od LIMITED CIRCULATION | CATCHWORDS PRACTICE AND PROCEDURE - Notice of motion to dismiss proceedings want of prosecution - motion adjourned. for JESSI PTY. LIMITED AS TRUSTEE FOR THE MILL TRUST (RECEIVERS AND S APPOINTED) v. COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA G2704 of 1987 G2705 of 1987 G2706 of 1987 LOCKHART J. 15 DECEMBER 1987 SYDNEY \- arr gy twa FEDERAL cc_ Aligw leu - iy MW oF by IN THE FEDERAL COURT OF AUSTRAL No. G 2704 of 1987 ) ) NEW SOUTH WALES DISTRICT REGISTRY } No. G 2705 of 1987 ) No. G 2706 of 1987 GENERAL DIVISION ) BETWEEN: JESSIDA PTY. LIMITED as Trustee for the MILL TRUST (Receivers and Managers appointed) Applicant AND: COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA Respondent JUDGE MAKING ORDER: LOCKHART J. DATE OF ORDER: 15 DECEMBER 1987 WHERE ORDER MADE: SYDNEY MI OF. 0 THE COURT ORDERS THAT: 1. The applicant file and serve ali affidavits upon which it seeks to rely in support of its case in matters G2704, G2705 and G2706, all of 1987, on or before 24 February 1988; 2. Matters G2704, G2705 and G2706, all of 1987, be adjourned to 14 March 1988; 3. Leave be granted to the respondent to file and serve notices of motion to dismiss for want of prosecution matters G2704, G2705 and G2706 of 1987; ow The notices of motion, filed and served by the respondent, pursuant to order 3 made by this Court, be returnable on 14 March 1988; Leave be granted to the respondent to file and serve notices of motion that it may see fit to file in for matters G2704, G2705 and G2706, all of 1987; The notices of motion filed and served by the respondent pursuant to order 5 made by this Court, to be returnable on 14 March 1988; Leave be granted to the appellant to file in Court on 15 December 1987 notice of address for service pursuant to Order 52A, rule 11 of the Federal Court Rules; Leave be granted to the applicant to file in court on 15 December 1987 a verified list of documents; The applicant pay the respondent's costs on the notice of motion up to and including 15 December 1987; and The notice of motion is adjourned to 14 March 1988. SETTLEMENT AND ENTRY OF ORDERS IS DEALT WITH IN ORDER 36 OF THE FEDERAL COURT RULES. No. NG 2704 of 1987 No. NG 2705 of 1987 NEW _S 3 DIT REGISTRY No. NG 2706 of 1987 GENERAL DIVISION BETWEEN: JESSIDA PTY. LIMITED as Trustee for the MILL TRUST (Receivers and Managers appointed) Applicant AND: ie) OF ON _O COMMO: OF _AU I Respondent 15 December 1987 This is a motion for dismissal of matters NG 2704 to and including NG 2706 of 1987, for want of prosecution. The moving party is the respondent, the Commissioner of Taxation ("the Commissioner") and the applicant is the taxpayer, Jessida Pty. Ltd. as trustee for the Mill Trust ("Jessida"), Receivers and Managers appointed. The case has a long history. The objection was transmitted to the Supreme Court of New South Wales in July 1986. It appears that the appeal, which came across to this Court by operation of the Jurisdiction of Courts (Miscellaneous Amendments) Act 1987, on 1 September 1987, was the subject of directions on more than one occasion before a Master of the Supreme Court. An order for discovery was made by Master Sharp on 19 August 1987. I have read the order of Master Sharp and I have read the reasons for his judgment which grounded that order. The matter first came into the Tax Directions list in this Court on 9 October 1987 and was adjourned, by consent, to 2 November 1987. On 2 November it was again adjourned until 17 November 1987, also by consent. On 17 November 1987 there was a contest between the parties as to the appropriate orders to be made and on that day the Court directed that the applicant file and serve a notice of address for service pursuant to Order 52A of this Court's rules on or before 20 November 1987; that the applicant file and serve a further verified list of documents on or before 4 December 1987; and certain other consequential orders. Leave was granted to the respondent on 17 November 1987 to file a notice of motion to dismiss the matters for want of prosecution, returnable for 15 December 1987. The applicant did not file a notice of address for service and until today had not filed it, nor had a further verified list of documents been filed by the applicant