Boyle and Commissioner of Taxation
[2005] AATA 584
•20 June 2005
CATCHWORDS – PRACTICE AND PROCEDURE – costs – whether Tribunal has power to make costs order for party summoned to produce documents – whether fees and allowances for expenses payable – whether person summoned to appear as a witness – whether “person” includes a body corporate – no power to make order.
Acts Interpretation Act 1901 ss. 22 and 28A
Administrative Appeals Tribunal Act 1975 ss. 5, 40, 67, 69A and 69B
Administrative Appeals Tribunal Regulations 1976 rr. 15 and 16; Schedule 2, cll. 1, 2 and 3
Australian Security Intelligence Organisation Act 1979 s. 54
Corporations Act 2001 ss. 9 and 109X
Freedom of Information Act 1982 s. 66
Income Tax Assessment Act 1936
Lands Acquisition Act 1989 s. 131
Mutual Recognition Act 1992 s.35
Safety, Rehabilitation and Compensation Act 1988 s. 67
Seafarers’ Rehabilitation and Compensation Act 1992 ss. 91 and 92
Taxation Administration Act 1953
Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477
Minister for Immigration and Ethnic Affairs v Gungor (1982) 42 ALR 209
Re A Taxpayer and Commissioner of Taxation (AAT 12219A, 16 October 1997)
Re Toomer and Department of Primary Industries and Energy (1991) 22 ALD 164
Rochfort v Trade Practices Commission (1982) 153 CLR 134
DECISION AND REASONS FOR DECISION [2005] AATA 584
ADMINISTRATIVE APPEALS TRIBUNAL )
) VT2004/112-116
TAXATION APPEALS DIVISION )
Re PETER BOYLE
Applicant
AndCOMMISSIONER OF TAXATION
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Date: 20 June 2005
Place: Melbourne
Decision:The Tribunal has decided that it does not have power to make an order with respect to the costs, fees and expenses incurred by Controlled Sprinkler Supplies Pty Ltd.
S A FORGIE
Deputy President
REASONS FOR DECISION
Mr Peter Boyle applied for review of an objection decision made by a delegate of the Commissioner of Taxation (“Commissioner”) disallowing his objection to five notices of assessment issued in relation to the taxation years ending 30 June 1997 to 2001. At Mr Boyle’s request, the Tribunal issued a summons to Controlled Sprinkler Supplies Pty Ltd (“CSS”) to appear at the Tribunal and to produce documents described in the summons. The summons was ultimately set aside on 8 April 2005 when Mr Livaditis, appearing for CSS, asked for costs. I have decided that I do not have the power to order that CSS be paid its costs.
THE ISSUE
The main issue in this case is whether Tribunal has power to order that CSS be paid its costs incurred in answering the summons to appear and produce documents issued to it at Mr Boyle’s request.
BACKGROUND
For the purpose of this part of the proceeding only, I make the findings of fact set out in the following paragraphs. They are based on the material in the file, the statements made at the directions hearings and the affidavit of Mr George Micheal Livaditis sworn on 8 April 2005.
The summons issued to CSS was returnable on 14 February 2005. Before that and on 7 February 2005, CSS’s solicitors wrote to Mr Boyle’s solicitors. Before commenting on the eight categories of documents sought by Mr Boyle, they wrote:
“Our client intends to do its utmost in the circumstances to produce and comply with the summons. However as has been previously written and attested to, our client does not have many of the documents that you have summoned. Any of the documents that you seek which maybe in our client’s possession will be collated, however, the amount of such paperwork amounts to many hours of collation and the retrieval will amount to thousands of dollars of administrative time. Taking into account your client’s parlous financial state, our client is not in the position to supply such documentation until an amount of $3,000.00 is placed in our trust account and after whatever work is done, an account will be rendered. In the alternative we will accept a written undertaking from your firm to pay our costs within 7 days of rendering our invoice.”
In relation to three of the categories of documents, CSS’s solicitors wrote: “Please advise what is the forensic purpose of seeking these documents.”
They copied the letter to the Tribunal on 10 February 2005 advising that their client was not then in a position to produce the documents and stating their belief that it was an abuse of process. CSS did not appear at the return of summons hearing on 14 February 2005. At that hearing, I directed Mr Boyle to file and serve a statement setting out the relevance of the documents summonsed from various entities, including CSS, and not yet lodged. On 15 March 2005, he lodged a document giving some detail of his claim that the assessments were excessive and the need to obtain all of the documents he had summonsed.
