Deputy Commissioner of Taxation v Debaugy
[2012] FMCA 451
•11 June 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DEPUTY COMMISSIONER OF TAXATION v DEBAUGY | [2012] FMCA 451 |
| BANKRUPTCY – Lawyers – right of appearance for ATO legal officers – entitlement to recover professional costs. LAWYERS – Right of appearance for ATO legal officers – bankruptcy proceedings – professional costs. TAXATION – Lawyers – right of appearance for ATO legal officers – bankruptcy proceedings. |
| Bankruptcy Act 1966 (Cth) Corporations Act 2001 (Cth) Fair Work Act 2009 (Cth), s.548(5) Family Law Act 1975 (Cth) Federal Court of Australia Act 1976 (Cth), s.43 Federal Court Rules, O.62, Schedule 2 Items 36, 43B Federal Magistrates Court (Bankruptcy) Rules 2005 (Cth), rr.4.02(1), 13.01(1), 13.03(1) Federal Magistrates Act 1999 (Cth), ss.3(2)(a) and (b), 8(1), 44, 104(2) and (3) Financial Management Act 1997 (Cth), ss.5, 44, 64 Financial Management and Accountability Regulations 1997 (Cth), Schedule 1, Item 127 Judiciary Act 1903 (Cth), ss.55A, 55B, 55C, 78, Part VIIIA Legal Profession Act 2008 (WA), ss.3, 4(a), 79(1) Legal Profession Act 2007 (Qld), ss.44(2), 68(2), 74 Taxation Administration Act 1953 (Cth), ss.4A(2), 15(1) and (2) Taxation Laws Amendment Act 1984 (Cth), s.313 Taxation Laws Amendment Bill 1984 (Cth), Explanatory Memorandum |
| Bunnag v Minister for Immigration & Anor (No.2) [2008] FMCA 430 Cachia v Hanes & Anor (1994) 179 CLR 403 Cannon Street Pty Ltd & Ors v Karedis & Ors (2007) 226 FLR 273; [2007] QCA 541 Commonwealth Bank of Australia v Hattersley (2001) 51 NSWLR 333; [2001] NSWSC 60 Conlan v Mladenis [2007] FCA 1129 De Pardo v Legal Practitioners Complaints Committee & Anor (2000) 97 FCR 575; [2000] FCA 335 Deputy Commissioner of Taxation v Clear Blue Developments Pty Ltd (No. 2) (2010) 190 FCR 11; [2010] FCA 1224 Deputy Commissioner of Taxation v Croftworth Property Holdings(No. 2) Pty Ltd (No.2) [2011] FCA 373 Deputy Commissioner of Taxation v Jaskola (2011) 8 ABC(NS) 603; [2011] FMCA 67 Deputy Commissioner of Taxation v Oxenford Corporation Pty Ltd [2011] FCA 96 Deputy Commissioner of Taxation v Solway [2010] QDC 336 Dickinson v The Motor Vehicle Insurance Trust (1987) 163 CLR 500 Government Insurance Office of New South Wales v RJ Green & Lloyd Pty Ltd (1966) 114 CLR 437 House v The King (1936) 55 CLR 499 Kavanagh v The Commonwealth (1960) 103 CLR 547 Ly & Anor v Jenkins & Ors (2001) 114 FCR 237; [2001] FCA 1640 Maurice Blackburn Cashman v Grizonic & Anor (No. 2) [2006] FMCA 644 O'Meara v Hitwise Pty Ltd & Anor (2007) 160 FCR 518; [2007] FCAFC 114 Pacific Exchange Corporation Pty Ltd v Federal Commissioner of Taxation (2009) 180 FCR 300; [2009] FCA 1155 Pattison v Hadjimouratis (2006) 155 FCR 226; [2006] FCAFC 153 Re Skase; Ex parte Donnelly (1992) 37 FCR 509 Schokker v Federal Commissioner of Taxation (1998) 38 ATR 91 Transport Accident Commission v Treloar [1992] 1 VR 447 University of Western Australia v Gray & Ors (No. 25) (2009) 180 FCR 483; [2009] FCA 1227 |
| Enid Russell, A History of the Law in Western Australia and its Development from 1829 to 1979 (Nedlands: University of Western Australia Press, 1980) S. Welborn, Sandgropers Solicitors & Silks (Nedlands: University of Western Australia Press, 1998) |
| Applicant: | DEPUTY COMMISSIONER OF TAXATION |
| Respondent: | MICHAEL HENRY DEBAUGY |
| File Number: | PEG 63 of 2011 |
| Judgment of: | Lucev FM |
| Hearing date: | 16 May 2011 |
| Date of Last Submission: | 16 May 2011 |
| Delivered at: | Perth |
| Delivered on: | 11 June 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr L A Tsaknis |
| Solicitors for the Applicant: | Australian Government Solicitor |
| For the Respondent: | No appearance |
ORDERS
That Order 2 of the Orders of Registrar Jan of 1 March 2011 be set aside.