until today. It was in these circumstances that the respondent Commissioner took out the motion for dismissal for want of prosecution. It was supported by an affidavit of Julie-Ann Vens, of 8 December 1987, and three affidavits of service proving service of the necessary process upon the applicant at three different addresses, the need for that being felt, understandably, because of the absence of an address for service, a document intended to cure problems and waste of funds of that kind. On all directions hearings before this Court both parties have been represented, in the case of the applicant, on each occasion 3. by counsel. When the motion came on for hearing earlier today it was stood down at the request of counsel for the applicant and it resumed a short time ago. I was then informed by counsel for the applicant that the notice of address for service was ready for filing, as was the verified list of documents, and they have been handed to me. I was also referred by counsel for the applicant to judgments of the Supreme Court of New South Wales and other documents. There is a large amount of tax involved. The Commissioner has obtained judgment against the applicant in the Supreme Court of New South Wales in respect of the tax assessed. Mareva injunctions and other orders and injunctions have been made by the Supreme Court of New South Wales which, amongst other things, place in the hands of the receivers the assets and property of the taxpayer for various purposes. Counsel for the applicant stated that the terms of those orders and injunctions prevent the funds of the taxpayer being used to fund these proceedings and that the work done to date in the matter by the solicitors for the applicant has been done without reward. No application has yet been made to the Supreme Court to vary the terms of the injunction so as to release funds for the purpose of conducting these proceedings, although I am informed by counsel for the applicant that it is proposed that such an application be made. Although the Commissioner has plainly made out a case for an order that the proceeding be dismissed for want of prosecution, in the circumstances it would be unjust to make that order today. I do not propose to dismiss the notice of motion, but to adjourn it to 14 March 1988, to which date the main proceeding will also he adjourned. I direct the applicant to file and serve all affidavits upon which it proposes to rely in support of its case in matters G2704/87, G2705/87 and G2706/87 on or before 24 February 1988 and the matters are adjourned for further directions to 14 March 1988. I give leave to the respondent to file and serve returnable for that day any matters of motion for dismissal for want of prosecution or otherwise that it may see fit to take out. I order the applicant to pay the costs of the respondent Commissioner up to and including today on the notice of motion. I give leave to the applicant to file in Court on 15 December 1987 the notice of address for service and the verified list of documents. If these directions have not been complied with then the applicant has due warning of the fact that if the Commissioner then seeks an order of the kind which he sought on 15 December 1987, it would require the strongest evidence to be placed before the Court to prevent an order for dismissal being made. I certify that this and the preceding three (3) pages are a true copy of the reasons for judgment herein of the Honourable Mr. Justice Lockhart. Date: 15 December 1987 emcentemmetneneen we = = I4 IN THE FEDERAL COURT OF AUSTRALIA ) GENERAL DIVISION BETWEEN : SOUTH AUSTRALIAN DISTRICT REGISTRY ) G56 of 1987 ON APPEAL FROM A_ SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA ROGER HAYDON and OXFORD ESTATES PTY. LTD. Appellants GREGORY JOHN JACKSON, BARBARA JACKSON, PETER JOHN JACKSON, TRACEY ELLEN JACKSON, PHILIP GREGORY JACKSON AND JOSEPHINE JACKSON First Respondents MARTIN ANTON MISCHKULNIG Second Respondent MYOORA NOMINEES PTY. LTD. Third Respondent CORRIGENDA Amendment to the Reasons of Pincus J. in Full Court judgment delivered 23 December 1987: Page 6, para.3, line 5, replace "Counsel for the Jacksons" with "Counsel for the appellants". Angela Irwin Associate to Mr. Justice Pincus 22 February 1988