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. The first point taken by the appellant is that Lockhart J should have set aside the bankruptcy notice because the judgment on which it was founded was based on a tax claim which was totally disputed. It was said that the dispute was substantial and that if the appellant succeeded in relation to it there would be nothing due by the appellant for tax, since amounts already recovered by the Commissioner would exceed the amount due in respect of the 1977 assessment which, of course, is now beyond dispute. The rule that a court of bankruptcy may, in certain cases, go behind a judgment to determine whether it is founded on a real debt can have no application in the present case. If the court were to go behind the judgment it would be faced with the notice of assessment which, under s 177(1) of the Income Tax Assessment Act, is conclusive and with the provisions of s 201 of that Act which permit the recovery of tax as if no appeal were pending. Of course, the court which gives judgment has a discretion to stay execution in appropriate circumstances but a stay of execution was refused in the present case. The argument that if an assessment to tax is disputed no bankruptcy notice can be founded upon the judgment in respect of the tax until the dispute is resolved by the ultimate court of appeal cannot possibly be accepted. Lockhart J, who accepted that it lay within his discretion to set aside the bankruptcy notice if he were satisfied that there was a dispute genuinely based on substantial grounds, carefully considered the circumstances of the case and held that he would not set aside the bankruptcy notice. No error has been shown in the exercise of his discretion. On the contrary, I agree that, in the circumstances, it was correctly exercised. It is true that Lockhart J, who heard submissions as to the nature of the appellant's objections to his assessment to tax, did not form a judgment as to prospects of the success of the appellant in the proceedings before the Board of Review lest he should embarrass that tribunal. There was nothing erroneous in that approach. It was said that Lockhart J was wrong in regarding both the Deputy Commissioner and the appellant as being in rather special positions. However, the learned judge was quite entitled to have regard to the provisions of the Income Tax Assessment Acts which do place the Commissioner in a position of special advantage and to have further regard to the fact that the appellant has advocated that the Deputy Commissioner should be delayed in his recovery of tax generally. The second ground of appeal was that the judgment of the Supreme Court, on which the bankruptcy notice was founded, was not a final judgment. A final judgment within the meaning of the provisions of the Bankruptcy Act has been held to mean a judgment obtained in an action by which the question whether there was a pre-existing right of the plaintiff against the defendant is ascertained or established: Opie v Opie (1951) 84 CLR 362 at 372. In other words it is a judgment which finally disposes of the rights of the parties: see Licul v Corney (1976) 50 ALJR 439 at 444. The fact that a judgment is subject to appeal or that it may later be set aside or become inoperative does not mean that it is not final: Re Hanby; Ex parte Flemington Central Spares Pty Ltd (1967) 10 FLR 378. The judgment in the present case was a final judgment, notwithstanding that the court which gave it could not go behind the conclusive assessment of the Deputy Commissioner. The case is distinguishable from that considered in Opie v Opie, supra, where the judgment was not obtained in an action and the order for maintenance, which was enforced by the judgment, was capable of variation from time to time. For these reasons I consider that the points taken by the appellant fail and that the appeal should be dismissed. Murphy J I agree. Wilson J I agree. Brennan J I agree. Deane J I also agree.