Commissioner of Taxation (Cth) v Levy [1961] HCA 12

Commissioner of Taxation (Cth) v Levy [1961] HCA 12

Because the Commissioner's notice of appeal was not served within the time required by O. 70, r. 6 and no application to extend time was made within that period, a single Justice had no power to extend time after expiry and the appeal was incompetent. The respondent's late notice of objection to competency was not void, because time could be extended and non-compliance did not itself invalidate the proceeding. With the appeal incompetent, the respondent's cross-appeal was ineffective.

Jurisdiction
Australia
Procedural Posture
Income Tax Appeals; Appeal and Cross Appeal Competency Applications / Single Justice Hearing of Summons to Extend Time and Objections to Competency
Outcome
The Commissioner's application to extend time was dismissed; the objection to competency of the appeal was allowed; the appeal was dismissed as incompetent; the respondent's notice of cross-appeal was declared ineffective.
Legal Topics
['income Tax Assessments' 'notices of Appeal' 'service Out of Time' 'extension of Time' 'objection to Competency' 'cross Appeal' 'special Leave to Appeal']
['taxation' 'appellate Procedure'] ['income Tax Assessments' 'notices of Appeal' 'service Out of Time' 'extension of Time' 'objection to Competency' 'cross Appeal' 'special Leave to Appeal']

Case Brief

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Procedural Posture

Income Tax Appeals; Appeal and Cross Appeal Competency Applications / Single Justice Hearing of Summons to Extend Time and Objections to Competency

Legal Issues

  1. 1 ["Whether a single Justice had power to extend time for service of the Commissioner's notice of appeal after the twenty-one day period had expired without service or an application to extend time." "Whether the respondent's notice of objection to competency was void or ineffective because it was filed out of time." "Whether the Commissioner's appeal was incompetent." "Whether the respondent's notice of cross-appeal was effective if the appeal was incompetent."]

Ratio Decidendi

Because the Commissioner's notice of appeal was not served within the time required by O. 70, r. 6 and no application to extend time was made within that period, a single Justice had no power to extend time after expiry and the appeal was incompetent. The respondent's late notice of objection to competency was not void, because time could be extended and non-compliance did not itself invalidate the proceeding. With the appeal incompetent, the respondent's cross-appeal was ineffective.

Court Disposition

The Commissioner's application to extend time was dismissed; the objection to competency of the appeal was allowed; the appeal was dismissed as incompetent; the respondent's notice of cross-appeal was declared ineffective.

Orders

  • ['Application made by summons dismissed.' 'Objection to the appeal allowed.' 'Appeal dismissed as incompetent.' 'Notice of cross-appeal given by the respondent declared ineffective.' 'Costs of the appeal and of the various applications to be paid by the Commissioner, save those arising out of the giving of the...