Glennan, Ex parte - Re Carmody & Ors S457/2002 [2003] HCATrans 763 (28 May 2003)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S195 of 2002

B e t w e e n -

MICHAEL JOHN GLENNAN

Appellant

and

COMMISSIONER OF TAXATION

Respondent

Office of the Registry

Sydney No S457 of 2002

In the matter of -

An application for Writs of Prohibition, Mandamus and Certiorari against MICHAEL CARMODY in his capacity as Commissioner of Taxation of the Commonwealth of Australia

First Respondent

THE JUDGES OF THE FEDERAL COURT OF AUSTRALIA

Second Respondents

Ex parte -

MICHAEL JOHN GLENNAN

Applicant/Prosecutor

GUMMOW J

HAYNE J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 28 MAY 2003 AT 9.19 AM

(Continued from 7/3/03)

Copyright in the High Court of Australia

__________________

MR J.D. HARRIS, SC: May it please the Court, I appear for Mr Glennan, the applicant, in all of the notices of motion before the Court today. (instructed by Higgins Solicitors)

MR A.J. O'BRIEN: May it please the Court, I appear for the respondent. (instructed by Australian Government Solicitor)

GUMMOW J: In respect of the second matter, S457 of 2002, the Court holds a certificate from the Senior Registrar indicating she has been informed by the solicitor for the second respondents, who are the judges of the Federal Court of Australia, that they will abide by any order of the Court, save as to costs. Now, you have two notices of motion in each matter, I think.

MR HARRIS: Yes, that is so, your Honour.

GUMMOW J: The Court has considered the motions and the materials in support. Justice Hayne is indisposed today. The two of us propose to deal this morning with the oral hearing and then his Honour will join us in the deliberations leading to the decision.....what is on the transcript.

MR HARRIS: May it please the Court.

GUMMOW J: Yes, Mr Harris.

MR HARRIS: As the Court is aware, this matter was heard to a conclusion and judgment was reserved on 7 March 2003. Since that time the applicant has become aware of arguments which he would wish to put before the Court, originally it was thought by written submission, and, of course, it goes without saying that leave is necessary to place further argument and further submission before the Court, the hearing having concluded and it is for that reason that the notice of motion are filed.

GUMMOW J: Yes. Just pardon us a moment, Mr Harris. We would be assisted, Mr Harris, if you would go straight to the substance of the arguments.

MR HARRIS: Yes, may it please the Court. It is perhaps most convenient then if I go to the second of the notices of motion filed, that dated 22 May 2003. In that the following argument is sought to be addressed. In the hearing on 7 May written submissions had been filed and at pages 10 and 12 of those written submissions an argument was put to the effect that the constitutional right of access to the original jurisdiction of this Court cannot be diminished by other rights of review, so it was argued that the taxpayer possesses a constitutional right to challenge an assessment in the original jurisdiction of this Court independently of any other statutory review process and appellate procedure.

Reference was made, I think, to Mooney's Case and the Western Australia Football League Case. I will not take your Honour back to those but they were cited in support of the proposition and, in particular, I think reference was made to the observations of his Honour the Chief Justice Sir Garfield Barwick in the Western Australia Football League Case.

It was submitted that contrary to the conclusion arrived at by his Honour Justice Kirby in Re Carmody; Ex parte Glennan, that the fact of the existence of the alternative avenue of an application for special leave to appeal was not relevant to the question of whether relief by way of constitutional writ should otherwise be granted and some argument was, I think, advanced on that point. His Honour Justice Kirby in that case, Ex parte Glennan, dealt with the situation where there was a special leave application extant and his Honour said that as a matter of discretion that application, having been filed and having been regularly commenced and being before the Court and pending, that it was premature to embark upon the additional route of constitutional writ.

We did not address the Court about the decision of his Honour Justice Kirby In re Heerey and Others; Ex parte Heinrich [2001] HCA 74; 185 ALR 106. In that case his Honour took the matter a little further. His Honour relied upon his earlier decision In re Carmody; Ex parte Glennan. His Honour held that where an application for a constitutional writ is made without - - -

GUMMOW J: In Heinrich there was no outstanding special leave application.

MR HARRIS: That is right.

GUMMOW J: That is the distinction.

