Harpas v Commissioner of Taxation

Handley JA : The Court will dismiss this appeal for the reasons given by the trial Judge. However we also think that the procedure adopted was totally inappropriate in the first place.

Although the point was not taken by the Commissioner before Dunford J, the commencement of proceedings for a declaration in the Supreme Court when an action raising the same issue is pending in the District Court is totally inappropriate. If objection had been taken the Supreme Court should have dismissed these proceedings without embarking on the merits. If anyone else is tempted in the future to take proceedings in the Supreme Court for a declaration when an action raising the same issue is pending in the District Court the Court itself or the Commissioner should object to that procedure.

Declaratory relief was never intended to divide up or fracture legal proceedings pending in another court from which there is a full appeal on fact and law.

The order of the Court is appeal dismissed with costs.