Federal Court of Australia

O'Neill v Deputy Commissioner of Taxation [2021] FCA 322

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 39.05 of the Federal Court Rules 2011 (Cth), the Court’s orders made on 6 November 2020 are varied so as to substitute for paragraph 1 of those orders the following:

Orders 1, 2, 3, 4, 5, 7, 8, and 9 of the orders dated 23 September 2020 are set aside and the following orders made in their place.

2.    For the avoidance of doubt, the variation of the order made on 6 November 2020 effected by these orders operates nunc pro tunc.

3.    An amended form of the Court’s orders made on 17 December 2019 be entered in the terms attached in Schedule A of these orders.

4.    Costs of the questions determined today be costs in the proceeding.

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

SCHEDULE A

Federal Court of Australia

District Registry: Victoria

STEPHEN MARK O'NEILL

Applicant

DEPUTY COMMISSIONER OF TAXATION

Respondent

ORDER

THE COURT NOTES THAT:

The endorsement containing the penal notice attached to this order immediately below was added pursuant to the order of the Court made on 1 April 2021.

THE COURT ORDERS THAT:

1.    Pending further order, subject to order 2, the applicant must not further mortgage, charge or otherwise further encumber, dispose of, enter into a contract or other agreement for the disposal of, or otherwise deal with, or diminish the value of the following properties:

(a)    Lot 7 in Deposited Plan 711098, Folio 7/711098 situated at 43 Florence Wilmot Drive, Nambucca Heads, New South Wales, 2448 (Folio: 7/711098).

(b)    situated in Queensland:

(i)    Lot 1 on Survey Plan 213221, Title Reference: 50763047 situated at 1/5 Ashbourne Terrace, Biggera Waters, Queensland, 4216 (Title Reference: 50763047);

(ii)    Lot 2 on Survey Plan 213221, Title Reference: 50763048 situated at 2/5 Ashbourne Terrace, Biggera Waters, Queensland, 4216 (Title Reference: 50763048);

(iii)    Lot 3 on Survey Plan 213221, Title Reference: 50763049 situated at 3/5 Ashbourne Terrace, Biggera Waters, Queensland, 4216 (Title Reference: 50763049); and

(iv)    Lot 4 on Survey Plan 213221, Title Reference: 50763050 situated at 4/5 Ashbourne Terrace, Biggera Waters, Queensland, 4216 (Title Reference: 50763050).

(c)    Allotment 2 in Deposited Plan 16373, Volume 5754 Folio 94 situated at 205 Windebanks Road, Aberfoyle Park, South Australia, 5159 (Certificate of Title - Volume 5754 Folio 94).

(d)    situated in Victoria:

(i)    Lot 5 on Plan of Subdivision 614354Q, Volume 11117 Folio 189 situated at 24A Cypress Avenue, Brooklyn, Victoria, 3012 (Volume 11170 Folio 384);

(ii)    Lot 6 on Plan of Subdivision 614354Q, Volume 11117 Folio 189 situated at 24 Cypress Avenue, Brooklyn, Victoria, 3012 (Volume 11170 Folio 385);

(iii)    Lot 7 on Plan of Subdivision 042828, Volume 04013 Volume 498 situated at 24 Wattle Valley Road, Mitcham, Victoria, 3132 (Volume 08224 Folio 011);

(iv)    Lot 13 on Plan of Subdivision 647157G, Volume 08460 Volume 875 situated at Flat 201, 500 Dandenong Road, Caulfield North, Victoria, 3161 (Volume 11456 Folio 184); and

(v)    Lot 606 on Plan of Subdivision 218847P Volume 09941 Folio 399 situated at 15 Maltravers Crescent, Cranbourne North, Victoria, 3977 (Volume 09978 Folio 257).

2.    The applicant and the respondent may agree in writing to vary the orders in paragraph 1. In that case the applicant or respondent must as soon as practicable file with the Court and serve on the other a minute of a proposed consent order recording the variation signed by or on behalf of the applicant and respondent and the Court may thereafter vary the orders in paragraph 1 accordingly.

