IN THE FEDERAL COURT ) OF AUSTRALIA ) WESTSRN AUSTRALIA ) ) GEMERAL DIVISION No. WAG 13 of 1987 On Anpeal From the Supreme Courl of Western Australia BETWER Ns: CONNMISSIONER OF TAXATIOU OF TUE CONMONVEALTH OF AUSTRALTA Appellant and GUNTER THIEL Respondent HINOUTE OF ORDER JUDGE NAKING ORDER: FRENCH J. DATE OF ORDER: 3 FEBRUARY 1987 WHERE MADE: PERTH TUL COURT ORDERS THAT: 1. No order on application For leave to appeal. 2. No order as to costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules (See also Order 37 rule 2{3).) iit THE FRDERAL COURT ) OF AUSTRALIA ) WOSTEPM AUSTRALIA ) ) OPNUPAL DIVISION No. VAG 33 of 1987 On Appeal From the Supreme Court of Vestern Australia BUCUTtune: Ns: COUMISSTONGSR OF PLAXATION OF THR CONNOMGRALTH OF ALISTRALTA Appellant and GUNTEP THIEL Respondent CORAM: FRENCH J. 3 February 1986 DX TENPORE REASONS TOR JUDGMENT On 23 January 1987, the applicant, Conmissioner of Taxation, filed a notice of apneal in this Court against an interlocutory decision of his Henour, Ur Juetice Vallace, on appeal proceedings pending in the Suprene Court of festern Australia, between the Commissioner and the respondent taxpayer, Gunter Thiel, under Part V of the Income Tax Assessment Act 1936. On 28 January 1987, the Commissioner Filed an application for leave to appeal Crom the sane decision in this Court. On 30 January 1987 I heard an urgent motion on the nart ol the taxpayer, secking to set aside the notice of appeal. T adjourned that motion by order on that date and yave oral reasons for so doing, which have now been reduced to writing and will shortly be circulated to the parties. Subsequently, the taxnayer coughet to list the Commissioner's application for Ilcave to appeal for hearing, P on 2 February 1987. Because cf the unavailability of counsel for the Cemmissioner at that time, the matter vas listed for heering today. The taxpayer contends that it is appronriate and uryent that T should deal with the application for leave to appeal torlav. He contends that I heve juristiction to do so end that the Commissioner has elected to havo the annlication cealt with by a single judge, an election from which 1t 13 said he cannot retreat. The application for Jeave to appeal From the order of his [lonour, 'Iv Justice Wallace, was not argued before me cn 30 January, although the affidavit in support of that application was referred to by consent of the parties in relation to the taxpayer's motion to set aside the notice of appeal. It is contended that the Conmissioner's electien derives from his agreement to come to court today to argue the leavo anplication. He has agreed to come toa court but that does not constitute an election to apply to a single judge for leave to appeal. Indeed, the application for leave to anneal specifically ¥ seeks in paragraph 5 the following order:- "The applicant further applies, pursuant to order 52 rule 37 of the Rules of the Federal Court, that the application for leave to appeal be heard concurrently with or immediately before the hearing of the anneal." 3. Whether that is consistent with the requirements of 2.52 va xr.41 in relation to such orders is neither here nor there, It i nlainly inconsistent with the characterisation of the anplicaticn for leave to anpeal as one made Lo a single jJudog?. Nor do I see any basis upon whict I have a diseret te on, as suggested by the taxpayer, to deal with an application which the Commissioner seeks to have dealt with vy the Full Court. tT will therefore not oroceed to consider tne mecits of the anplication for leave to anneal. Ik is a matter for the Full Court. I decline to accede to the respondent's invitation lo deal with the application for leave, I certify that this and the proceeding two (2) pages are a true copy of the Peasons for Judgment of his Monour Mr Justice French. a Associate: Cygereth Mheiliro.,