Clyne v Deputy Commissioner of Taxation

High Court of Australia GIBBS CJ Murphy Wilson, Brennan and DEANE JJ Clyne v Deputy Commissioner of Taxation

ORDER Order Appeal dismissed with costs. Gibbs CJ

The present appeal was brought to this court as of right. It is without merit of any kind and illustrates the desirability of appeals to this court generally being only by way of special leave. If special leave to appeal had been necessary in the present case it would not have been obtained. That would have meant that the court would have had the time, which this appeal has taken, available to deal with a case which warrants the consideration of the court.

The appeal is brought from a decision of the Full Court of the Federal Court which dismissed an appeal from a decision of Lockhart J who dismissed an application by the present appellant who sought, inter alia, an order setting aside a bankruptcy notice issued on 13 August 1982 at the request of the Deputy Commissioner of Taxation. The facts are fully stated in the judgments of the Federal Court. On 11 March 1982 the Deputy Commissioner obtained judgment against the appellant in the Supreme Court of New South Wales for $334,826.25 (12 ATR 738). An appeal to the Court of Appeal from that judgment was dismissed on 5 October 1982 (13 ATR 463). The judgment was in respect of income tax assessed in respect of the tax years 1977, 1978 and 1979. An appeal from the assessment in respect of the year 1977 had been dismissed by the Supreme Court on 1 March 1982 (12 ATR 723) and an appeal to the Federal Court from that decision was dismissed on 20 August 1982 (13 ATR 353). However, when Lockhart J gave his judgment on 11 October 1982 (13 ATR 466), the appellant's objection in respect of the years 1978 and 1979 was pending before the Board of Review. For completeness, it may be added that the objection was subsequently disallowed by the Board of Review and that an appeal from that decision has been dismissed by a judge of the Supreme Court (14 ATR 509). However an application for leave to appeal to the Federal Court from that decision is pending.