Court of Appeal denies automatic right of appeal

Summary

The appellant (Ms Jacobs) did not have an automatic right of appeal to the Court of Appeal (as her Taxation Review Authority (TRA) proceeding did not amount to a challenge) and therefore the Court of Appeal did not have jurisdiction to entertain her appeal. Leave of the High Court needed to be sought.

Impact of decision

This decision confirms that where a proceeding does not amount to a valid challenge, there is no automatic right of appeal to the Court of Appeal and the proper course of action is to apply to the High Court (in the first instance) for leave to appeal under section 67 of the Judicature Act 1908.

This is the first Court decision to find that the TRA is an "inferior court" for the purposes of the Judicature Act 1908.

Facts

The appellant appealed to the High Court against a decision of the TRA, which had held that the Commissioner's failure to respond to the appellant's late notice of proposed adjustment with a compliant notice of response did not amount to a deemed acceptance of the appellant's proposed adjustment. The High Court dismissed the appellant's appeal. The appellant then appealed to the Court of Appeal.

Counsel for the Commissioner submitted that the Court of Appeal had no jurisdiction to hear the appellant's appeal on the basis that:

• an automatic right to appeal to the Court of Appeal only accrues where the appellant falls within sections 26A and 28 of the Taxation Review Authorities Act 1994 which provides that appeals are only available in respect of challenges commenced under Part 8A of the Tax Administration Act 1994 ("TAA"); and
• otherwise, the appellant must first seek the leave of the High Court under section 67 of the Judicature Act 1908.

Counsel for the appellant accepted that the proceeding brought before the TRA did not amount to a challenge and did not strenuously resist the proposition that the TRA was an "inferior court" for the purposes of section 67 of the Judicature Act 1908.

Decision

The Court of Appeal held that while there is a right of appeal to the Court of Appeal in respect of challenges under Part 8 of the TAA, it is now accepted that the proceeding held before the TRA was not such a challenge.¹

Accordingly, the Court of Appeal dismissed the appellant's appeal as she did not have an automatic right of appeal and it did not have the jurisdiction to entertain her appeal.

The Court of Appeal further held that the TRA is an inferior court for the purposes of section 67 of the Judicature Act 1908. As such, leave of the High Court must first be sought by the appellant to appeal to the Court of Appeal.

¹ The Court of Appeal undoubtedly intended to refer to Part 8A of the TAA and not Part 8.