3.    The respondent file and serve any cross claim and supporting affidavit by no later than 4.00 pm on 20 December 2019.

4.    The respondent file an affidavit outlining the matters that were considered by the decision-maker in making his decision to require the applicant to give security under s 255-100 of Schedule 1 to the Taxation Administration Act 1953 per the notice issued to the applicant on 16 September 2019 by no later than 3 February 2020.

5.    The applicant have leave to amend his originating application and file and serve any amended originating application by no later than 4.00 pm on 24 January 2020.

6.    The applicant file and serve any further affidavit material in support of his application by no later than 4.00 pm on 31 January 2020.

7.    The respondent file and serve any affidavit material on which it relies in opposition to the applicant’s application and further affidavit material in support of its cross-claim by no later than 4.00 pm on 28 February 2020.

8.    The applicant file and serve any affidavit material in reply by no later than 4.00 pm on 27 March 2020.

9.    The proceeding is listed for a case management hearing at 9.30am on Friday 1 May 2020.

10.    Costs reserved.

11.    Each party has liberty to apply.

REASONS FOR JUDGMENT

(Delivered ex tempore, revised)

WHEELAHAN J:

Background

1    The applicant commenced this proceeding on 14 October 2019 seeking judicial review of a decision of the respondent to issue a notice to the applicant pursuant to s 225-100 of the Taxation Administration Act 1953 (Cth) requiring him to give security by means of a registered mortgage over eleven properties in Victoria, New South Wales, Queensland, and South Australia that were identified in the notice in respect of a personal tax liability of $6,926,357.06. The respondent has filed a cross claim seeking a declaration that the applicant has not complied with the notice, and seeking orders requiring compliance.

2    On 17 December 2019, I made orders by consent that pending further order, the applicant must not further mortgage, charge or otherwise further encumber, dispose of, enter into a contract or other agreement for the disposal of, or otherwise deal with, or diminish the value of the eleven properties that were identified in the text of the order. This order was subject to the following qualification –

2.    The applicant and the respondent may agree in writing to vary the orders in paragraph 1. In that case the applicant or respondent must as soon as practicable file with the Court and serve on the other a minute of a proposed consent order recording the variation signed by or on behalf of the applicant and respondent and the Court may thereafter vary the orders in paragraph 1 accordingly.

3    The orders that were made on 17 December 2019 followed the terms of a minute of consent orders dated 13 December 2019 that was signed by the solicitors for both parties. Neither the parties’ minute of consent orders nor the orders that were entered by the Court contained an endorsement required by r 41.06 of the Federal Court Rules 2011 (Cth), which is in the following terms –

41.06    Endorsement on order

If an order requires a person to do, or not to do, an act or thing, whether within a certain time or not, and the consequences of failing to comply with the order may be committal, sequestration or punishment for contempt, the order must carry an endorsement that the person to be served with the order will be liable to imprisonment, sequestration of property or punishment for contempt if:

(a)    for an order that requires the person to do an act or thing—the person neglects or refuses to do the act or thing within the time specified in the order; or

(b)    for an order that requires the person not to do an act or thing—the person disobeys the order.

4    The orders made on 17 December 2019 also provided for a timetable for procedural steps. Further orders of a procedural character were made in Chambers on 29 April 2020 and 22 July 2020.

5    On 22 September 2020, I made detailed orders in Chambers of a procedural nature fixing the proceeding for hearing on 7 April 2021, and providing for the filing and service of submissions, and a court book. A second set of orders was made on 23 September 2020, which corrected a typographical error in the orders made the previous day to which the parties had drawn the Court’s attention.

6    On 5 October 2020, I re-fixed the hearing for 14 April 2021, and on 8 October 2020 I again re-fixed the hearing for 19 July 2021 after the parties confirmed by email that this date was suitable to counsel.