CSS was required to attend the resumed hearing held on 8 April 2005 and they did so by their solicitor, Mr Livaditis. Mr Livaditis swore an affidavit as to the previous correspondence between CSS and Mr Boyle. Neither then nor since has Mr Boyle paid, or offered to pay, CSS’s costs. He had not advised of the forensic purpose for which the documents were sought.
CSS is involved in proceedings in the Supreme Court to which Collins Consolidated Industries Pty Ltd and Mr Boyle are parties. They were commenced in 2001. Orders for discovery have been made by the Listing Master in relation to those proceeding. CSS had obtained documents from Perth to enable Mr Boyle to inspect them. Despite CSS’s solicitors making numerous requests to inspect the documents, Mr Livaditis said, Mr Boyle had not done so.
At the resumption of the return of summons hearing, I set aside the summons addressed to CSS. I did so on the basis that CSS had already given Mr Boyle a large amount of material and he was unable to identify any material that he had sought and had not received. Furthermore, despite the document he lodged on 15 March 2005, he had not given sufficient detail to link the material sought in the summons with the issues raised by his application to review the Commissioner’s objection decision.
Mr Livaditis asked for costs in the sum of $750 on the basis that the summons had been dismissed. Mr Livaditis and Mr Gaylard, solicitor for Mr Boyle, were given an opportunity to make written submissions regarding the Tribunal’s power to make an order for costs or to order that CSS’s expenses could be reimbursed.
LEGISLATIVE FRAMEWORK
Summonses
For the purposes of the hearing of a proceeding,[1] the member presiding at a hearing, the Registrar, a District Registrar or a Deputy Registrar may summon a person to appear before the Tribunal at that hearing:
“(a) to give evidence; or
(b)to give evidence and produce any books, documents or things in the possession, custody or control of the person or persons named in the summons that are mentioned in the summons; or
(c)to produce any books, documents or things in the possession, custody or control of the person or persons named in the summons that are mentioned in the summons.”[2]
Where only books, documents or things are required for production, regard should be had to s. 40(1E) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”):
“A person named in a summons for production of a book, document or thing may produce the book, document or thing at the Registry where the summons was issued before the date specified in the summons and, unless the Tribunal otherwise directs, is not required to attend the hearing concerned unless the person is also required to give evidence at the hearing concerned.”
[1] If the summons relates only to the production of books, documents or things, a person may be required to appear at a directions hearing instead of a hearing: AAT Act, s. 40(1B).
[2] Administrative Appeals Tribunal Act 1975 (“AAT Act”), s. 40(1A)
The summons was issued and Mr Livaditis’s application for costs made before the AAT Act was amended by the Administrative Appeals Tribunal Amendment Act 2005 (“Amendment Act”). Section 67 was amended with effect from 16 May 2005[3] but does not apply in relation to a summons issued after the commencement of the amendment.[4] Consequently, the amendments do not affect the outcome of this matter.[5] In its previous form, s. 67 provided that a person:
“… summoned to appear as a witness before the Tribunal is entitled to be paid fees, and allowances for expenses, … in respect of his or her attendance.”[6]
The fees and allowances are “fixed by or in accordance with the regulations”.[7] Although the Tribunal has a discretion to order that the fees and allowances shall be paid, wholly or partly, by the Commonwealth,[8] the general position is that, if the witness was summoned at the request of a party other than the decision-maker, that party pays them.[9] In its discretion, the Tribunal may order that the witness’s fees and allowances are paid by the Commonwealth.[10] If the party at whose request the summons is issued is the decision-maker, the Commonwealth pays them.[11] The Commonwealth also pays them if the person is summoned at the request of another such as the Tribunal.[12]
[3] Amendment Act, Schedule s. 3 and Schedule 1, cll. 192-196
[4]Amendment Act, Schedule s. 3 and Schedule 1, cl. 197
[5] Since its amendment, s. 67 is no longer confined to “a person summoned to appear as a witness”. It now applies to a “person summoned under this Act”.