MR HARRIS: That is the distinction. Frankly, the short point that the applicant is concerned about is this. If the Court were to adopt the approach taken by his Honour Justice Kirby in Heinrich, that could provide an avenue for very quickly and shortly disposing of Mr Glennan's application before this Court for constitutional writ relief.

Accordingly, having not drawn the Court's attention to the decision and having since become aware of it and by this application drawing the Court's attention to it, we would wish to be heard to argue strenuously that his Honour was wrong in the approach which he adopted, that Carmody; Ex parte Glennan is not authority for the proposition he states and that, indeed, it would be contrary to established principles and an interference with the taxpayer's constitutionally guaranteed right to approach this Court in the exercise of its original jurisdiction.

In a sense these matters have been the subject of significant debate in this Court in recent times. In an analogous but different context the Court was concerned with what could have been interpreted as interferences with that right in the recent migration cases that were concerned with privative clauses, and of course the Court, even in the face of what might be wrongly, as the Court held, but which might be on a literal reading an attempt to in some way limit or control the original jurisdiction of this Court, the Court as one would expect jealously and properly guarded that jurisdiction and found a way, by construction principles and by having regard to the jurisprudence that has grown up over the years in relation to privative clauses, to say even in the face of something as express as these privative clauses nonetheless that constitutional right shall not be interfered with. The sort of argument that we wish to advance - - -

GUMMOW J: I think you should advance it now and that is what we have been inviting you to do.

MR HARRIS: Yes, I am sorry, your Honour. The sort of argument that we want to advance is that - - -

GUMMOW J: Because the primary question on the motions is what would be the prospects of the arguments getting up if they were put. So we want to get to the substance of it.

MR HARRIS: The substance of it is, your Honour, that the effect of the judgment of his Honour is to achieve by the operation of the discretion of the Court an interference with the jurisdiction under section 75(v).

GUMMOW J: You have already put that on the main appeal on this issue.

MR HARRIS: I suppose in a sense we have in discussing Carmody v Glennan.

GUMMOW J: That is right.

MR HARRIS: But it seemed to the applicant, with respect, that Heerey v Heinrich rather took the matter substantially further and has the effect of saying that the original jurisdiction of the Court ordinarily will not be exercised unless an applicant has already chosen to exercise and exhaust all of his rights through the appellate jurisdiction of the Court.

We would submit that that is a gloss on what the provisions of the Constitution provide in Chapter III, and in particular in relation to the original jurisdiction of the Court, and that it is impermissible to subject the original jurisdiction of the Court to a precondition to its exercise that the appellate processes are fully utilised and exhausted. We say that Mooney's Case, which I think is referred to in Mr Glennan's affidavit as a case in 1901 - it is 1906 of course - - -

GUMMOW J: Yes, we referred to it before.

MR HARRIS: Yes, 3 CLR. Mooney's Case is directly contrary to it; that was a decision of course of the Full Court. The observations of his Honour the Chief Justice in the Western Australia Football Club are contrary to it and that what his Honour Justice Kirby really achieves - that is the wrong word, but effects by his judgment - is the creation of a precondition to the exercise of the original jurisdiction of the Court and that as the Parliament cannot achieve such a thing, neither, with respect, can or should the Court.

GUMMOW J: Now, that is the substance of the argument on the motions in each matter of 22 May.

MR HARRIS: Quite, your Honour, yes.

GUMMOW J: Now, there were two earlier motions, one in each matter, they being dated 5 May.

MR HARRIS: Yes. Paragraph 5 of the affidavit in support, 5.1, is the simple beginning of these applications. The applicant became aware of a small number of authorities and at least one academic article which I think is in the British Taxation Review which he wished to place before the Court, and the advice that he received was that leave should be obtained to place those materials before the Court. That is the first matter. Leave is sought to provide the Court with a limited number of authorities and to address a very short submission to indicate how those authorities are relevant and to what point they are said to be relevant. Paragraph 5.2 relates to the Taxation Administration Act Part IVC.

Your Honour might recall that the Chief Justice, in his decision from which Mr Glennan was appealing, relied upon the finding of the Full Court of the Federal Court. Various arguments were addressed to the Court to the effect that that - - -

GUMMOW J: It comes down to section 14ZZQ, does it not, in your submission?

