Commissioner of Taxation v Ma (1999) FCA 1509

FEDERAL COURT OF AUSTRALIA

Commissioner of Taxation v Ma [1999] FCA 1509 PRACTICE & PROCEDURE – service of originating process – motion for declaration that originating process not duly served or order that service of originating process be set aside –– where notice of motion not filed within 14 days of filing notice of conditional appearance – whether to dispense with compliance with Federal Court Rules Federal Court Rules, O 9 r 6, O 9 r 7

COMMISSIONER OF TAXATION v PING MA & ORS N690 OF 1999 EMMETT J 20 OCTOBER 1999 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 690 OF 1999

BETWEEN: COMMISSIONER OF TAXATION

Applicant

AND: PING MA

First Respondent

GUO QIANG PAN

Second Respondent

MU ZHANG

Third Respondent

CITIBANK LIMITED

Fourth Respondent

JUDGE: EMMETT J

DATE OF ORDER: 20 OCTOBER 1999

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The conditional appearance filed on 28 July 1999 does not have effect for any purpose as an unconditional appearance.

2. The requirements of Order 9 rule 7(2) be dispensed with in so far as that rule would preclude any application for orders under Order 9 rule 7. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 690 OF 1999

BETWEEN: COMMISSIONER OF TAXATION

Applicant

AND: PING MA

First Respondent

GUO QIANG PAN

Second Respondent

MU ZHANG

Third Respondent

CITIBANK LIMITED

Fourth Respondent

JUDGE: EMMETT J

DATE: 22 OCTOBER 1999

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 On 21 July 1999, I made orders ex parte on the application of the applicant, the Commissioner of Taxation ("the Commissioner"). The orders included orders restraining the first respondent from selling, disposing of, transferring, encumbering or otherwise dealing with moneys in an account with the fourth respondent. 2 I also made an order abridging the time for service to 23 July 1999 of the amended application that I gave leave to file. Order 7 was in the following terms: "Direct that service be effected on the first and third respondents by facsimile communication to Mr Niall Carney, Barrister, at Room 1341, Beijing International Hotel, Beijing." That order was made in the light of evidence that was then before me that Mr Carney had intimated that he had instructions to act for the first respondent. The amended application was made returnable before me at 9.30am on 28 July 1999. 3 On that day Mr Svehla, of counsel, appeared for the first respondent and proffered a notice of conditional appearance on behalf of the first respondent, which was filed in court. The notice of conditional appearance was signed by Mr Alexander John Wakefield of Holman Webb, solicitors. 4 In the course of the directions hearing on 28 July 1999, Mr Svehla indicated that he understood that I had, in effect, made an order in the nature of an order for substituted service by the Order 7 to which I have just referred. I have heard evidence today from Mr Wakefield that, when he saw the order, he understood that I had made an order for substituted service, although he had some doubts as to the appropriateness of such an order if one had been made. It was on that basis that he prepared the notice of conditional appearance and instructed Mr Svehla to appear. His understanding was that Mr Svehla would contest whatever service had occurred at that stage. 5 In the course of directions on 28 July 1999, I indicated that Order 7 was not intended to have that effect and should be treated as a direction concerning service of notice of the injunctions and other orders that I made on that day. Mr Wakefield was entitled to assume, in the circumstances, that there was no service which could be the subject of an application under the Rules. 6 Order 9 Rule 6 provides as follows: