FEDERAL COURT OF AUSTRALIA

Gould v Commissioner of Taxation [2018] FCA 467

ORDERS

THE COURT ORDERS THAT:

1.    The matter be transferred from the Queensland District Registry to the New South Wales District Registry.

2.    The respondent file and serve all documents pursuant to rule 33.03 of the Federal Court Rules 2011 other than his appeal statement by 21 March 2018.

3.    The respondent file and serve his appeal statement by 6 April 2018.

4.    The applicant file and serve his appeal statement by 4 May 2018.

5.    The applicant file and serve all evidence on which he relies by 20 July 2018.

6.    The matter be listed for further case management after 20 July on a date to be given by the New South Wales docket Judge.

7.    The applicant (respondent to the transfer application) pay the respondents’ (applicant to the transfer application) costs of and incidental to the transfer of the application.

8.    Save as aforesaid, the costs of today be costs in the proceedings

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

REASONS FOR JUDGMENT

(Revised From Transcript)

LOGAN J:

1    On 8 February 2018, Mr Vanda Russell Gould filed in the Court’s Queensland District Registry a notice of appeal against an objection decision made by the respondent, the Commissioner of Taxation (the Commissioner), on 14 December 2017.

2    The Commissioner has applied for the transfer of the proceeding from the Queensland District Registry to the Court’s New South Wales District Registry. By r 33.02, the Federal Court Rules 2011 (Cth) make express provision as to where to start what the rules generically term an AOD appeal. That rule provides:

Starting AOD appeals

(1)    A person who wants to make an AOD appeal must file a notice of appeal, in accordance with Form 73.

(2)    The notice of appeal must:

(a)    briefly state the details of the reviewable objection decision; and

(b)    state the address of the office of the Australian Taxation Office shown on the written notice of the reviewable objection decision served on the applicant under the Taxation Administration Act.

(3)    The applicant must file a sealed copy of the notice of appeal in the Registry of the court in the State or Territory in which:

(a)    the office of the Australian Taxation Office mentioned in paragraph (2)(b) is located; or

(b)    if the applicant is an individual – the applicant ordinarily lives; or

(c)    if the applicant is a corporation – the applicant has its head office or carries on a significant part of its business.

(4)    The applicant must serve a sealed copy of the notice of appeal on the Commissioner at the office of the Australian Government Solicitor in the State or Territory in which the notice of appeal was filed.

(5)    If the appeal relates to a private ruling, the sealed copy of the notice of appeal must be served within 6 days after filing.

Note: The Registrar will fix a place for hearing and a return date and endorse those details on the notice of appeal. The return date will be:

(a)    if the appeal relates to private ruling – not later than 21 days after the application was filed or a later date agreed by the parties; or

(b)    in any other case – at least 5 weeks after the application was filed.

(6)    Personal service is not required for a document to be served on the Commissioner.

3    That express provision of a taxation appeal makes the reliance by Mr Gould on authorities, in respect of the proper place of the institution of proceedings other than a taxation appeal and applications for the transfer of the same, moot (see, for example, Hodder v Australian Workers’ Union (1985) 4 FCR 541 and Rafferty v Time 2001 Systems (Australia) Proprietary Limited (2008) FCA 1925).

4    Instead, one must first look to where, in terms of r 33.02, the proper place is. Of course, it is possible, notwithstanding the operation of that rule, for the Court to order that a proceeding be transferred to another registry if the interests of justice so dictate, and a very real consideration in that regard would be where conveniently the taxation appeal could be heard.

5    As it happens, the contemporary practice of the Australian Taxation Office in relation to the furnishing of an address of the Commissioner on an objection decision might be thought to be out of synchronisation with r 33.02(2)(b), or perhaps it might be thought the terms of that particular paragraph in that rule are out of synchronisation with the contemporary practice of the Commissioner.

6    In any event, the particular objection decision specifies no physical office address at all for the Commissioner’s apparent delegate, Ms Debbie Hastings, Deputy Commissioner of Taxation. In today’s digital age, it appears that Ms Hastings has what one might term a virtual rather than physical office presence, at least as far as one gleans that position from the face of the objection decision. The address that is specified is nothing more than a general post office box number “in your capital city”. It is common ground that the “your” in that specification of a postal address is that of the taxpayer. Where a taxpayer uses a tax agent, who may or may not be resident at the same location as the taxpayer, all sorts of permutations might arise.

7    It is unnecessary to explore those in this instance, thankfully, because the recipient address specified in the objection decision is an address in Sydney, New South Wales. At that time, 14 December 2017, and inferentially, when the objection decision was received in the ordinary course of the post, Mr Gould resided at a different address to that specified in the objection decision, but also in Sydney, New South Wales.

8    In Malackey Holdings Proprietary Limited v Commissioner of Taxation (2018) FCA 197 (Malackey Holdings), I was informed in the course of submissions by counsel for Malackey Holdings, Mr Hyde Page, who coincidentally appears today for Mr Gould, that Mr Gould lived in Sydney. The evidence discloses that between 6 February and 16 February this year, Mr Gould was abroad in the Philippines.

9    The evidence also includes a tenancy agreement in respect of premises on the Gold Coast, with the tenancy to commence on 31 January this year. Mr Gould is a party to that tenancy agreement. It is said that he and his wife had separated and that part of that separation entailed an intention on Mr Gould’s part to live in Queensland. Correspondence in the context of spousal maintenance in recent times has been directed to a Sydney address for Mr Gould, inferentially the same as the address in which he resided in December last year.

10    It appears to me that Mr Gould aspired to live in Queensland and may very well now be living in Queensland but that, as at 8 February this year, there was no settled residence in Queensland. I am not persuaded that the notice of appeal was filed in the proper place. That is by no means determinative, but it is a starting point.

11    As to considerations which might move one not to transfer the proceeding nonetheless, the evidence is that, from the Commissioner’s perspective and apart from Mr Gould, it is likely that the sources of documentary evidence will be New South Wales-based companies and that it is likely that other witnesses will come from overseas.

12    As for Mr Gould’s own convenience, he does not live in Brisbane. That means that if the trial is to occur here, he will face the burden of commuting by road or perhaps rail from the Gold Coast. It is a matter upon which I consider I can take judicial notice that there is a ready air transport link between the Gold Coast, via Coolangatta Airport, and Sydney.

13    All in all, the case is not one in which I am persuaded, having regard to considerations which I canvassed in Malackey Holdings, that the case is one which ought to be heard or even can more conveniently be heard in Brisbane. Rather, the case is one where the ordinary operation of the rule should follow, both based on the terms of the rule itself as well as questions of convenience.

14    As to questions of convenience, and although by no means ever determinative, it is also relevant to take into account that Mr Gould’s solicitor does not, apparently, practice from Queensland but rather Victoria, and his counsel, Mr Hyde Page, maintains chambers in Sydney. The Commissioner’s legal advisers are also Sydney-based.

15    For these reasons, there will be an order that transfers this taxation appeal from the Queensland District Registry to the New South Wales District Registry.

Associate:

Dated:    6 April 2018