FEDERAL COURT OF AUSTRALIA - GENERAL DIVISION

FRASER v DEPUTY COMMISSIONER OF TAXATION

Black CJ, Beaumont and Tamberlin JJ

14 August 1996 - Sydney

Black CJ I agree with Beaumont J that this appeal should be dismissed with costs.

I agree generally with his Honour ' s reasons but would add some observations about the appellant ' s submission that Davies J ought not to have granted leave pursuant to s 58(3)(b) of the Bankruptcy Act 1966 (Cth) to commence proceedings because, as was submitted, the Deputy Commissioner of Taxation did not have standing to continue his proceeding in the Family Court. Davies J considered that questions of standing were matters for the Family Court rather than for this court.

In DCT v Spanjich (1988) 93 FLR 98 ; 88 ATC 4985 a Full Court of the Family Court gave a broad construction to the expression " a person affected " in s 79A(1) of the Family Law Act 1975 (Cth) and one that, at least ordinarily, has the result that questions of standing should be determined at the same time as the other issues in a proceeding under s 79A . It would have been quite inconsistent with the approach taken by the Full Court of the Family Court to this important provision in the Family Law Act if Davies J had determined the question of standing on an application for leave to proceed under s 58(3)(b) of the Bankruptcy Act.

It would be wrong of this court to act inconsistently with the approach taken by the Family Court to such a question. It is of course well established that an intermediate appellate court should ordinarily follow the decision of another intermediate appellate court on the interpretation of Commonwealth legislation: see, for example: Zibillari v The Queen (1980) 50 FLR 274 at 285 per Brinsden J; R v Daher (1981) 57 FLR 467 at 471 per Street CJ; DCT v Access Finance Corp Pty Ltd (1987) 8 NSWLR 557 at 558; 18 ATR 871 per Samuels JA. Similarly, the importance of uniformity of decision in the interpretation of uniform national legislation was stressed recently by the High Court in Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 . In that case, Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ said (at CLR 492):

Although the considerations applying are somewhat different from those applying in the case of Commonwealth legislation, uniformity of decision in the interpretation of uniform national legislation such as the [Corporations Law] is a sufficiently important consideration to require that an intermediate appellate court - and all the more so a single judge - should not depart from an interpretation placed on such legislation by another Australian intermediate appellate court unless convinced that interpretation is plainly wrong.

See also Trans Pacific Investment Corp Pty Ltd v Rusty Rees Pty Ltd (1995) 57 FCR 210 at 214.

The specialist jurisdiction of the Family Court in family law matters provides an added reason why Davies J was correct in not acting inconsistently with the approach taken by the Family Court to the question of standing in a proceeding under s 79A of the Family Law Act.

In any case, as a matter of general principle, a court has a discretion whether it should, or should not, determine whether an applicant has a sufficient interest to bring proceedings, before it proceeds to determine the merits of a case: see Onus v Alcoa Aust Ltd (1981) 149 CLR 27 at 38 per Gibbs CJ and Robinson v Western Australian Museum (1977) 138 CLR 283 at 302-3 per Gibbs CJ.