[6] AAT Act, s. 67(1). Since its amendment, s. 67 refers to “A person summoned under this Act …” rather than to a “A person summoned to appear as a witness …” and to fees and allowances for expenses “… in respect of his or her compliance with the summons” rather than “in respect of his or her attendance”: AAT Amendment Act, s. 3, Schedule 1, cll. 192 and 193
[7] AAT Act, s. 67(1)
[8] AAT Act, s. 67(3)
[9] AAT Act, s. 67(2)(a). Sections 67(2) and (3) have been amended by the Amendment Act to remove the reference to “witness” and substitute a reference to “person”: Amendment Act, s. 3, Schedule 1, cll. 194-196
[10] AAT Act, s. 67(3)
[11] AAT Act, s. 67(2)(b)
[12] AAT Act, s. 67(2)(b)
The amount of the fees that the person is entitled to be paid is fixed by or in accordance with the Administrative Appeals Tribunal Regulations 1976 (“Regulations”).[13] Regulation 16 provides that:
[13] AAT Act, s. 67(1). The Regulations have not yet been amended to reflect the changes in s. 67 of the AAT Act. Consequently, they are focused solely on a person summoned to give evidence and make no allowance for fees and expenses incurred by a body corporate required to attend and produce books, documents or things to the Tribunal.
“A person summoned to appear as a witness before the Tribunal shall be paid such fees, and allowances for expenses, in respect of his attendance, in accordance with Schedule 2, as determined by the Tribunal or by a presidential member.”
Schedule 2 provides that:
“1. A person summoned to appear as a witness, because of his or her professional, scientific or other special skill or knowledge, before the Tribunal must be paid:
(a)if the person is remunerated in his or her occupation by wages, salary or fees — an amount equal to the amount of wages, salary or fees not paid to the person because of his or her attendance for that purpose; and
(b)in any other case — an amount of not less than $95, or more than $475, for each day on which he or she so attends.
2.A person summoned to appear as a witness, other than a witness referred to in item 1, before the Tribunal must be paid:
(a)if the person is remunerated in his or her occupation by wages, salary or fees — an amount equal to the amount of wages, salary or fees not paid to the person because of his or her attendance for that purpose; and
(b)in any other case — an amount of not less than $54, or more than $89, for each day on which he or she so attends.
3.A person summoned to appear as a witness before the Tribunal must be paid a reasonable amount for allowances for:
(a)transport between the usual place of residence of the person and the place that he or she attends for that purpose; and
(b)if he or she is required to be absent overnight from his or her usual place of residence — meals and accommodation.”
Costs
Section 69A of the AAT Act provides for the taxation of costs if:
“(a) the Tribunal has, under this Act or any other Act, ordered a party to the proceeding to pay to another party to the proceeding reasonable costs incurred by the other party; and
(b)the parties are unable to agree as to the amount of those costs;”[14]
[14] AAT Act, s. 69A(1)
Section 69B of the AAT Act provides that the Tribunal may, in certain circumstances,[15] order the Commonwealth to pay costs reasonably incurred by a person in connection with an application made under s. 54 of the Australian Security Intelligence Organisation Act 1979. The Tribunal’s power to order costs[16] is also found in the Safety, Rehabilitation and Compensation Act 1988,[17] the Seafarers’ Rehabilitation and Compensation Act 1992,[18] the Mutual Recognition Act 1992,[19] and the Lands Acquisition Act 1989.[20]
CONSIDERATION
[15] The applicant must be successful, or substantially successful, and the Tribunal must be satisfied that it is appropriate to make the order in all the circumstances of the case: AAT Act, ss. 69B(1)(b) and (c).
[16] The power to order costs is distinguished from the Tribunal’s power to recommend that costs be paid by the Commonwealth e.g. Freedom of Information Act 1982, s. 66.
