Harpas v Commissioner of Taxation [2002] NSWCA 198

New South Wales Court of Appeal

CITATION : Harpas v Commissioner of Taxation [2002] NSWCA 198 FILE NUMBER(S) : CA 41054/01 HEARING DATE(S) : 24 June 2002 JUDGMENT DATE : 24 June 2002

Demetri Harpas PARTIES : v Commissioner of Taxation JUDGMENT OF : Handley JA at 1; Stein JA at 1; Foster AJA at 1

LOWER COURT JURISDICTION : Supreme Court LOWER COURT SC 13349/01 FILE NUMBER(S) : LOWER COURT Dunford J JUDICIAL OFFICER :

COUNSEL : Appellant: T Duggan Respondent: D McGovern SOLICITORS : Appellant: Cunich Business Lawyers Respondent: Australian Government Solicitor

DECISION : Appeal dismissed with costs

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

41054/01 HANDLEY JA STEIN JA FOSTER AJA

24 June 2002 DEMETRI HARPAS v COMMISSIONER OF TAXATION

Judgment 1 Handley JA: The Court will dismiss this appeal for the reasons given by the trial Judge. However we also think that the procedure adopted was totally inappropriate in the first place. 2 Although the point was not taken by the Commissioner before Dunford J, the commencement of proceedings for a declaration in the Supreme Court when an action raising the same issue is pending in the District Court is totally inappropriate. If objection had been taken the Supreme Court should have dismissed these proceedings without embarking on the merits. If anyone else is tempted in the future to take proceedings in the Supreme Court for a declaration when an action raising the same issue is pending in the District Court the Court itself or the Commissioner should object to that procedure. 3 Declaratory relief was never intended to divide up or fracture legal proceedings pending in another court from which there is a full appeal on fact and law. 4 The order of the Court is appeal dismissed with costs. ******