7    On 29 October 2020, the solicitors for the applicant sent an email to the solicitor for the respondent requesting that the dates in the procedural orders made on 23 September 2020 be varied. The practical effect of the proposed variations was to shift the timetable back so that the procedural steps would terminate with the filing of a court book on 30 June 2021. On 4 November 2020, the solicitor for the respondent responded by email, and agreed to the applicant’s proposal. The applicant’s solicitors then prepared proposed consent orders to which the respondent’s solicitor agreed and signed.

8    On 5 November 2020, the applicant’s solicitors sent the signed consent orders to the Court, stating that the parties had agreed to a variation of the timetable. The email to the Court from the applicant’s solicitors was in the following terms –

We advise the parties have agreed to vary the existing timetabling orders.

Please see attached signed minutes of proposed consent orders and corresponding orders in Word format for his Honour’s consideration.

Should you require any further information, please do not hesitate to contact our office.

9    Paragraph 1 of the proposed consent orders was in the following terms –

Orders 1, 2, 3, 4, 5, 7, 8, and 9 of the orders dated 23 September 2020 are set aside and the following orders made in their place.

10    The proposed orders then set out in a further eight paragraphs detailed procedural orders of the same character as those made on 23 September 2020, but with later dates for compliance.

11    On 6 November 2020, I made orders in Chambers in response to the parties’ request to vary the timetable, and my Chambers sent the orders to the parties by way of a reply to the applicant’s solicitors’ email of 5 November 2020. The text of paragraph 1 of the orders made by the Court on 6 November 2020 departed from the text that had been proposed by the parties in that the order as made provided –

All extant orders are discharged.

12    On 17 December 2020, the applicant’s solicitors wrote to the respondent’s solicitor seeking the respondent’s consent to vary the orders made by the Court on 17 December 2019 so as to permit the applicant to sell two properties that were the subject of the injunction in order to discharge other debts. The letter stated that the auction of a property in Mitcham, Victoria, was scheduled for 19 December 2020, and that the auction of a property in Aberfoyle Park, South Australia, was scheduled for 13 February 2021. The letter commenced as follows –

We refer to the above proceeding and to the orders made 17 December 2019 (“Orders”), a copy of which is enclosed for your ease of reference.

The Orders provide, inter alia, that our client is not permitted to further mortgage, charge or otherwise further encumber, dispose of, enter into a contract or other agreement for the disposal of, or otherwise deal with, or diminish the value of any of the properties set out in the Orders, unless otherwise agreed between the parties.

We are instructed that due to ongoing pressure from the mortgagee (“CBA”), it has become necessary for our client to place on the market and sell the following two properties:

…

13    On 18 December 2020, the respondent’s solicitor advised the applicant’s solicitors by email that, given the late notification, the respondent was not in a position to consent to the variation of the orders made on 17 December 2019, and sought further information.

14    On 21 December 2020, the respondent’s solicitor wrote to the applicant’s solicitors by email drawing attention to a website article suggesting that the auction of the Mitcham property had proceeded on 19 December 2020, and had been sold. On 22 December 2020, the applicant’s solicitors confirmed by email to the respondent’s solicitor that the Mitcham property had indeed been sold.

15    On 4 March 2021, the respondent filed an interlocutory application seeking a wide range of orders.    

16    The interlocutory application was listed for case management on 12 March 2021. At that hearing counsel for the respondent foreshadowed that there was an issue between the parties as to whether paragraph 1 of the orders made on 6 November 2020 had the effect of discharging the injunctive order that had been made on 17 December 2019. Counsel for the applicant stated that his instructions were that the orders of 17 December 2019 had been discharged by the orders made on 6 November 2020. In consequence, I made orders giving leave to the respondent to amend the interlocutory application to seek orders addressing the dispute as to whether the injunction had been discharged, and I also fixed for hearing the following questions, which are now before the Court –

(a)    the proper construction of order 1 of the orders made on 6 November 2020;

(b)    if necessary, whether any order should be made under r 39.05 of the Federal Court Rules 2011 (Cth) to vary order 1 of the orders made on 6 November 2020;

(c)    whether any order should be made under r 39.05 of the Federal Court Rules 2011 (Cth) to vary the orders made on 17 December 2019 so as to include an endorsement as required by r 41.06; and

(d)    the respondent’s application to join additional parties to the cross-claim.