MR HARRIS: Yes. The argument is I think that the scheme established by Part IVC and ZZQ in particular establishes a regime whereby a taxpayer may appeal to the Federal Court, but that there is not intended by the legislative scheme that the Commissioner has a right of appeal. It involves a consideration of - - -

GUMMOW J: No right of appeal to the Full Court?

MR HARRIS: Yes. The submission takes a little while to develop, but it is essentially that section 24 of the Federal Court of Australia Act provides no jurisdictional basis in a taxation matter for an appeal. One needs to go to Part IVC of the Taxation Administration Act to provide the - it is submitted that Part IVC provides a complete code, if you like, for the process of appeal and that one needs to see - - -

GUMMOW J: What of the situation as here where the taxpayer has chosen to go not directly to the Federal Court but to go through the AAT?

MR HARRIS: Yes. That process is provided for by Part IVC of the Taxation Administration Act in that it adopts the provisions of the Administrative Appeals Tribunal Act. It amends some parts of the Act but not any relevant part so far as we can see. So that to go from the Administrative Appeals Tribunal to a single judge of the Federal Court, as was done, is permissible under Part IVC of the Taxation Administration Act but the only basis for taking the additional step of going from the single judge to the Full Court, in our submission, is section 24 of the Federal Court of Australia Act and it is submitted that in the context of taxation matters and in the context of a proper construction of Part IVC, section 24 is not a jurisdictional provision. It is a modal provision which does not provide jurisdiction.

There is an additional way of - I think which the applicant would seek to advance that proposition, although I am conscious of the time - and that is that the appellate process which is envisaged - no, I think I am really just repeating myself to try and - - -

GUMMOW J: Yes, I think - - -

MR HARRIS: Your Honour, I am very conscious of the time. Without actually going to the detailed provisions of the Taxation Administration Act I am not certain I can advance it - - -

GUMMOW J: We went through them before. We are becoming very familiar with them.

MR HARRIS: Yes. Your Honour, finally, in paragraph 5.3 of the affidavit of Mr Glennan there is a reference that is described as the "General Rule in Bunbury v Fuller".

GUMMOW J: That is reported in [1853] EngR 768; 156 ER 47. The relevant passage is at page 60.

MR HARRIS: Yes.

GUMMOW J: That is a leading authority in the 19^th century on the doctrine of jurisdictional fact and jurisdictional error that says the subordinate tribunal certainly can find the jurisdictional facts but it cannot do it conclusively because it is subject to prerogative writ control by Kings Bench.

MR HARRIS: Yes. Indeed, I suppose, in a sense, there is no surprise about any of that.

GUMMOW J: No.

MR HARRIS: The argument is actually set out on the last page of annexure "B" to the notice of motion in 457. At paragraph 12.2 it is submitted that "whether or not the court was bound by Public Tax Ruling TD93/58" was a matter which was properly before the Federal Court in its appellate jurisdiction, that it was argued by way of supplementary submissions which were filed, with leave, I gather, after the conclusion of the hearing but that, it is submitted, the Federal Court failed to address that issue in its judgment. It is submitted in that regard the Full Court of the Federal Court was in error.

The consequence is then set out in paragraph 12.2.3, that is that the judgment of the Full Court then, by operation of the Constitution Act, section 5, becomes a nullity and should not then stand in the way of the relief that is sought and should not form the basis of his Honour the Chief Justice's judgment to summarily dismiss the applicant's claim.

GUMMOW J: Thank you. They are the three matters, I think, are they not?

MR HARRIS: I think they are, yes, your Honour.

GUMMOW J: We will see what Mr O'Brien says.

MR O'BRIEN: Thank you, your Honour. A case list was provided in regard to this matter about the lodgement of further submissions after the hearing has finished and there were three cases on that list. I do not know if your Honour wants - - -

GUMMOW J: We know about that.

MR O'BRIEN: I am sorry?

GUMMOW J: We do not need to be told about that.

MR O'BRIEN: The New Zealand case apparently was not available.

GUMMOW J: Our procedures are not controlled by what happens in New Zealand, Mr O'Brien. What is your argument on the three points of substance that Mr Harris puts? He accepts he needs leave, very wisely.

MR O'BRIEN: Right. Perhaps I might just as a preliminary matter indicate that it is not as if they were taken by surprise at the hearing and they had ample time prior to the hearing in order to present their case. The matter was actually set down initially on 10 December last year and was adjourned I understand in order to give them more time to prepare their submissions.

