Brain v Chief Executive Officer Fiji Revenue & Customs Authority [2015] FJCA 157; ABU047 & ABU048.2013 (3 December 2015)

IN THE COURT OF APPEAL
[On Appeal from the High Court]

CIVIL APPEAL NO. ABU 047 & ABU 048 of 2013
[High Court Civil Action No. HBA 08 & HBA 09 of 2012)

BETWEEN :

1. MALCOLM GRIFFITH BRAIN
2. JOHN STEWART HILL
Appellants

AND:

CHIEF EXECUTIVE OFFICER
FIJI REVENUE & CUSTOMS AUTHORITY
Respondent

Coram : Calanchini, P
Lecamwasam, JA
Wati, JA

Counsel : Mr. J. Apted and Ms. N. Basawaiya for the Appellants
Ms. T. Rayawa for the Respondent

Date of Hearing : 13 November 2015
Date of Judgment : 3 December 2015

JUDGMENT

Calanchini P

[1] I agree that the appeal should be allowed with no orders as to costs.

Lecamwasam JA

[2] This is an appeal by the appellants against the judgment of the High Court at Suva delivered on the 2nd August 2013. The facts briefly are as follows:

[3] The appellants namely viz: Griffith Brain and John Hill are shareholders in a company. The Fiji Revenue and Customs Authority assessed them to pay income tax amounting to F$1.46 million on the sale of their shares in the company. Being aggrieved by the above assessment they challenged it before the Tax Tribunal but the Tax Tribunal having upheld the assessment of the Revenue and Customs Authority, the appellants yet again appealed the decision of the Tax Tribunal to the Tax Court.

[4] The appellants filed the following grounds of appeal:

1. That the Learned Judge erred in law when he failed to find that there is no condition in the Tax Administration Decree that an appeal is invalid if it does not strictly comply with the requirements as laid out in S107.
   
2. That the Learned Judge erred in law when stated at Paragraph 15 that he procedural requirement in the Tax Administration Decree cannot be considered in relation to Section 8 of the Acts Interpretation Act.
   
3. That the Learned Judge erred in law when stated at Paragraph 15 that the procedural requirement in the Tax Administration Decree cannot be considered in relation to Section 8 of the Acts Interpretation Act and in light of the Supreme Court judgments referred to relate to non-compliance with Rules of the Court. The issue before the Court was non-compliance with the Tax Administration Decree.
   
4. That the Learned Judge erred in law in failing to find that since 8 of the 10 grounds of appeal from the Tax Tribunal to the High Court are on Questions of Law, an appeal lies as of right pursuant to S107(4)(b).
   
5. That the Learned Judge erred in law in dismissing the appeal when he failed to consider that it is a matter of public interest and importance that the appeal proceed given that the Tax Tribunal's Interpretation of S11(a) of the Income Tax was inconsistent with the settled law of Fiji, as laid down by the High court.
   
6. That the Learned Judge erred in law in dismissing the appeal when he failed to consider that it is a matter of public interest and importance that the appeal proceed given that the Tax Tribunal's interpretation of S11(a) of the Income Tax Act was inconsistent with the interpretation of S11(a) of the Income Tax Act by the Respondent (FRCA) as provided in FIRCA's Practice Statement.
   
7. That the Learned Judge erred in law in dismissing the appeal as it is in the interests of justice that this case proceeded so that the interpretation of S11(a) used by the Tax Tribunal is analysed.
   
8. That the Learned Judge erred in law in dismissing the appeal on the basis that it was defective in terms of Tax Administration Decree when in fact there is no prescribed form for tax appeals and this Appeal meets the requirements of the Appeals that are filled in the High Court. The Tax Administration Decree also provides that the High Court can apply its own rules and thus abiding by the High Court requirements should not have invalidated the appeal.
   
9. That the Learned Judge's decision is unfair and unreasonable in all the circumstances.
   
10. That the Learned Judge's decision to award costs against the Appellant is to be stayed pending the outcome of the appeal.
    
11. The Appellant reserves the right to file and argue such further and/or other grounds as will be made out at the production of the Copy Record of the proceedings at the hearing of this Appeal.
    
12. The Appellant prays that based on the foregoing grounds, the Appeal is upheld and the matter is re-heard before a differently constituted Tax Tribunal.
    