17    Subsequently, on 19 March 2021 the respondent filed an amended interlocutory application. Relevantly, the orders sought in the amended application included –

1.    A declaration that Orders 1 and 2 of Justice Wheelahan dated 17 December 2019 are unaffected by Order 1 of the Orders of Justice Wheelahan dated 6 November 2020 and have remained in force at all times since 17 December 2019.

2.    In the alternative to the order sought in paragraph 1 above, pursuant to rule 39.05(h) of the Federal Court Rules 2011, Order 1 of the Orders of Justice Wheelahan dated 6 November 2020 are varied as follows or in any manner the Court otherwise thinks fit:

“1. All extant orders are discharged, except for Orders 1 and 2 of the Orders of Justice Wheelahan dated 17 December 2019.”

3.    In the alternative to the orders sought in paragraphs 1 and 2 above, Orders 1 and 2 of Justice Wheelahan dated 17 December 2019 are reinstated, except for paragraphs 1(c) and 1(d)(iii).

4.    Pursuant to rule 41.06 of the Federal Court Rules 2011, the Orders of Justice Wheelahan dated 17 December 2019 be affixed with an endorsement that the applicant will be liable to imprisonment, sequestration of property or punishment for contempt if he disobeys the order.

18    In addition, the amended interlocutory application sought the joinder of the Registrars of Titles of three States in which the applicant holds property that was the subject of the orders of 17 December 2019.

The parties’ submissions

19    Counsel for the applicant submitted that the ordinary rules of construction applied to orders made by a court, and accepted that evidence of surrounding circumstances may be admitted to resolve some ambiguity in the order. In relation to the construction of court orders, counsel submitted that the authorities went no further than to authorise consideration of reasons for judgment, the pleadings, and possibly evidence led before the Court. Otherwise, the task of construction should focus on the text of the order, which in the case of paragraph 1 of the orders of 6 November 2020 was clear, unambiguous, and susceptible of one meaning only, namely that it had the effect of discharging the injunction granted on 17 December 2019. Otherwise, counsel accepted that the Court could make orders afresh, thereby reinstating the orders with prospective effect.

20    In relation to the power of the Court under r 39.05 of the Federal Court Rules to vary the orders made on 6 November 2020, it was submitted that such an order would lack utility unless it was made with retrospective effect. It was submitted that such an order should not be made because it would alter retrospectively the substantive rights of the applicant.

21    In relation to the respondent’s application to vary the orders made 17 December 2019 to add an endorsement as required by r 41.06, counsel for the applicant opposed this application on the ground that the orders had been discharged, and that therefore adding the endorsement would lack utility.

22    Counsel for the respondent submitted that upon a proper construction of paragraph 1 of the orders made on 6 November 2020, orders 1 and 2 of the orders made on 17 December 2019 were not discharged. Counsel submitted that it was appropriate to construe the orders in the context of surrounding circumstances, and that it was not necessary for there to be an ambiguity on the face of the order for the order be construed in its context. Counsel submitted that the context in which the orders of 6 November 2020 were made included the correspondence between the parties, the form of the signed minute of consent orders that was sent to the Court, and the subject-matter of that correspondence and the signed minute, which was not concerned with the continued operation of the injunction. The respondent submitted that a declaration should be made that the orders of 17 December 2019 have remained in force at all times.

23    Alternatively, counsel submitted that paragraph 1 of the orders made on 6 November 2020 should be varied under r 39.05 to make it clear that paragraphs 1 and 2 of the orders of 17 December 2019 have not been discharged.

24    In the further alternative, counsel for the respondent submitted that paragraphs 1 and 2 of the orders made 17 December 2019 should be reinstated.

25    Finally, counsel for the respondent made an application to have the endorsement required by r 41.06 placed upon the 17 December 2019 orders.