CALLINAN J: You really would do better to deal with the matters of substance as the presiding judge has suggested, Mr O'Brien.

MR O'BRIEN: Yes. If I could go to the substantial matters that your Honour raised. Firstly, in regard to the section 14ZZQ argument, that argument was comprehensively dealt with by Justice Kirby in Re Carmody; Ex parte Glennan. He deals with it comprehensively in paragraphs 16 to 27. Even though his Honour dealt with it, it was raised again in paragraph 14 of the amended notice of appeal which was before this Court, squarely raised at paragraph 14. My friend, in his written submissions did not specifically address that issue, but at paragraph 5.22 of his submissions he said:

Grounds not expressly addressed in this statement of the Appellant's argument are not to be taken to have been abandoned. The Appellant relies on the Amended Notice of Appeal -

which contained the assertion about 14ZZQ.

GUMMOW J: What is the answer to that 14ZZQ?

MR O'BRIEN: The answer is as set out. I suspect my friend did not bother canvassing it in his written submissions because Justice - - -

GUMMOW J: Just tell us, we have to sit somewhere else at 10.15, just tell us.

MR O'BRIEN: If you go the AAT route, 14ZZQ has no application.

GUMMOW J: Why is that?

MR O'BRIEN: Because 14ZZQ deals with the situation where you go directly to the Federal Court and impose time limits in regard to appealing from a single judge to the Full Federal Court. It says you have to appeal "within 60 days", but 14ZZQ is contained in Division 5, which deals exclusively with the Federal Court route.

GUMMOW J: It says, "Federal Court appeals against objection decisions".

MR O'BRIEN: That is right. It is dealt with comprehensively by Justice Kirby and it is, in my submission, clearly correct.

GUMMOW J: What paragraphs in Justice Kirby's judgment?

MR O'BRIEN: Paragraphs 16 to 27.

GUMMOW J: In Carmody?

MR O'BRIEN: In Carmody[2000] HCA 37; , 173 ALR 145.

GUMMOW J: Thank you.

MR O'BRIEN: The second matter raised by my friend is in regard to Re Heerey's Case. Your Honour, this issue was raised squarely by my friend in his written submissions concerning discretion and about the effect on discretion of having a statutory right of appeal; it was dealt with squarely by my friend in his submissions at 5.19. Re Heerey was decided on 8 October 2001, which is a couple of years before the matter was heard here earlier this year, and there is nothing remarkable, we submit, about that decision. It was merely a case of Justice Kirby applying the principles he had previously set down in Re Carmody; Ex parte Glennan.

GUMMOW J: What do you say about the reliance upon what was said by Sir Garfield Barwick in the Football Case with, I think, concurrence of several other members of the Court, that all these considerations are irrelevant? Is that still the doctrine of the Court?

MR O'BRIEN: As a practical matter, I think Justice Kirby refers to this in Re Heerey. If everyone could come directly to the High Court seeking these remedies, as a practical matter, the High Court would not be able to accommodate people coming directly to the High Court. So to whatever extent Justice Barwick said that it was not relevant, I suppose Justice Kirby has, to some extent, added a fetter to that proposition.

GUMMOW J: Anyway, you would invite us to prefer that view.

MR O'BRIEN: That is right. In any event, your Honour, the fact is that this was squarely before the Court on 7 March this argument. It is not as if it is anything new that is being brought up today. I think they were the issues my friend raised.

GUMMOW J: No, there was a third one.

MR O'BRIEN: Third one?

GUMMOW J: Based on Bunbury v Fuller.

MR O'BRIEN: There is just nothing remarkable about that decision, your Honour. The decision has been around. There is nothing new in that. It just states a basic proposition.

GUMMOW J: Yes, thank you. Yes, Mr Harris, anything in reply?

MR HARRIS: There is nothing in reply other than to say of course that the decision in the Western Australian Football Case, I think as I mentioned earlier perhaps, was a decision of the Full Court and would be preferred, in my respectful submission, to the recent decision of his Honour Justice Kirby.

GUMMOW J: Thank you. We are indebted to counsel and we will reserve our decisions on these motions with consideration with our decision on the main appeal. We will adjourn until 10.15 am in Court No 1.

AT 9.50 AM THE MATTERS WERE ADJOURNED.