[17] s. 67
[18] ss. 91 and 92
[19] s. 35
[20] s. 131
Form of summons issued to CSS
Although the issue I must consider is concerned with costs, I will detour for a moment to consider whether the summons was properly addressed to CSS rather than to a natural person in the sense of an officer or an employee of CSS. Section 40(1A) is expressed in terms of a summons’ being issued to a “person”. The Acts Interpretation Act 1901 (“AI Act”) provides that:
“In any Act, unless the contrary intention appears:
(a)expressions used to denote persons generally (such as ‘person’ …), include a body politic or corporate as well as an individual;”[21]
[21] AI Act, s. 22(1)
It seems to me that a contrary intention does appear in s. 40(1A)(a) and (b) and in the AAT Act generally when the summons is issued to a person to give evidence or to give evidence and to produce documents, books or things but not when the summons is issued simply to produce books, documents or things. I have reached that conclusion in this way. While a body corporate is a legal entity, it “… cannot be a witness in proceedings”.[22] Only persons such as their officers or employees can do so. This suggests that the “person” referred to in ss. 40(1A)(a) and (b) is a natural person. The suggestion is strengthened by the Tribunal’s power to require a person to take an oath or make an affirmation if that person appears to give evidence.[23] The person swears or affirms “… that the answers he or she will give to questions asked of him or her will be true.”[24] It is also strengthened by the reference points used in Schedule 2 of the Regulations to set fees and allowances. In so far as the calculation of allowances is concerned, a pivotal point of reference is the “place of residence”.[25] That is inappropriate for a body corporate or a body politic. So too is the reference in cll. 1 and 2 to “wages, salary or fees” paid to the person because of “his or her attendance”[26] or other amounts for each day on which “he or she so attends”.[27] The provision for allowances to be paid for overnight accommodation and meals leads to a similar conclusion. To some extent, r. 15 also supports the conclusion. It provides that:
“A summons under subsection 40(1A) of the Act:
(a)shall be in accordance with Form 7, 8 or 9, as the case requires; and
(b)shall be served on a person by:
(i)delivering a copy of the summons to the person personally; and
(ii)showing the original of the summons to the person at the time at which the copy is delivered to him.”
[22] Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 535 per Deane, Dawson and Gaudron JJ. See also Rochfort v Trade Practices Commission (1982) 153 CLR 134 at 153 per Mason J: “The production of documents by a corporation stands in a special position. In the past it seems to have been thought that a problem arose by reason of the corporation’s inability to give evidence. This problem can be avoided by serving a subpoena on the corporation itself, requiring it, by its proper officer, to give evidence and produce the documents.” His Honour referred to Penn-Texas Corporation v Murat Anstalt [No. 2] [1964] 2 QB 647 at 663 where Lord Denning MR had come to the same conclusion after noting that “It is no good serving a subpoena duces tecum [a subpoena to produce documents] on any of the officers or servants of the company: for each of them can say that he has no authority from the company to produce them, and that would be an end of any proceedings against him …”.
[23] AAT Act, s. 40(2)(a)
[24] AAT Act, s. 40(3)
[25] Regulations, Schedule 2, cl. 3
[26] Regulations, Schedule 2, cl. 1(a) and 2(a)
[27] Regulations, Schedule 2, cl. 1(b) and 2(b)
The position is somewhat different when the summons requires only the production of books, documents or things. It might be thought that the requirement that a copy of the summons be delivered to the person personally indicates that the person must be a natural person but I do not think that it necessarily does. Section 28A(1) of the AI Act provides that:
“For the purposes of any Act that requires or permits a document to be served on a person, whether the expression ‘serve’, ‘give’ or ‘send’ or any other expression is used, then, unless the contrary intention appears, the document may be served:
(a)on a natural person:
(i)by delivering it to the person personally; or
(ii)by leaving it at, or by sending it by pre-paid post to, the address of the place of residence or business of the person last known to the person serving the document; or
(b)on a body corporate – by leaving it at, or sending it by pre-paid post to, the head office, a registered office or a principal office of the body corporate.”
Certainly, the word “personally” is used in s. 28A(1) of the AI Act in relation to a natural person rather than the body corporate but that does not determine that the word, or a form of it, may not be used equally in relation to a body corporate. Indeed, a form of it, “personal” has been used in Order 7 of the Federal Court Rules. Order 7 Rule 2(1) provides for the way in which “personal service” may be effected on an individual or on a corporation as well as on an unincorporated association or an organisation. In each instance, the document is left with the individual or at the registered office or place of business of the body rather than being sent by post or some means of substituted service. Order 7 Rule 2(4) provides for “personal service on [a] company, etc”. It provides that, despite Order 7 Rule 2(1), “personal service” may be effected on a company defined in s. 9 of the Corporations Act 2001 in a way permitted by s. 109X of that legislation. Section 109X sets out a number of ways in which service may be effected on a company e.g. by leaving it at or posting it to its registered office or delivering a copy personally to a director residing in Australia. In view of the way in which the word “personally” is used and given that the word “person” may include a body corporate, it seems to me that the “personal service” required by r. 15 is a reference to leaving a copy of the summons at the registered office of the body corporate. It does not permit a document to be served by registered post or some other means of substituted service.
