Daley v Commissioner of Taxation

[2003] FCA 776

FEDERAL COURT OF AUSTRALIA

Daley v Commissioner of Taxation [2003] FCA 776

IAN DALEY v COMMISSIONER OF TAXATION
Q17 OF 2003

KIEFEL J
BRISBANE
23 JULY 2003

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q17 OF 2003

BETWEEN:	IAN DALEY APPLICANT
AND:	COMMISSIONER OF TAXATION RESPONDENT
JUDGE:	KIEFEL J
DATE OF ORDER:	23 JULY 2003
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.        Each party bear their own costs up to 16 July 2003.

2.Thereafter, the applicant is to pay the respondent’s costs of the application to be taxed on an indemnity basis.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q17 OF 2003

BETWEEN:	IAN DALEY APPLICANT
AND:	COMMISSIONER OF TAXATION RESPONDENT

JUDGE:	KIEFEL J
DATE:	23 JULY 2003
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. Much of the bases for the views which I shall very shortly express will appear in the exchanges with counsel recorded in the transcript. 

2. It is not clear to me that the applicant was entitled to a statement of reasons, but I put that to one side, because the matter was not sought to be determined by the Commissioner.  I shall proceed upon the basis that there was such an entitlement.  The larger question, though, in relation to costs, is whether or not the court would have ordered them to be provided, so that the applicant could see whether the s 264 notice had been given bona fide, which seems to have been the motivation for the bringing of these proceedings.  There is no evidence from which one could conclude that there was a basis for that view.  It has not been shown that there was any real basis for assuming improper motive.  I do not think a court would have granted the statement of reasons, given in particular that the events relating to them had passed and the notice was, in effect, spent. 

3. Nevertheless, the Commission did provide a statement of reasons and offered to pay party and party costs up to the provision of that statement on 13 June.  That offer of 16 July 2003 was refused.  I am not impressed by the applicant’s motives in pursuing indemnity costs beyond that point, especially since the offer seems to me to have been a generous one, given the doubts which I have expressed about whether relief would have been given by the Court on its application.  It therefore seems appropriate to me to order that each party bear their own costs up to 16 July 2003, thereafter, the applicant is to pay the respondent’s costs of an incidental to the application.  Those costs will be on an indemnity basis.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.

Associate:

Dated:            14 August 2003

Counsel for the Applicant:	Mr M Roberts
Solicitor for the Applicant:	Bickfords Lawyers
Counsel for the Respondent:	Mr M Belcher
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	23 July 2003
Date of Judgment:	23 July 2003