notice of its appeal within the time allowed by s 24 of the Stamp Act. It did not serve it on the Commissioner until 23 November 2004, which was well outside the period of 30 days prescribed in s 24(1A) for doing so from notification of the Commissioner's decision disallowing the objection. Notification of the Commissioner's decision on the objection was received by Westpac on 7 April 1993, so that, when the Court of Appeal delivered its decision on 14 May 1993, the time for serving the Commissioner with notice of Westpac's appeal had, on the face of it, already expired. Of course, in the meantime, the Court had on 19 April 1993 stayed proceedings on the decision to disallow the objection to the assessment until determination of the application; and on 14 May 1993 it further stayed the proceedings on that decision, in this instance "until the proceedings under the Judicial Review Act are completed or until further order".

[32]

[14] It is accepted that "until further order" means, as it clearly does, until further earlier order. The question is therefore to decide whether and when the proceedings under the Judicial Review Act were "completed". We were referred to various decisions in which courts have considered whether final orders of superior courts may or may not be varied after being passed and entered: for example, Re Gilbert and Estate of Gilbert [1989] FamCA 95; (1989) 98 FLR 68, 81. The question here, however, is ultimately one of interpretation of the Court's order made on 14 May 1993 and, in particular, what is meant in that order by "the proceedings under the Judicial Review Act are completed". It was submitted by Mr Dorney QC for the Commissioner that the proceedings under that Act were completed on 20 February 2004, when White J made her order setting aside the Commissioner's decisions (the first and second decisions) requiring lodgment of Form S(a) and default assessing duty on that Form. On that date, or within the further time allowed for disposing of any appeal against the order, the proceedings were "completed" and the stay came to an end. On the other hand, Mr McKenna SC for Westpac submitted that the proceedings under that Act had not yet been completed because White J had ordered the Commissioner to pay the costs of and incidental to those applications to be assessed, and the assessment of those costs remained and still remains to be carried out.

[33]

[15] Mr McKenna SC sought to derive some support for his submission from the fact that, in its applications for statutory orders to review, Westpac had on each occasion sought orders for costs, and that the Judicial Review Act in s 49 contains specific provisions concerning the court's powers in applications under that Act concerning the disposition of costs, with the consequence that the order for costs made by White J was made under that Act. It is only "subject to this section" that by s 49(4) the ordinary rules of court in relation to awarding costs apply to a proceeding arising out of a statutory review application under provisions of that Act.

[34]

[16] I am, with respect, unable to accept this submission. The question is one of deciding what the Court of Appeal intended when it spoke of the proceedings under the Judicial Review Act being "completed". The evident purpose was to defer the operation of the assessment until the Court determined the applications for statutory review of the Commissioner's first two decisions. That event took place when Justice White gave her judgment on 20 February 2004, or at latest when that order was pronounced and the time for appealing against it expired without an appeal being instituted. The Court of Appeal could scarcely have had in mind that the stay it ordered should continue until the costs were assessed, whenever in the future that might be. There would have been no reason or justification for deferring the operation or effect of the assessment until a date as late as that. Indeed, as we have already seen, the only reason for staying the proceedings at all (in which Westpac's application was dismissed) on the assessment under s 67A was the possibility that resolution of the first and second applications might, as the Court said, raise "some factual issues common to those raised in any future s 24 appeal against the assessment based on s 67A"; and, even as to that, the Court said "we think that no such problems will arise" ([1994] 1 Qd R 99, 105). In the event, that prediction proved to be correct; but, as a matter of caution, the possibility was catered for in the judgment given on 14 May 1993 by staying proceedings on that assessment until the other two statutory review proceedings were determined or "completed". That event took place, in my opinion, when White J made her orders on 20 February 2004, and no appeal was instituted against them.

[35]

[17] It follows in my view that the first of the orders applied for in the application before the Court should be refused. The order there sought is, it will be recalled, that the order of the Court of Appeal made on 14 May 1993 staying proceedings on the assessment be varied by "terminating the suspension and stay" to which it refers "effective on" (which I take to mean with effect from) 23 November 2004 or some later date. As mentioned earlier, the date 23 November 2004 was evidently chosen because it was the date on which Westpac served on the Commissioner its notice of appeal against the decision to assess duty. The form of the order seeking termination of the stay with effect from 23 November 2004 assumes that the stay had not already been exhausted when the proceedings were completed by judgment on 20 February 2004. Because, for the reasons given here, that assumption is misconceived, the relief asked for in para 1 of the application to this Court should be refused.

[36]

[18] This leaves the alternative or second form of relief sought in the application before us, which is for an order under rule 7(1) of the UCPR or otherwise "extending until 23 November 2004 the operation of the suspension and stay" referred to in the order of 14 May 1993.

[37]

[19] Rule 7(1) is in the following form:

[38]

"(1) The court may, at any time, extend a time set under these rules or by order."

[39]

Here the time set under or by the order of 14 May 1993 was until the judicial review proceedings "are completed or until further order". It may, on the authority of the decision of the High Court in FAI General Insurance Company Limited v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268, be accepted that a rule in the form of UCPR 7(1) may, as the Rule itself declares, be extended "at any time", even though the time set for the doing of an act under the judgment or order has passed. The order made in that instance was "self-executing" in the sense that proceedings were to stand dismissed unless particulars and security for costs were provided on 30 May 1986. They were not so provided, but the High Court held that there nevertheless was power to extend the time for providing those particulars and security even after that date. The provisions of UCP Rule 7(1) do not in material respects differ from the rule considered there by the High Court.

[40]

[20] The first question that falls to be determined is one of interpretation of r 7(1). The Rule is plainly not capable of being applied to authorise the extension of a time fixed by a statute (of which there are countless numbers) specifying limits for doing an act. So much is evident from rule 7(1) itself, which is limited to a time set "under" the Uniform Civil Procedure Rules or by order, meaning an order of a court or judge. Here the time for appealing against the Commissioner's decision is set not by any Uniform Civil Procedure rule or court order but by or under s 24(1) of the Stamp Act. It authorises an appeal against the determination of an objection within 30 days of being notified of the Commissioner's decision on the objection, while s 24(1A) declares that the appeal is "not effective" unless written notice of it is served on the Commissioner within 30 days of the appellant being notified of the Commissioner's decision on the objection.

[41]

[21] The Court therefore has no power under rule 7(1) or otherwise to alter or extend that 30 day period of time set under s 24(1) of the Stamp Act within which to appeal; and, if it purported to do so, the appeal would, according to, s 24(1A) be "not effective". Being unable to find in the Rules a power to extend the time for lodging an appeal under s 24 of the Stamp Act, Westpac turns to the order itself and asks that the time set by that order be extended to 23 November 2004, that being the date on which the appeal against the assessment, or written notice of it, was served on the Commissioner. The difficulty is, however, to know why the Court should extend that time. The order that the proceedings on the assessment be stayed was to endure only until the proceedings under the Judicial Review Act were completed, which, as I have held, occurred on 20 February 2004. The order staying those proceedings has therefore fulfilled its intended purpose. There is now no other purpose that it can legitimately serve.

[42]

[22] What, however, is sought by Westpac is that the order should be applied to a different purpose, in effect by extending the time within which its appeal against the assessment ought to have been lodged so as to save the appeal from being ineffective under s 24(1A). I cannot see why the Court should now take that step. To do so would convert an order which was granted for a specific and limited purpose into an order intended to serve another and quite different purpose, namely that of avoiding or circumventing a quite explicit statutory provision imposing a limit on the time for appealing against the Commissioner's assessment or his decision on the objection to it. That is something which, in my opinion, the Court cannot and ought not to do.

