Deputy Federal Commissioner of Taxation v. Mackey.

Judges: Moffitt P
Hutley JA

Glass JA

Court:
Supreme Court of New South Wales - Court of Appeal

Judgment date: Judgment handed down 16 November 1982.

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Glass J.A.

I agree with what has been said by both of my brethren and would shortly explain my reasons for coming to the same conclusion.

Mr. Bennett submitted that his Honour's discretionary judgment was invulnerable to overthrow since he had given proper regard to all factors and an appellate Court inclined to assess the weight of those factors differently had no power to disturb it (
Gronow v. Gronow (1979) FLC ¶ 90-716 ; (1979) 144 C.L.R. 513 ). In particular he argued that the competing prejudice suffered by the Commissioner in having his proceedings stayed and the taxpayer in being denied a stay had been properly evaluated by his Honour and that the policy embodied in sec. 201 could do no more than move the needle up to twenty points in the Commissioner's favour on a scale of one hundred. It is in my view a misconception, as my brother Hutley has said, to treat the Commissioner and the taxpayer in proceedings for a stay as litigants who start on equal terms, as do a plaintiff and a defendant in Equity proceedings, where the balance of convenience is being examined to see whether an interim injunction should or should not be granted.

I consider that the effect of the legislative direction in sec. 201 when modified by the Court's recognised power to stay proceedings in the exercise of its discretion have a combined effect of a different kind. If the metaphor is to be retained, the needle stands in the Commissioner's favour close to one hundred and it requires a weighty case to be presented by the taxpayer in order to depress it below the halfway mark. It is sufficient to say that none of the matters adverted to here at any stage had this effect in my opinion.

Moffitt P.: The order of the Court is as I have indicated.

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ATC 4576

Mr. Simos: The parties have agreed that the amount in respect of which there would be no stay having regard to your Honours' judgment is $38,063.12, which includes interest to date under the Income Tax Act.

Moffitt P.: Then order 2 will now read ``The appeal to be allowed, the order staying the proceedings be set aside so far as it relates to the sum of $38,063.12 representing tax assessed and interest to date''.

(Mr. Bennett sought a certificate under the Suitors' Fund Act. )

The Court grants a certificate under the Suitors' Fund Act.