RESTRICTED DISTRIBUTION 19% IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) OLD G9 of 1986 GENERAL DIVISION ) BETWEEN : MARINA ESTATES PTY.LTD. Applicant AND: THE COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA Respondent SPENDER J 21 MAY 1986 PULING Q consideration, I have reached the conclusion that the proper course for me to adopt is to decline to determine whether leave to appeal should or should not he granted and to direct that the application for leave to appeal from the judgment of Mc. Justice Enderby 1n the Supreme Court of New South Wales be heard by a Full Court of the Federal Court. The circumstances leading to this conclusion are these: Marina Estates Pty.Ltd. lodged objections against assessments in respect of income derived by it for the year ending 30 June 1972 and for the period 1 July to 9 August 1972, notices of which were issued on 15 August 1972. The objections were disallowed by the Commissioner, and the taxpayer requested that the decision be referred to a Board of Review. The Board of Review No.2 confirmed the assessments on 22 March 1984. The notices of objection contained many grounds, some being of fact and others of law. Pursuant to s.196(1) the taxpayer appealed to the Supreme Court from the decision of the Board. Section 196(1) of the Income Tax Assessment Act 1936 provides:- "The Commissironer or the taxpayer may appeal to a Supreme Court from any decision of the Board that involves a question of law." The taxpayer appealed by a Notice of Appeal dated 3 May 1984, which was filed in the Supreme Court of Queensland on 31 May 1984. On 3 May 1985, Ryan J. of the Supreme Court of Queensland made an order pursuant to s.184C of the Income Tax Assessment Act transferring the matter to the Supreme Court of New South Wales. The taxpayer then filed a Notice of Motion seeking to amend the Notice of Appeal, which was heard by Enderby J. on 20 December 1985. The broad purpose of the application to amend was to include grounds which had been set out in the original Notices of Objection but which had not been argued before the Board of Review. On that day his Honour refused the application. Other matters for his Honour's determination were adjourned. On 5 February 1986, a document headed "Application for Leave to Appeal" was filed in the General Division of the Queensland District Registry of the Federal Court of Australia. That document recites:- "1. The applicant applies for leave to appeal from the judgment of the Honourable Mr. Justice Enderby in the Supreme Court of New South Wales. 2. Leave to appeal is required by section 196(5) of the 'Income Tax Assessment Act 1936'. 3. The grounds of the application appear in the annexed affidavit. 4. The applicant applies for an order that compliance with Order 52 sub-Rule 5(2) be dispensed with." On its face, there is nothing to suggest that the applicant wishes the application to be heard by a single judge or by a Full Court. Section 196(4) provides:- "Except as provided in sub-section 5, an appeal does not lie from the decision of a Supreme Court constituted by a single Judge on an appeal or reference under this section." \ And 196(5) provides:- "The Commissioner or the taxpayer may appeal against a decision of a Supreme Court on an appeal or reference under this section - (a) by leave of the Federal Court of Australia to that Court; or (b) by special leave of the High Court, to that Court." (I note, in passing, that in the course of discussions before me the question was posed whether the decision of Enderby J. refusing the application to amend the Notice of Appeal to the Supreme Court 1s a "decision" to which s.196(5) applies.) The matter was listed by the Registrar before me and, when the matter was called on, senior counsel for the taxpayer at the outset said that it wished the application for leave determined by a Full Court. He frankly stated that "the matter was set down today without there being awareness of the decision of the Full Court in Reid v. Nairn 60 A.L.R. 419." The applicant's request was not based on s.25(6) of the Federal Court of Australia Act, 1976. The dilemma confronting the applicant is based on the provisions of s.25(2) of the Federal Court of Australia Act 1976, which provide:- "(2) Applications for leave or special leave to appeal to the Court or for an extension of time within which to institute an appeal may be heard and determined by a single judge or by a Full Court and the Rules of Court may provide for enabling such applications to be dealt with, subject to conditions prescribed by the Rules, without an oral hearing." In Reid v. Nairn (1985) 60 A.L.R. 419, the Full Court of the Federal Court consisting of Fox, Forster and McGregor JJ., concluded that the question of leave to appeal to the Federal Court is to be decided by either a single judge or the Full Court, whichever is first seized of the matter. They are true alternatives and not progressive, and thus there is no appeal from a decision of a single judge refusing or granting leave to appeal. Hence, a party wishing to appeal from an interlocutory order must elect whether a single judge or the Full Court be approached. Here the short point for the taxpayer is that there has never been an election by it as to whether the application for leave to appeal should be heard by a single judge or by a Full Court and, in those circumstances, it now indicates that it wants the question of whether leave should be granted to be determined by a Full Court of the Federal Court. The decision in Reid v. Nairn was followed by a Full Court, constituted by Smithers, Lockhart and Neaves JJ., in General Motors Holden's Limited v. Noack, (unreported, 7 March 1986). Those cases establish that, had there been an election to have the question of leave determined by a single judge, that single judge's decision as to whether or not leave should be granted would not be able to be reviewed in any manner by a Full Court. As the joiunt judgment of Fox and Foster JJ. in Reid v. Nairn (supra) at 421 indicates:- "A party wishing to appeal from an interlocutory order has to make an election whether the judge or a Full Court should be approached for leave." It follows that whether the application for leave is to be heard by a single judge or by a Full Court is a matter of choice for the taxpayer in the present instance. I do not think the applicant's mind turned to that choice until shortly before its appearance before me. It then clearly indicated through 1ts counsel that it did not wish the application to be heard bya single judge, but by a Full Court. I did it fact proceed to hear submissions on whether leave should be granted. In the light of the conclusion I have reached on the preliminary question, 1t is unnecessary to express any views on the merits of those submissions. Indeed, any such views are quite irrelevant. The application for leave to appeal, which on its face evidences no such election as to who should determine the application, in the circumstances that have occurred, should be heard by a Full Court of the Federal Court. mesoding eeetter rine