Butler v Commissioner of Taxation [2009] FCA 1105

FEDERAL COURT OF AUSTRALIA

Butler v Commissioner of Taxation [2009] FCA 1105

DERRICK EDWARD BUTLER v COMMISSIONER OF TAXATION

SAD 74 of 2009

BESANKO J

2 OCTOBER 2009

ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION SAD 74 of 2009

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: DERRICK EDWARD BUTLER

Applicant

AND: COMMISSIONER OF TAXATION

Respondent

JUDGE: BESANKO J

DATE OF ORDER: 2 OCTOBER 2009

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT:

1. The applicant's notice of appeal dated 17 July 2009 be struck out.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION SAD 74 of 2009

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: DERRICK EDWARD BUTLER

Applicant

AND: COMMISSIONER OF TAXATION

Respondent

JUDGE: BESANKO J

DATE: 2 OCTOBER 2009

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 A party to a proceeding before the Administrative Appeals Tribunal ("Tribunal") may appeal to this Court, on a question of law, from the decision of the Tribunal in that proceeding: Administrative Appeals Tribunal Act 1975 (Cth) s 44(1). The party's notice of appeal must state the question or questions of law raised on the appeal, the order sought and briefly, but specifically, the grounds relied upon in support of the order sought: Federal Court Rules O 53 r 3(2). A notice of appeal which does not state a question or questions of law may be struck out. The Court may, depending on the circumstances, grant leave to amend the notice of appeal. In this case, the applicant's notice of appeal does not state a question of law. In this case, leave to amend should not be granted. 2 The applicant appeals from a decision of the Tribunal made on 27 April 2009. His notice of appeal provides relevantly: "THE QUESTIONS OF LAW raised on the appeal are: (specify each question of law) 1. Income generated overseas is GST exempt 2. All loans provided for offshore countries be not treated as income 3. A claim by AAT that I was reckless is not correct 4. That consideration is given to attachment 1 when making your order/s. ORDERS SOUGHT: (State the orders or relief sought by the applicant) 3. That Attachment 1 is accepted as supporting the questions of law. 4. That the income generated from Pure New Zealand Ltd ($NZD 86,000 Aust equivalent $AUD 83,495) be treated as GST exempt and therefore reduce the GST liability by $8,350 4. That all other deposits for / from overseas be treated as loans not income and therefore GST is considered to be exempt. All funds were provided as a means to pay credit cards to provide for credit for non GST expenditure. GROUNDS (Specify grounds relied upon in support of the orders sought) 5 That the attached document provides legitimate arguments that challenger [sic] the decision made by the AAT." 3 It is common ground that the second alleged question of law should read, "[a]ll loans provided from offshore countries be not treated as income". 4 On 29 July 2009, the respondent issued a notice of motion seeking an order that the applicant's notice of appeal be struck out. The respondent contends that the notice of appeal does not state a question of law. The requirement that a notice of appeal state a question or questions of law raised on the appeal has been discussed in a number of authorities. I refer to the summary set out in Comcare v Etheridge (2006) 149 FCR 522 at 526-527 [11]-[17]. 5 This Court has power to strike out a notice of appeal which does not state a question or questions of law: Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515. In Bittmann v Australian Securities and Investments Commission (No 2) [2006] FCA 1786 Kenny J said (at [12]): "I also accept that, as the respondent submitted, the Court may make the orders that it seeks by way of its motion. In McGregor v Chief Executive Officer of Centrelink [2000] FCA 701 at [17], Spender J expressed the view that there was power under O 20 r 2 of the Rules to dismiss an appeal purportedly under s 44 of the AAT Act on the basis that it stated no question of law and thus disclosed no reasonable cause of action: see also Zoia v Administrative Appeals Tribunal [2003] FCA 303 at [6] per Carr J and Barghouthi v ING Custodians Pty Ltd [2003] FCA 1272 at [15] per Allsop J. In Lambroglou, Ryan J expressed the view (at 519) that O 53 r 15(1) of the Rules conferred a power sufficiently broad to allow the Court to strike out the whole or part of an appeal under s 44 of the AAT Act. Whatever the correct analysis of the Rules, s 23 of the Federal Court Act confers broad power on the Court to make orders of such kinds as it thinks appropriate. I accept that, pursuant to s 23, the Court has power to strike out a notice of appeal in reliance on s 44 where the notice does not state a question of law: compare also Lambroglou at 519-520." 6 The power will be exercised only where it is clear that no question of law is stated in the notice of appeal. 7 Before examining the alleged questions of law raised by the applicant in his notice of appeal, it is necessary to summarise the decision of the Tribunal.