As I decide below that a summons to produce books, documents or things is not a summons to appear as a witness, the provisions relating to the payment of fees and allowances and the administration of oaths and affirmations are not relevant. They are directed only to those summonsed as witnesses to give evidence and not to those required to attend to produce books, documents or things. Their limited application does not detract from my concluding, as I do, that a summons to produce books, documents or things may be addressed to a body corporate as well as to a natural person.
The summons in this case was issued to CSS rather than to an individual either named or described by reference to an office or position held by that individual and that is appropriate in my view.
Does the Tribunal have power to order that CSS is entitled to be paid fees and allowances?
The Tribunal is a statutory body and its powers are circumscribed by the AAT Act or by other legislation giving it power. As a creation of statute,[28] it does not have inherent powers.[29] Therefore, if the Tribunal has power to order that a person summoned to appear and produce documents be paid fees and allowances, that power must be found either expressly, or by necessary implication, in the AAT Act or in other legislation.
[28] AAT Act, s. 5
[29] “The powers … were thus exhaustively provided for in the relevant statute as are the powers of the Administrative Appeals Tribunal in the Administrative Appeals Tribunal Act.” (Minister for Immigration and Ethnic Affairs v Gungor (1982) 42 ALR 209 (Fox, Fisher and Sheppard JJ) at 232 per Sheppard J)
CSS was summoned to appear and to produce documents.[30] It was not summoned to give evidence and to produce documents.[31] In an earlier case, Re A Taxpayer and Commissioner of Taxation,[32] I decided that a summons issued to a person to produce a book, document or thing and not to give evidence, was not a “person summoned to appear as a witness” within the meaning of s. 67 of the AAT Act, r. 16 or Schedule 2 of the Regulations. My reasoning was:
[30] The summons followed the Regulations, Schedule 2, Form 9 and see also r. 15.
[31] The summons would then have followed the Regulations, Schedule 2, Form 8 and see also r. 15.
[32] AAT 12219A, 16 October 1997
“10. May a person who is summoned to produce documents be described as a “person summoned to appear as a witness” as that word is used in regulation 16 and Schedule 2? A witness is, in general terms and putting aside expert witnesses,
‘... one who, being present, personally sees or perceives a thing; a beholder, spectator, or eyewitness. One who testifies to what he has seen, heard, or otherwise observed. ...’ (Black’s Law Dictionary, 5th edition, 1979)
11. A person who is summoned to appear and give evidence or to give evidence and produce documents would seem clearly to come within this description and so be a witness. Is a person who is summoned simply to appear and produce documents in a different position? This question was touched upon by Hutchison J in R v Gilmore [1961] NZLR 384. He was considering a subpoena duces tecum, which may require a person to both give evidence and produce specified documents. His Honour considered whether the person subpoenaed should be sworn, whether he could be questioned and, if so, to what extent. He said:
‘This man was called on the taking of the depositions in the lower court, and he then declined to answer any questions upon the ground that the answers might incriminate him. That, as it seems to me, on s15 of the Secret Commissions Act 1910, would not be a good ground for refusing to answer but the Crown does not invoke that section, and is prepared to ask him no questions. Mr Birks proposes then that this man - I do not call him a witness, because he is not necessarily a witness - be not sworn. Counsel does not wish to ask him any questions. All counsel wishes is that, under the subpoena duces tecum, he should lay the documents on the table, where, according to counsel, they will be later identified and made evidence by other witnesses.
Mr O’Brien says that the evidence of the gentleman would be at the very heart and centre of the charges that are numbered 3 to 9 inclusive, and that the accused would be prejudiced if he cannot be cross-examined on these documents. But I am referred to the statement in Phipson on Evidence, 9th ed., 484 that a witness called merely for the purpose of producing a document need not be sworn, and to Perry v Gibson (1834) 1 Ad. and E 48; 110 E.R. 1125, the case cited as authority for that statement. That case is before me now and it seems amply to be authority for the statement. It is a decision a long time ago of the Court of Appeal in England, and is, as I say, cited in the last edition of Phipson as authoritative. The only thing that one might say is that Perry v Gibson (supra) appears to have been a civil case and not a criminal one, but I do not think that that can differentiate this case from it.