[5] The Tax court Judge dismissed the appeal of the appellants on the premise that the appellants have failed to comply with the requirements of Section 107 (3) (b) of the Tax Administration Decree of 2009 (TAD). This appeal is against the above order of the Tax Court Judge.

Section 107 of the Tax Administration Decree reads as follows:

107.-(1) A party to proceedings before the Tribunal who is aggrieved by a decision of the Tribunal in the proceedings may appeal as of right or by leave to the Court.

(2) An appeal to the Court must be made in the prescribed manner within 28 days from the date of the decision of the Tribunal.

(3) A notice of appeal must specify-

(a) the grounds of appeal;

(b) the decision or the part of the decision appealed from; and

(c) the precise form of the order which the appellant proposes to seek from the Court.

(4) Subject to subsection (2) an appeal lies as of right to the Tax Court:

a) from any first instance decision of the Tribunal; or

b) where any ground of appeal from the Tribunal involves a question of law.

[6] On a careful perusal of the Notice of Appeal it is crystal clear at the very outset the appellants in their respective appeals had adverted to the intention of appealing the entire judgment by stating thus; 'the applicant seeks to appeal the judgment dated 31/1/2012' on the following grounds: and then went on to state the grounds of appeal. Hence it is more than obvious that it was the intention of the appellants to appeal against the whole judgment. Judgment, which is the decision of the court. It is apparent that the learned High Court Judge had come to a hasty conclusion in dismissing the action without perusing the notice of appeal carefully.

[7] The learned high Court Judge has discussed at length the applicability of Section 107 and whether it is directory or mandatory. A discussion on it would be repetitive as well as redundant because on a mere perusal of the petition of appeal it is manifestly clear that the appellant had stated in the opening sentence itself that he is appealing against the judgment dated 31/01/2012 and not any specific part of it.

[8] In view of this position it becomes unnecessary to answer the grounds of appeal urged by the appellants separately. I am satisfied that the appellants have complied with the requirements of Section 107 (3) (b) hence the appeal should be allowed and therefore the order of dismissal of the High Court dated 31 January 2012 is hereby set aside.

[9] At this juncture it is relevant to advert my attention to Order 2 of High Court Rules 1988 at Non-Compliance with rules (O.2, r.1) The rules state thus:

Non-Compliance with rules (0.2, r.1)

1.-(1) Where, in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these Rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein,

(2) Subject to paragraph (3), the Court may, on the ground that there has been such a failure as is mentioned in paragraph (1), and on such terms as to costs or otherwise as it thinks just, set aside either wholly or in part the proceedings in which the failure occurred, any step taken in those proceedings or any document, judgment or order therein or exercise its powers under these Rules to allow such amendments (if any) to be made and to make such order (if any) dealing with the proceedings generally as it thinks fit.

(3) The Court shall not wholly set aside any proceedings or the writ or other originating process by which they were begun on the ground that the proceedings were required by any of these Rules to be begun by an originating process other than the one employed.

Application to set aside for irregularity (0.2, r.2)

2.-(1) An application to set aside for irregularity any proceedings, any step taken in any proceedings or any document, judgment or order therein shall not be allowed unless it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity.

(2) An application under this rule may be made by summons or motion and the grounds of objection must be stated in the summons or notice of motion.

[10] Accordingly the alleged failure of the appellants to comply with the requirements of Section 107(3) (b) is only an irregularity and the learned Tax Court Judge thus should have given an opportunity to the appellants to comply with the requirements, without dismissing the action. A dismissal causes an irreparable loss to a party by depriving the party of agitating his/her rights before court.

[11] In light of the above, I cannot concur with the conduct of the learned Judge in the dismissal of the action without carefully perusing the notice of appeal. Hence the order of dismissal dated 31/01/2012 is set aside. Parties to bear their own costs.

Wati JA

[12] I agree.

The Orders of the Court are:

1. The Order of the court dated 31/1/2012 is set aside.
2. The appeal to be remitted to the Tax Court for hearing of the Appeal.
3. Parties to bear their own costs.
   

Hon. Mr. Justice W. Calanchini
PRESIDENT, COURT OF APPEAL

Hon. Mr. Justice S. Lecamwasam
JUSTICE OF APPEAL

Hon. Madam Justice A. Wati
JUSTICE OF APPEAL