That the Respondent pay the Applicant Creditor’s costs of the sequestration order application before Registrar Jan in the sum of $4068.90, to be paid out of the estate of the Respondent in accordance with the Bankruptcy Act 1966 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 63 of 2011
| DEPUTY COMMISSIONER OF TAXATION |
Applicant
And
| MICHAEL HENRY DEBAUGY |
Respondent
REASONS FOR JUDGMENT
Application
On 1 March 2011 a Registrar of this Court refused an application by the Deputy Commissioner of Taxation[1] for the Deputy Commissioner’s alleged professional costs in relation to the issuance of a sequestration order against the respondent, Michael Henry Debaugy.[2]
[1] “Deputy Commissioner”.
[2] “Mr Debaugy”.
The Deputy Commissioner now seeks to review the decision of the Registrar.[3]
[3] Federal Magistrates Act 1999 (Cth), s.104(2) (“FM Act”).
The Deputy Commissioner seeks orders that:
a)the Registrar’s order, which fixed the Deputy Commissioner’s costs at $1434, being the sum of the Deputy Commissioner’s disbursements, be set aside; and
b)in lieu of the Registrar’s order there be an order that the respondent pay the Deputy Commissioner’s costs fixed in the sum of $4068.90.
The nature of the power of review of a Registrar’s decision
On an application for a review of a Registrar’s decision, the Court:
a)is engaged in a fresh proceeding;
b)does not scrutinise the original reasons to ascertain error; and
c)makes its own decision on the merits of the case.[4]
[4] Pattison v Hadjimouratis (2006) 155 FCR 226 at 235 per Jacobson J and 251-252 per Lander J; [2006] FCAFC 153 at para.43 per Jacobson J and para.156 per Lander J (“Hadjimouratis”); O'Meara v Hitwise Pty Ltd & Anor (2007) 160 FCR 518 at 521 per Kiefel, Sundberg and Gyles JJ; [2007] FCAFC 114 at para.9 per Kiefel, Sundberg and Gyles JJ; Deputy Commissioner of Taxation v Jaskola (2011) 8 ABC(NS) 603 at 606 per Lucev FM; [2011] FMCA 67 at para.8 per Lucev FM.
Under s.104(3) of the FM Act the Court “may make any order or orders it thinks fit in relation to the matter in respect of which the power was exercised” by the Registrar.
The exercise of the power of review by this Court is unhindered by any necessity to demonstrate that the Registrar erred, or that the Registrar’s discretion miscarried in a House v The King[5] sense.[6] This Court therefore exercises its discretion on the material unaffected by the Registrar’s exercise of discretion.[7]
[5] (1936) 55 CLR 499.
[6] Hadjimouratis FCR at 251 per Lander J; FCAFC at paras.153-154 per Lander J.
[7] Conlan v Mladenis [2007] FCA 1129 at para.5 per Sundberg J.
Relevant background facts
The Deputy Commissioner filed a creditors petition on 18 January 2011. The creditors petition:
a)identified the Deputy Commissioner as applicant;
b)stated that it was filed on behalf of the Deputy Commissioner;
c)was signed as follows:
Bronwyn Simmonds, Solicitor for the Applicant
Per: Joanne Ding
A solicitor employed in the same organisation as the solicitor on the record
d)contained the following details with respect to filing:
Filed by
Name:Australian Taxation Office, Legal Services Branch
Address for service: Australian Taxation Office, Legal Services Branch
45 Francis Street
Northbridge WA 6003Telephone: (08) 9268 5393 Fax number: (08) 9268 5036
E-mail address:
Ref:Joanne Ding, A solicitor in the same organisation as the solicitor on the record
In the creditors petition both:
a)Bronwyn Jean Simmonds,[8] said to be the solicitor on the record; and
b)Joanne Sue May Ding,[9] said to be a solicitor employed in the same organisation as the solicitor on the record,
are each designated as a solicitor.