The question really comes back to this, I think, whether the accused in a criminal trial can compel the Crown to call a witness. The answer to that in general is that the accused cannot compel the Crown to call a witness, and, if the accused thinks that the evidence of the witness is of sufficient importance, the accused may call him. I am unable to support Mr O’Brien’s contention, and I must rule the course proposed by the learned Crown prosecutor may be followed.’ (page 384)
12. It would seem to be clear from this passage that a person who is served with a subpoena duces tecum can be generally described as a person summoned to appear as a witness. That this is an accurate description accords also with the judgement of Beaumont J in Trade Practices Commission v Arnotts Limited and Others (1989) 88 ALR 90. It would also seem, however, that a person who is served with a subpoena duces tecum need only produce the documents and need not be called as a witness. Whether he or she is called as a witness will depend upon whether the party who caused the subpoena to be issued and served wishes to call him or her and also upon whether the person served objects to the production of the documents and gives evidence in support of the objection.
13. If a person may satisfy a subpoena duces tecum by simply producing the documents without necessarily being called as a witness, it would follow that a person who is served with a summons to appear before the Tribunal to produce documents may equally satisfy that summons by appearing and producing without being called as a witness. That this is so is underlined by the provisions of sub-section 40(1E) which effectively gives the person summoned an opportunity to fulfil his or her obligations by delivering the documents to the tribunal before the hearings. There are two exceptions to the concessions made by sub-section 40(1E). The first is that the Tribunal has directed otherwise. It could do that if, for example, it wished to inquire as to whether all of the documents had been produced. The second exception is that the person is also required by the summons to give evidence. That does not apply to a person served with a summons to produce documents. A third exception is not spelled out in sub-section 40(1E) but applies, of course, in the situation in which the person served with the summons wishes to object. It would seem to follow from these provisions that a person served with a summons to produce documents is not summoned to appear as a witness although he or she may become a witness.
14. Section 61 of the AAT Act supports this conclusion. It is headed ‘Failure of witness to attend’ and provides:
‘(1) A person served, as prescribed, with a summons to appear as a witness before the Tribunal shall not, without reasonable excuse:
(a)fail to attend as required by the summons; or
(b)fail to appear and report himself from day to day unless excused, or released from further attendance, by a member.
Penalty: $1,000 or imprisonment for 3 months.
(2)A person served, as prescribed, with a summons under this Act to produce a book, document or thing must not, without reasonable excuse, fail to comply with the summons.’
In separating a summons to produce documents from a summons to appear as a witness, it seems that a distinction is drawn between summonses to appear to give evidence and summonses to give evidence and produce documents on the one hand and summonses to produce documents on the other. There can be no question that summonses to give evidence, whether or not the person must also produce documents, are summonses to appear as a witness. In terms of section 61, a summons to produce documents is not a summons to appear as a witness. That is consistent with the position in the general law as I have found it to be.”
I adopt these reasons in this case. CSS is not a “person summoned to appear as a witness before the Tribunal” within the meaning of s. 67 and so is not entitled to be paid fees and allowances for expenses calculated in accordance with r. 16.
Does the Tribunal have power to order that CSS is entitled to be paid costs?
Fees and allowances are quite different from the costs sought by Mr Livaditis. Allowances are intended to ensure that the witness is not out of pocket in meeting expenses incurred as a result of answering the summons and attending the hearing. Fees ensure that the witness receive some, or in some cases, total recompense for their time. Costs go beyond fees and allowances. In the Federal Court, they would extend, in general terms, to “… all such costs charges and expenses as appear … to have been necessary or proper for the attainment of justice or for maintaining or defending the rights of a party …”.[33] Arguably, the Tribunal’s power to award costs would extend to similar matters[34] but I do not need to decide the matter. Like its powers to award fees and allowances, its powers to order costs are limited to those provided by statute. The AAT Act does not give it any power to make an order for costs in relation to a summons or to an application for review of an objection decision. The other relevant legislation impinging on the review of an objection decision[35] does not give it any power, either expressly or implicitly.
[33] Federal Court Rules, Order 62 Rule 18
[34] see generally, the discussion in Re Toomer and Department of Primary Industries and Energy (1991) 22 ALD 164
[35] Income Tax Assessment Act 1936 and Taxation Administration Act 1953
For the reasons I have given, I have decided that I do not have power to make an order with respect to the costs, fees and expenses incurred by Controlled Sprinkler Supplies Pty Ltd.
I certify that the twenty-four preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: ...............................................................
Nathaniel Wills Associate
Date of Hearing 8 April 2005
Date of Decision 20 June 2005
Solicitor for the Applicant Mr M. Gaylard
Tolhurst Druce and Emmerson Lawyers
Solicitor for the Respondent Mr V. Tavolaro
Australian Government Solicitor
3
0