Carbery v Fire Rescue Victoria

Case [2025] FCA 948

FEDERAL COURT OF AUSTRALIA

Carbery v Fire Rescue Victoria [2025] FCA 948  

File number(s): VID 249 of 2025
Judgment of: MCELWAINE J
Date of judgment: 14 August 2025
Catchwords:

TAXATION – calculation of Reportable Fringe Benefit Amounts – applicant claims declaratory relief that employer incorrectly calculated and reported employee fringe benefits on reimbursed insurance premiums

PRACTICE AND PROCEDURE – respondent applies to dismiss proceeding for want of justiciable controversy – whether there is a justiciable controversy and therefore a matter within federal jurisdiction where respondent contends after commencement of the proceeding that its interests align with those of applicant – whether the requirement that there be a contradictor is met – held justiciable controversy is identifiable from the whole history of conduct between the parties – change of position by the respondent does not extinguish the controversy –
respondent’s application dismissed

Legislation:

Federal Court of Australia Act 1976 (Cth) s 31A(2)

Fringe Benefits Tax Assessment Act 1986 (Cth)

A New Tax System (Family Assistance) (Administration) Act 1999 (Cth)

Child Support (Registration And Collection) Act 1988 (Cth)

Administrative Review Tribunal Act 2024 (Cth)

Taxation Administration Act 1953 (Cth)

Federal Court Rules 2011 (Cth) rr 13.01(1)(a), 26.02
Cases cited:

Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 68 FCR 406

Australian Competition and Consumer Commission v MSY Technology Pty Ltd [2012] FCAFC 56; (2012) 201 FCR 378

AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26; (2023) 278 CLR 512

BMI Ltd v Federated Clerks’ Union of Australia (NSW Branch) (1983) 6 IR 416

Clarence City Council v The Commonwealth [2019] FCA 1568

Clarence City Council v TheCommonwealth [2020] FCAFC 134; (2020) 280 FCR 265

CTC Resources NL v Commissioner of Taxation (1994) 48 FCR 397

Edwards v Santos Ltd [2011] HCA 8; (2011) 242 CLR 421

Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421

Hobart International Airport Pty Ltd v Clarence City Council [2022] HCA 5; (2022) 276 CLR 519

IMF Australia Ltd v Sons of Gwalia Ltd (administrator appointed) [2004] FCA 1390; (2004) 211 ALR 231

Oil BasinsLtd v Commonwealth [1993] HCA 63; (1993) 178 CLR 643

Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438

Unions NSW v New South Wales [2023] HCA 4; (2023) 277 CLR 627

United Firefighters’ Union of Australia v Fire Rescue Victoria [2025] FWCFB 54 Federal Commissioner of Taxation v Futuris Corporation Ltd [2008] HCA 32; (2008) 237 CLR 146

Zurich Australian Insurance Ltd v CIMIC Group Ltd [2024] NSWCA 229; (2024) 115 NSWLR 297
Division: General Division
Registry: Victoria
National Practice Area: Taxation
Number of paragraphs: 68
Date of hearing: 4 August 2025
Counsel for the Applicant: Mr R Garratt KC with Mr A Germano
Solicitor for the Applicant: Sigma Law
Counsel for the Respondent: Mr A de Wijn SC with Mr J Patela
Solicitor for the Respondent: Lander & Rogers

ORDERS

Continue reading Carbery v Fire Rescue Victoria

Sign in free to access the full text

Details
AGLC
Carbery v Fire Rescue Victoria [2025] FCA 948
Case
[2025] FCA 948
Decision Date

CaseChat Overview and Summary

Carbery v Fire Rescue Victoria involves an applicant who sought a declaration that the respondent, his former employer, had incorrectly calculated and reported the Reportable Fringe Benefit Amounts in relation to reimbursed insurance premiums. The Federal Court was tasked with determining whether the employer's actions constituted a taxable fringe benefit and whether the employer had correctly reported these benefits. The applicant sought declaratory relief to rectify what he argued was an incorrect calculation and reporting by the employer.

The legal issues before the Court included whether there was a justiciable controversy, given the respondent's contention that its interests aligned with those of the applicant after the proceeding commenced. The respondent also applied to dismiss the proceeding for want of a justiciable controversy, arguing that the requirement for a contradictor was not met. The Court considered whether the respondent's change of position extinguished the controversy or if it remained identifiable based on the history of conduct between the parties.

The Court found that a justiciable controversy was identifiable from the whole history of conduct between the parties. The change of position by the respondent did not extinguish the controversy, and thus the requirement for a contradictor was met. Consequently, the respondent's application to dismiss the proceeding was dismissed, and the proceeding was adjourned for case management. The Court's decision was based on the premise that a justiciable controversy existed and could be resolved within the federal jurisdiction, ensuring that the matter would proceed to determine the substantive issues of taxation and fringe benefit reporting.

The Court made specific orders dismissing the respondent's interlocutory application and scheduling the proceeding for case management. The entry of these orders was governed by Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The interlocutory application of the respondent dated 8 April 2025 is dismissed.

2. The proceeding is adjourned for case management to 10.15 am on 17 October 2025.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.