Consideration

26    I accept the submission of counsel for the respondent that ambiguity is not required before regard may be had to context when construing a court order, including consent orders: Australian Energy Ltd v Lennard Oil NL (No 2) [1988] 2 Qd R 230 at 232 (Andrews CJ, Kelly SPJ agreeing); Yates Property Corporation Pty Ltd v Boland [1998] FCA 1605; 89 FCR 78 at 78-79 (Drummond J, Sundberg J and Finkelstein J agreeing); Kirkpatrick v Kotis [2004] NSWSC 1265; 62 NSWLR 567 at [39]-[45] (Campbell J); AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81 78 NSWLR 302 at [98] (Campbell JA, Handley AJA agreeing). This approach is coherent with the modern principles of statutory construction, and with recent statements relating to the construction of contracts involving the identification of the commercial purpose or object of a contract: Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 at [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ); Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; 256 CLR 104 at [49] (French CJ, Nettle and Gordon JJ). Furthermore, recourse may be had to correspondence between the parties to ascertain the objective intention of the parties to consent orders: Cassaniti v Paragalli [2006] NSWSC 50 at [18] (Campbell J). That is because in some instances, as here, the consent orders are the embodiment of an agreement between the parties. I therefore reject the submissions of counsel for the applicant that the scope of contextual material to which the Court may have regard is limited to pleadings, reasons for judgment, and possibly evidence upon trial. The authorities do not support that limitation.

27    Kirkpatrick v Kotis, referred to above, concerned a charge of contempt of an order made by consent. Campbell J held at [57] that for the purposes of determining whether there was ambiguity in an order such that the order lacked the degree of clarity necessary to sustain the charge of contempt, it was permissible in the case of a party to the consent order to look to surrounding circumstances as an aid to construction.

28    As a question of construction, I do not consider that paragraph 1 of the Court’s orders of 6 November 2020 had the effect of discharging the injunction granted by the orders of 17 December 2019. The reference to discharging extant orders is properly to be construed in context as the extant timetabling orders identified in the parties’ minute of consent orders dated 5 November 2020. That is because: (1) it is permissible, particularly in the case of consent orders, to have regard to context in construing the orders; (2) ambiguity on the face of the orders is not necessary before regard may be had to context as an aid to construction; (3) nonetheless, the term “extant orders” invites attention to context so as to determine what orders were extant and thereby discharged; (4) when regard is had to context in this case, the objective intention of both parties in seeking the orders was unambiguous and clear, namely to do no more than to adjust the timetable of steps to prepare the matter for hearing; and (5) the orders of 17 December 2019 were also made as a result of an agreement between the parties, and by their terms contemplated a variation as a result of express agreement between the parties, which has not occurred.

29    Notwithstanding my conclusion in relation to the question of construction of the orders, I decline to make a declaration as sought by the respondent. That is because ordinarily a declaration is a final declaration of right, and the effect of granting a declaration may be far-reaching. In this case, a declaration may bear upon any contempt proceedings that might be brought against the applicant, or any person who is alleged to have knowingly assisted him in breaching the orders of 17 December 2019. On any such application, the question whether the orders made on 6 November 2020 led to any ambiguity such that a contempt charge could not be sustained may arise: see, Australian Consolidated Press Ltd v Morgan [1965] HCA 21; 112 CLR 483 at 515–516 (Owen J). It would not be appropriate in this interlocutory hearing to make a declaration that may conceivably encroach on that issue.

