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. ****** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.