[43]

[23] The purpose of making the stay order was, as I have said, to maintain the status quo pending determination or "completion" of the proceedings on the first two applications 824 of 1992 and 892 of 1992, to which the third application (the dismissal of which was confirmed by the Court of Appeal) was at most ancillary. The power under which the Court of Appeal acted in ordering the suspension and stay is contained in s 29(2)(a) and (b) of the Judicial Review Act, which authorise the Court or a judge to "suspend the operation of the decision" sought to be challenged and to "order a stay of any proceeding under the decision". No doubt the effect of the stay was, and was intended, to place an embargo on the operation of the Commissioner's assessment or, more specifically, his decision on the objection to it. Presumably, it went so far as to prevent Westpac itself from serving written notice of its appeal on the Commissioner. Doing so would or might have amounted to a "proceeding" which was itself stayed by the order of 14 May 1993, although it can hardly be doubted that, if asked to do so, the Court would have lifted the stay to the extent needed to enable notice of appeal by Westpac to be served on the Commissioner under s 24.

[44]

[24] In support of its application for an order extending the stay until 23 November 2004, Westpac filed affidavits directed to explaining how that step was overlooked. On 1 July 1998, Mr Quinlan became a partner of the firm of Sydney solicitors who were acting for Westpac. Before then, he had assisted another partner in the subject proceedings against the Commissioner. He first became involved in the matter shortly after the Court of Appeal delivered its order on 14 May 1993. He says that, as a result, he was involved only in acting for Westpac in the first two proceedings nos 824 and 892 of 1992, and his knowledge of the proceedings in no 916 of 1992 was limited essentially to knowing that the operation of the Commissioner's determination of the objection to the assessment based on s 67A had been stayed. Later, in August 2003, he transferred the file to Ms Nygh, a senior associate of the firm, who under his supervision has been in charge of the matter since September 2003. When White J delivered her judgment and orders in February 2004, Mr Quinlan "did not focus on whether or not there was a need to reagitate the issue of the section 67A assessment" by having the stay of the Commissioner's assessment lifted.

[45]

[25] Ms Nygh first undertook work on the file in this matter on 23 September 2003, when she learnt that judgment was due to be delivered by White J on the following day. After discussions with junior counsel and after perusing the file, she formed the conclusion that the Commissioner's determination in relation to the s 67A proceedings had been stayed until the completion of the judicial review proceedings and that "it would be necessary for either Westpac or the Commissioner to apply for an order removing the stay" in relation to the s 67A assessment. She thought it was a separate issue that would not be determined by the judgment of White J. It was not until late August 2004 (which was some six months after her Honour's judgment was delivered in February) that she appreciated the issues in dispute between Westpac and the Commissioner. In the meantime, from March to May 2004 she was thoroughly immersed in another matter preparing for a two-month hearing in May 2004. It was only when she fully examined the file in late August, that she sought instructions from Westpac and in September 2004 obtained counsel's advice on the question.

[46]

[26] The person from whom Ms Nygh sought instructions at Westpac is Ms Hanna, a solicitor and "in-house" counsel with the Bank. It was in 2003 that she learned of the s 67A assessment and that it was subject to a stay. In September 2003 she was informed of the impending decision of White J, but "was not aware of any time limit on resolution of the section 67A assessment". She did not become aware of the wording of the orders made by the Court of Appeal on 14 May 1993, or that there was any "time limit on the resolution of the section 67A assessment", until she had a telephone conversation with Mr Quinlan and Ms Nygh in late August 2004. By a "time limit on the resolution" of that assessment, she appears to be referring to the operation of s 24 taken with the stay ordered on 14 May 1993.

[47]

[27] One may to an extent sympathise with each of these deponents. Most of them came to the matter, which is superficially not immediately easy to follow, some ten years after the order was made in May 1993 that it is now sought to extend in time. What is, however, difficult to understand is why notice of appeal was not given when the Commissioner's decision on Westpac's objection to the assessment was notified on 7 April 1993. The interim stay on the proceedings concerning that decision was not granted by the Court of Appeal until 19 April 1993, so that notice of Westpac's appeal could readily have been given within that period of 12 days at a time when minds were focused on it. Furthermore, appeal against that decision could, with the authority of the Court, have been given at any time after that date until 20 February 2004, when the stay came to an end of its own inanition upon completion of the judicial review proceedings. Even after that date, a further 18 of the original 30 days remained in which to serve notice of appeal on the Commissioner, which could have been done on or before 9 March 2004. The earlier pre-publication of reasons by White J in September 2003 should have alerted those then responsible for looking after the matter of the need for closer examination of the file and the reported judgment of the Court of Appeal, as well as of the existence of the stay imposed in no 916 of 1992, the reason for granting it, and its duration.