30    The objective purpose of the orders made on 6 November 2020 was to give effect to the parties’ agreement that the timetable be varied in the manner proposed by the parties’ correspondence, and as evidenced by the minute of consent orders provided to the Court. It would have been better if the Court had followed the form of the parties’ consent rather than substituting its own form of words for paragraph 1 of the orders of 6 November 2020, and which has recently given rise to disputation between the parties. To that extent, the order did not reflect the intention of the Court, and there is an error arising from an accidental slip or omission, thereby engaging the Court’s power under r 39.05(e) and (h) to vary the order after it has been entered. Moreover, the order was interlocutory, and this feature of the order is sufficient to engage the Court’s power to vary it: r 39.05(c). Therefore, the power of the Court in this case is broad, and is not confined to the circumstances in r 39.05(e) and (h). It is open to the Court to vary the terms of the order in the same way the terms of an instrument might be rectified in equity, but without the constraints of equitable principles. The power may be exercised in furtherance of the overarching purpose in s 37M of the Federal Court of Australia Act 1976 (Cth) by quelling a dispute about the meaning of the text of the Court’s orders of 6 November 2020, when the objective purpose was clear beyond argument, and was the subject of agreement between the parties. The effect of the order for variation would be that the variation would speak from the date that the original orders of 6 November 2020 were made: see, Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd [1995] FCA 943; 61 FCR 385 at 391 (Lockhart J, Black CJ agreeing); VFS Group Pty Ltd v BM2008 Pty Ltd (in liq) [2010] VSCA 277; 80 ACSR 240 at [25] (Tate JA, Nettle JA and Harper JA agreeing).

31    The applicant adduced no evidence of any prejudice that he would suffer if the order were varied, including with effect nunc pro tunc so as to reflect the objective intention of the parties to the proceeding and of the Court at the time the order was made. There is no evidence that the applicant has acted, or has refrained from acting in reliance on some belief that the orders of 17 December 2019 were discharged. On the contrary, it appears from the terms of the letter from the applicant’s solicitors to the respondent’s solicitor dated 17 December 2020, to which I referred at [12] above, that the applicant was well aware of and conscious of the operation of the orders made on 17 December 2019 prior to the sale of the Mitcham property. That is because the applicant sought a variation of the orders so as to permit the sale. An order varying the terms of the order of 6 November 2020 with effect nunc pro tunc should not prejudice the applicant if contempt proceedings were brought against him for breach of the orders of 17 December 2019. It would remain open to the applicant to argue, if the material permitted, that the operation of the order at the time of any alleged contravention was ambiguous such that a finding of contempt should not be made.

32    Finally, it is appropriate to enter an amended form of the interlocutory orders made on 17 December 2019 with the endorsement required by r 41.06, as the orders have continuing effect. The purpose of an endorsement under r 41.06 is to give notice to parties served with an order requiring that a person is not to do an act or thing, of the consequences of disobedience of the order where those consequences may be committal, sequestration or punishment for contempt. However, this purpose is to be considered in the context of r 41.07(2), which provides that personal service of an order mentioned in r 41.06 is not required if the person was present when the judgment was pronounced or the order made, or if the person was notified of the terms of the order orally, by telephone, or electronically. In this case, the injunctive orders made on 17 December 2019 were made by agreement between the parties which was reflected in a minute of consent orders dated 13 December 2019 that was signed by the parties’ solicitors.

33    In my view, the entry of an amended form of interlocutory orders with an endorsement required by r 41.06 may be achieved by an order made under r 1.32, which authorises the Court to make any order it considers appropriate in the interests of justice. Further, in Director of Consumer Affairs Victoria v Gibson (No 4) [2018] FCA 1868, Mortimer J held at [63]-[67] that r 39.05 may also be a source of power, because the power in r 39.05 to vary an order includes the power to vary any part of the document constituting the order.

34    In the circumstances of this case, I shall order that an amended form of the interlocutory orders made on 17 December 2019 be entered with the addition of an endorsement that complies with r 41.06. The text of the amended form of interlocutory orders shall note that the endorsement has been added pursuant to the Court’s order made today. A documentary form of the orders with the endorsement as entered may then be served, if required. The legal consequences of the absence of the endorsement on the interlocutory order as originally entered is not an issue currently before the Court: see the detailed discussion by Mortimer J in Director of Consumer Affairs Victoria v Gibson (No 4) at [57] and [73]-[100] and the cases cited therein.

Joinder of parties

35    In the above circumstances, counsel for the respondent did not pursue an order that any additional parties be joined to the proceeding at this time, and so it is unnecessary to address that issue.

Associate:

Dated:    6 April 2021