FEDERAL COURT OF AUSTRALIA Mulherin v Commissioner of Taxation [2012] FCA 1488 Citation: Mulherin v Commissioner of Taxation [2012] FCA 1488 Parties: HENRY MULHERIN v COMMISSIONER OF TAXATION File number: NSD 1384 of 2012 Judge: LOGAN J Date of judgment: 28 November 2012 Catchwords: ADMINISTRATIVE LAW – objection to competency of appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) – concession by respondent that proposed amended notice of appeal raises at least one question of law – not a matter for objection to competency in light of concession – leave to file an amended notice of appeal Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44 Date of hearing: 28 November 2012 Place: Brisbane Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 8 Counsel for the Applicant: Mr F Harrison QC Solicitor for the Applicant: Irish Bentley Lawyers Counsel for the Respondent: Ms KA Mellifont SC Solicitor for the Respondent: Australian Government Solicitor IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1384 of 2012 BETWEEN: HENRY MULHERIN Applicant AND: COMMISSIONER OF TAXATION Respondent JUDGE: LOGAN J DATE OF ORDER: 28 NOVEMBER 2012 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. Leave to the applicant to file an amended Notice of Appeal in terms of exhibit 1 in today's scheduling conference is granted. 2. The application for the striking out of the Notice of Appeal be dismissed. 3. The applicant is to pay the respondent's costs thrown away by the grant of leave to amend, including in that regard, the costs of and incidental to the application for the striking out of the notice of appeal, not earlier provided for by the order of 9 November 2012. 4. Save as otherwise provided by this order, the costs of today's adjourned scheduled conference are reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1384 of 2012 BETWEEN: HENRY MULHERIN Applicant AND: COMMISSIONER OF TAXATION Respondent JUDGE: LOGAN J DATE: 28 NOVEMBER 2012 PLACE: BRISBANE REASONS FOR JUDGMENT 1 When this matter originally came on for a scheduling conference I was informed, on behalf of the applicant, that it was proposed to seek the Court's leave to amend the then existing notice of appeal. That notice of appeal had drawn an application from the Commissioner for its dismissal. 2 The proposed amended notice of appeal was foreshadowed, as required by the directions given on 9 November 2012, by way of an annexure to the applicant's solicitor's affidavit, which was served prior to today. It has been further refined to take account of some minor typographic errors in a form which has become exhibit 1 on today's scheduling conference. 3 A grant of leave to amend the notice of appeal will negate whatever efficacy there may be in the Commissioner's original application for dismissal. I can well see, having regard to the terms of the notice of appeal as originally cast, why that application was made. Those deficiencies are no longer present in the proposed amended notice of appeal. The proposed amended notice of appeal is cast in an innovative, but not unattractive, pleading style. By that, I mean that, in the questions of law portion, it contains a number of recitals which form preconditions to the statement of a question of law. 4 The grant to leave to amend is opposed by the Commissioner. The proposed amended notice of appeal does not strike me as so obviously deficient in statements of questions of law that a grant of leave should be refused. It is conceded on behalf of the Commissioner that there are at least some questions of law in the proposed amended notice of appeal. That being so, and subject, of course, to the grant of leave, the appeal would be competent. It would just be that some alleged questions of law may, on closer analysis, prove not to be so. 5 The question as to whether there is at least one question of law is important, in the sense that it goes to jurisdiction in a matter where it is sought to appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). It being the case that, as amended, jurisdiction would be invoked, it seems to me that the interests of justice are best served by a grant of leave. 6 There is a further question of practice in this case as to whether or not it will be heard in the exercise of original jurisdiction either by a single judge or by a Full Court. That is a matter for the Chief Justice and the President of the tribunal to confer upon and for the Chief Justice to make a direction. However that subject is determined, it seems to me it is better that the Court, on the hearing of the appeal, look to but one document as the repository of the basis upon which challenge is made to the tribunal's decision, rather than have to determine additionally whether or not to grant leave to amend the notice of appeal. For these reasons, then, there will be a grant of leave to amend the notice of appeal in terms of exhibit 1. 7 There is something of an indulgence in that grant of leave, in that, if not for the case that the notice had been originally wanting but one scheduling conference would have been necessary. I have already, on 9 November, made some recognition of the extra costs burden inflicted upon the Commissioner by the course adopted by the applicant. One way of further dealing with that costs burden would be to require payment of costs thrown away by the amendment. That seems to me to be preferable to other courses, even courses as adventurous, as the applicant submitted, as having the Commissioner pay costs of the amendment, on the basis that it could have been done in some less confrontational way, perhaps as a sequel to the first scheduling conference. 8 There will be orders accordingly. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 21 December 2012