Commissioner of Taxation v Ma (1999) FCA 1509

Commissioner of Taxation v Ma (1999) FCA 1509

Because the first respondent had consistently indicated an intention to contest any purported service, the 28 July 1999 appearance could be viewed as an attempted Order 9 rule 7 application, and there was no utility in filing a motion before purported service under the later 29 July 1999 directions, the non-compliance with Order 9 rule 7(2) was not neglect for which the first respondent should be penalised. The conditional appearance was therefore ordered not to have effect as an unconditional appearance, and the requirements of Order 9 rule 7(2) were dispensed with insofar as they would preclude an Order 9 rule 7 application.

Jurisdiction
Australia
Judgment Date
20 October 1999
Procedural Posture
Practice and Procedure Concerning Service of Originating Process / First Respondent's Motion for Declaration That Originating Process Was Not Duly Served Or, Alternatively, That Service Be Set Aside; Application Concerning Effect of Conditional Appearance and Compliance With Order 9 Rule 7(2)
Outcome
Orders made in favour of the first respondent on the procedural applications; costs reserved.
Legal Topics
['service of Originating Process' 'conditional Appearance' 'setting Aside Service' 'dispensing With Compliance With Federal Court Rules' 'time for Filing Notice of Motion']
['practice and Procedure'] ['service of Originating Process' 'conditional Appearance' 'setting Aside Service' 'dispensing With Compliance With Federal Court Rules' 'time for Filing Notice of Motion']

Case Brief

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Procedural Posture

Practice and Procedure Concerning Service of Originating Process / First Respondent's Motion for Declaration That Originating Process Was Not Duly Served Or, Alternatively, That Service Be Set Aside; Application Concerning Effect of Conditional Appearance and Compliance With Order 9 Rule 7(2)

Legal Issues

  1. 1 ["Whether the first respondent's notice of motion under Order 9 rule 7 was precluded because it was not filed within 14 days after entry of the conditional appearance." 'Whether the conditional appearance filed on 28 July 1999 should have effect as an unconditional appearance.' 'Whether the requirements of Order 9 rule 7(2) should be dispensed with in the circumstances.']

Ratio Decidendi

Because the first respondent had consistently indicated an intention to contest any purported service, the 28 July 1999 appearance could be viewed as an attempted Order 9 rule 7 application, and there was no utility in filing a motion before purported service under the later 29 July 1999 directions, the non-compliance with Order 9 rule 7(2) was not neglect for which the first respondent should be penalised. The conditional appearance was therefore ordered not to have effect as an unconditional appearance, and the requirements of Order 9 rule 7(2) were dispensed with insofar as they would preclude an Order 9 rule 7 application.

Court Disposition

Orders made in favour of the first respondent on the procedural applications; costs reserved.

Orders

  • ['The conditional appearance filed on 28 July 1999 does not have effect for any purpose as an unconditional appearance.' 'The requirements of Order 9 rule 7(2) be dispensed with in so far as that rule would preclude any application for orders under Order 9 rule 7.' 'The costs of this application were reserved.']