[8] “Ms Simmonds”.
[9] “Ms Ding”.
On 15 February 2011 Ms Ding wrote to Mr Debaugy and informed him that she intended to make an application for the costs of the creditors petition in accordance with an attached Short Form Bill of Costs. The footer to the Short Form Bill of Costs included the name of Ms Simmonds as “Solicitor for the Plaintiff”.[10]
[10] Affidavit of Ms Ding in Support of Costs Application, sworn 25 February 2011, paras.2 and 3 and Annexure A. Nothing turns on the use of “Plaintiff” instead of “Applicant”.
On 1 March 2011 Ms Ding sought, and was granted, leave to appear for the Deputy Commissioner before a Registrar of this Court in the present matter. There was no appearance by or for Mr Debaugy.[11] A sequestration order was made by the Registrar. An oral application for costs and disbursements, including professional costs, was made by the Deputy Commissioner.[12] The Registrar refused to award the Deputy Commissioner’s alleged professional costs “because the matter was conducted in person”.[13]
[11] Affidavit of Ms Ding, sworn 5 May 2011, paras.4-6 (“Ms Ding’s May 2011 Affidavit”).
[12] Ms Ding’s May 2011 Affidavit, para.7.
[13] Ms Ding’s May 2011 Affidavit, para.8.
On the evidence, it would appear that since at least March 2001 persons employed in the ATO and appearing for the Deputy Commissioner in bankruptcy proceedings in a federal court in Western Australia have been required by the District Registrar of the Federal Court and Registrars of this Court to seek leave to appear , purportedly under s.15 of the Taxation Administration Act, 1953 (Cth).[14]
[14] “TA Act”. Affidavit of Tracey Maree Kelly, sworn 4 May 2011, paras.4-7; Ms Ding’s May 2011 Affidavit, para.2.
Ms Ding was at all material times admitted to practise as a solicitor of the Supreme Court of Western Australia. Her name had been entered in, and her name was at all material times in, the Register of Practitioners kept at the Registry of the High Court of Australia.[15]
[15] Affidavit of Ms Ding, sworn 22 March 2011, paras.6-8 (“Ms Ding’s March 2011 Affidavit”). Section 55C(1) of the Judiciary Act 1903 (Cth) (“Judiciary Act”) provides for the Chief Executive and Principal Registrar of the High Court of Australia to cause a Register of Practitioners (“High Court Register of Practitioners”) to be kept at the Registry of the High Court of Australia.
Ms Simmonds was at all material times admitted to practise as a solicitor of the Supreme Court of Victoria. Her name had been entered in, and her name was at all material times in, the High Court Register of Practitioners.[16]
[16] Affidavit of Ms Simmonds, sworn 22 March 2011, paras.5-6 (“Ms Simmonds’ March 2011 Affidavit”).
Both Ms Simmonds and Ms Ding are employed by the Australian Taxation Office.[17] The ATO is a “government agency of another jurisdiction”, namely the Commonwealth of Australia,[18] as defined in s.79(1) of the Legal Profession Act 2008 (WA).[19]
[17] “ATO”. Ms Simmonds’ March 2011 Affidavit, para.1; Ms Ding’s March 2011 Affidavit, para.1.
[18] TA Act 1953 (Cth), s.4A(2) (Commissioner and APS employees assisting the Commissioner together constitute a Statutory Agency).
[19] “LP Act (WA)”.
The ATO is a prescribed agency under the Financial Management Act 1997 (Cth).[20] The Legal Services Directions 2005 issued by the Commonwealth Attorney-General[21] under s.64 of the Financial Management Act provide that a prescribed agency may only use an in-house lawyer to conduct litigation as solicitor on the record, or as Counsel, with the consent of the Attorney-General.[22] The Attorney-General provided the relevant consent to enable the Deputy Commissioner to use in-house ATO lawyers to conduct uncontested and routine debt proceedings, including bankruptcies, for the period 16 November 2009 to 30 June 2011.[23] The Deputy Commissioner was entitled, under the Legal Services Directions 2005 and the Financial Management Act and Financial Management Regulations, to use an in-house lawyer as solicitor on the record and Counsel in bankruptcy proceedings in this Court.