[48]

[28] On the material contained in the affidavits, I would not be prepared to exercise the discretion, if any, to extend the time set by the order of the Court of Appeal on 14 May 1993. In any event, the affidavits do not explain why written notice of appeal was not given or served when or soon after being notified of the Commissioner's decision on the objection on 7 April 1993. That would have been the natural and prudent time to give it. No doubt those responsible for it then have long since moved to other pastures. Perhaps it was because Westpac and its advisers were confident of succeeding in its appeal in no 916 of 1992; or perhaps it was because they thought that, by giving notice of appeal under s 24, they would or might prejudice their contention that there was no adequate provision for challenging the assessment except by judicial review. If so, the assumption was, as it turns out, not well founded. But, in any event, we do not know, because no evidence was, or perhaps because of the lapse of time can now be put forward to explain why notice of appeal was not given at that time in April 1993. Indeed, it is not, even now, said by any of those concerned that they were ignorant of the peremptory terms of s 24. It is true that the amount at issue is large. But the matter is left to the Court simply as one in which the requisite notice under the statute was not given within the specified time, but only some 10 or 11 years later. It may prove to be an expensive oversight, but it is not one that the Stamp Act authorises this Court to cure by any means at its disposal.

[49]

[29] It was submitted by Westpac that, ever since the Judicial Review Act came into force, the Stamp Act has to be read subject to that Act; and that the Court is now invested with power (which was exercised in this very case in 1993) to modify the unremitting terms of s 24. But that step was taken in 1993 only for the specific and limited purpose of ensuring that the Court's determination of the matter in dispute between the parties was not rendered futile pending completion of those proceedings. Once that stage was reached in 2004, however, there was no legitimate reason for any further stay. But this is simply to repeat what has already been said earlier in these reasons.

[50]

[30] I do not consider that Westpac is entitled to succeed on its application to this Court. It must be dismissed with costs.

[51]

[31] JERRARD JA: In this application I have read, and respectfully agree with the reasons for judgment and orders proposed by McPherson JA.

[52]

[32] Regarding the proper construction of this Court's order made on 14 May 1993, and the reference therein to "completed" proceedings under the Judicial Review Act 1991 (Qld), this Court and other courts do not in practice or principle assume that proceedings continue past the date of final orders, or that for lodging (un-lodged) appeals against those orders. The possibility, increasingly faint as time passes, that there may be a successful application one day for leave out of time to argue a late appeal does not mean that proceedings have not been completed in which final orders have been made.

[53]

[33] The proposition that proceedings are not completed while a taxation of costs incurred in them is still undergoing, with that taxation happening because of orders made in those proceedings for payment of costs, would, if successful, have the effect of justifying applications for leave to appeal out of time irrespective of statutory time limits, while costs were still not assessed, or perhaps though assessed were unpaid. But refusal or failure to assess or pay costs does not prolong or re-open or leave uncompleted the otherwise completed proceedings in which those costs orders and other final orders were made. The remarks in Seltsam Pty Limited v Energy Australia [1999] NSWCA 89, at [36] therein, should be taken to convey no more than that costs can be taxed, and orders for costs can be executed, although proceedings are at an end; those steps are permitted because of the court's final orders. Regarding the court that made those final orders, the position is as restated by Barwick CJ in Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529 at 530, in the passage approved in the joint judgment in DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226 at 245, which reads:

[54]

"Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a court to a have a power to reinstate a proceeding of which it has finally disposed."

[55]

[34] I respectfully agree with Mr Dorney QC for the Commissioner that Seltsam v Energy Australia and FAI General Insurance Company Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268, on which the applicant relied, were cases involving self-executing, and accordingly, conditional, orders; which orders by their nature may involve a further judicial determination of whether or not the relevant condition has been met. There was nothing contingent or conditional about the orders made in this Court on 14 May 1993, and therefore those cases do not help the applicant.

[56]

[35] WILSON J: I agree with the reasons for judgment of McPherson JA and with the order his Honour proposes.

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