Commissioner of Taxation v Hii [2014] FCAFC 147

FEDERAL COURT OF AUSTRALIA

Citation:	Commissioner of Taxation v Hii [2014] FCAFC 147

Appeal from:	Hii v The Commissioner of Taxation of the Commonwealth of Australia [2014] FCA 967

Parties:	COMMISSIONER OF TAXATION v YII ANN HII

File number:	QUD 447 of 2014

Judges:	EDMONDS, GREENWOOD AND PAGONE JJ

Date of judgment:	28 October 2014

Catchwords:	PRACTICE AND PROCEDURE – application for leave to appeal and appeal from order of primary judge that eight specified questions be determined separately from other questions in the proceedings – whether leave should be granted – whether primary judge erred in applying the correct principles – discretion miscarried – leave granted – appeal allowed

Legislation:	Federal Court Rules 2011 r 30.01

Cases cited:	Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130

Date of hearing:	28 October 2014

Place:	Brisbane

Division:	GENERAL DIVISION

Category:	Catchwords

Number of paragraphs:	3

Counsel for the Applicant:	Mr R Derrington QC with Mr Ballans

Solicitor for the Applicant:	Australian Government Solicitor

Counsel for the Respondent:	Mr MP Van Der Walt

Solicitor for the Respondent:	Small Myers Hughes

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 447 of 2014

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

COMMISSIONER OF TAXATION

Applicant/Appellant

AND:

YII ANN HII

Respondent

JUDGES:	EDMONDS, GREENWOOD AND PAGONE JJ
DATE OF ORDER:	28 OCTOBER 2014
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The application for leave to appeal be allowed.

2. The appeal be allowed.

3. The respondent pay the applicant’s costs as agreed or taxed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 447 of 2014

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

COMMISSIONER OF TAXATION

Applicant/Appellant

AND:

YII ANN HII

Respondent

JUDGES:	EDMONDS, GREENWOOD AND PAGONE JJ
DATE:	28 OCTOBER 2014
PLACE:	BRISBANE

REASONS FOR JUDGMENT

THE COURT:

1 It appears to the Court that in deciding to make an order under Pt 30 of the Federal Court Rules 2011, specifically under Rule 30.01, that eight questions be determined separately from other questions in the proceeding, the primary judge failed to apply the correct principles as established by the authorities.

2 Rather than commence from the principle that all issues of fact and law should be determined at the same time: Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 and proceed to consider and weigh the advantages of utility, economy and fairness offered by a separate determination of the eight questions over that offered by a trial of all issues of fact and law at the same time, his Honour confined his consideration of such advantages to those offered by the application for summary judgment dated 28 April 2014: Reasons for Judgment dated 8 September 2014 at [12] and [13]. In so doing his Honour erred and the exercise of his discretion miscarried.

3 The application for leave to appeal should be allowed; and the appeal should be allowed with costs.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Edmonds, Greenwood and Pagone.

Associate:

Dated: 31 October 2014

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