WILLS v PETROULIAS [2003] NSWCA 390

WILLS v PETROULIAS [2003] NSWCA 390

The evidence before the magistrate, although presented in summary form, was sufficient to show a genuine ATO assertion or dispute contrary to the Private Binding Rulings on fringe benefits tax liability, so s 110 precluded quashing or setting aside the committal order except by amendment or remittal. Simpson J's discretion under s 109 also miscarried because Essenbourne was treated on an erroneous basis. The Court's previous orders failed to comply with s 110(2), and because the Court was not satisfied that it should itself amend the committal order, the proper course was to vacate the previous orders and remit the case to the magistrate to make the committal order authorised by law.

Jurisdiction
Australia
Judgment Date
22 December 2003
Procedural Posture
Application Pursuant to Pt 40 R 9 of the Supreme Court Rules 1970 to Set Aside or Vary a Court of Appeal Judgment / Court of Appeal Application After Judgment on Appeal From Committal Proceedings
Outcome
Application granted. Orders of 3 October 2003 vacated and substituted. Leave to appeal granted and appeal allowed. Case remitted to the magistrate. No order as to costs.
Legal Topics
['defrauding the Commonwealth' 'element of Loss or Deprivation' 'committal for Trial' 'private Binding Rulings' 'exercise of Discretion Under Justices Act 1902 Ss 109 and 110' 'costs Under Justices Act 1902 S 41 A']
['criminal Law' 'criminal Procedure' 'taxation'] ['defrauding the Commonwealth' 'element of Loss or Deprivation' 'committal for Trial' 'private Binding Rulings' 'exercise of Discretion Under Justices Act 1902 Ss 109 and 110' 'costs Under Justices Act 1902 S 41 A']

Case Brief

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Procedural Posture

Application Pursuant to Pt 40 R 9 of the Supreme Court Rules 1970 to Set Aside or Vary a Court of Appeal Judgment / Court of Appeal Application After Judgment on Appeal From Committal Proceedings

Legal Issues

  1. 1 ['Whether there was evidence before the magistrate sufficient to support committal for an offence under s 29D of the Crimes Act 1914 (Cth).' "Whether the Court of Appeal misunderstood Simpson J's reliance on Essenbourne Pty Ltd v Commissioner of Taxation [2002] FCA 1577." 'Whether s 110 of the Justices Act 1902 prevented the committal order from being quashed or set aside.' 'Whether the Opponent suffered relevant prejudice, including in relation to procedural fairness or costs under s 41A.' "Whether the Court's previous orders complied with s 110(2) of the Justices Act 1902."]

Ratio Decidendi

The evidence before the magistrate, although presented in summary form, was sufficient to show a genuine ATO assertion or dispute contrary to the Private Binding Rulings on fringe benefits tax liability, so s 110 precluded quashing or setting aside the committal order except by amendment or remittal. Simpson J's discretion under s 109 also miscarried because Essenbourne was treated on an erroneous basis. The Court's previous orders failed to comply with s 110(2), and because the Court was not satisfied that it should itself amend the committal order, the proper course was to vacate the previous orders and remit the case to the magistrate to make the committal order authorised by law.

Court Disposition

Application granted. Orders of 3 October 2003 vacated and substituted. Leave to appeal granted and appeal allowed. Case remitted to the magistrate. No order as to costs.

Orders

  • ['Vacate the orders of this Court of 3 October 2003 and substitute the following:' 'Leave to appeal granted.' 'Appeal allowed.' 'Orders 2, 3, 5 and 6 of 3 March 2003 are set aside.' 'Remit the case to the magistrate to make the order of committal authorised by law and to amend the order accordingly.' 'No order as to...