[20] “Financial Management Act”. Financial Management Act, s.5; Financial Management and Accountability Regulations 1997 (Cth) (“Financial Management Regulations”), Schedule 1, Item 127.
[21] “Attorney-General”.
[22] Legal Services Directions 2005, Direction 5.1.
[23] Ms Simmonds March 2011 Affidavit, paras.3-4 and Annexures A and B.
Costs in bankruptcy proceedings
The position with respect to costs in proceedings under the Bankruptcy Act 1966 (Cth)[24] in this Court was summarised in Maurice Blackburn Cashman v Grizonic & Anor (No. 2)[25] where the Court said:
The Court has a general power to order the payment of costs pursuant to s 79 of the Federal Magistrates Court Act 1999. Section 32 of the Bankruptcy Act 1966 provides that the Court "may, in any proceeding before it ... make such order as to costs as it thinks fit". Thus the award of costs is in the discretion of the Court. Under the Federal Magistrates Court Rules (see Rule 29.08 of the Federal Magistrates Court Rules 2001 and now Rule 13.01(1) of the Federal Magistrates Court (Bankruptcy) Rules 2006), unless the Court otherwise orders, a person who is entitled to costs in a proceedings to which the Bankruptcy Act 1966 applies is entitled to costs in accordance with Order 62 of the Federal Court Rules. Rule 21.04 of the Federal Magistrates Court Rules 2001 and Order 62 Rule 15 of the Federal Court Rules both provide that when costs are reserved, those costs follow the event, unless the Court otherwise orders.[26]
[24] “Bankruptcy Act”.
[25] [2006] FMCA 644 (“Grizonic”).
[26] Grizonic at para.26 per Barnes FM.
An order for costs ordinarily refers to professional legal costs actually incurred in the conduct of the litigation.[27] Usually, costs follow the event, and a successful litigant receives costs unless there are special circumstances justifying some other order.[28] Where lawyers are employees of the Crown or of a statutory body or corporation, costs are generally awarded and taxed on the same basis as non-government lawyers exercising comparable skills in the performance of comparable work.[29] The bill of costs is treated as if it were the bill of an independent (non-government) lawyer.[30]
[27] Cachia v Hanes & Anor (1994) 179 CLR 403 at 410-411 per Mason CJ, Brennan, Dawson, Deane and McHugh JJ; Ly & Anor v Jenkins & Ors (2001) 114 FCR 237 at 280 per Kiefel J; [2001] FCA 1640 at para.159 per Kiefel J (“Jenkins”); Bunnag v Minister for Immigration & Anor (No. 2) [2008] FMCA 430 at para.49 per Lucev FM (and cases there cited).
[28] Re Skase; Ex parte Donnelly (1992) 37 FCR 509 at 522 per Drummond J.
[29] Commonwealth Bank of Australia v Hattersley (2001) 51 NSWLR 333 at 339 per Davies J; [2001] NSWSC 60 at para.21 per Davies J; Jenkins FCR at 280 per Kiefel J; FCA at para.160 per Kiefel J.
[30] Jenkins FCR at 280 per Kiefel J; FCA at para.160 per Kiefel J.
At the relevant times, r.13.01(1) of the Federal Magistrates Court (Bankruptcy) Rules 2005 (Cth)[31] provided that a person was entitled to costs in a proceeding to which the Bankruptcy Act applies in accordance with O.62 of the then Federal Court Rules,[32] unless the Court otherwise ordered. Rule 13.03(1) of the FMC Bankruptcy Rules, to which r.13.01(1) of the FMC Bankruptcy Rules is subject, then provided that if, as happened here, the Court makes a sequestration order against a debtor’s estate, a lawyer may charge for costs the amount stated in Item 43B of Schedule 2 to the then FC Rules applying on the date when the petition was presented. The amount at the relevant time for an applicant for a sequestration order for professional costs was $2294.
[31] “FMC Bankruptcy Rules”.
[32] “FC Rules”.
The Deputy Commissioner claims $2294 for the sequestration order application hearing in this matter, plus:
a)under Item 36 of Schedule 2 to the then FC Rules, $340 for the costs of an adjourned hearing on 15 February 2011; and
b)disbursements of $1434.90,[33] being the amount awarded by the Registrar.
The total amount of costs claimed by the Deputy Commissioner is $4068.90.[34]
Entitlement to appear
[33] Ms Ding’s March 2011 Affidavit, Annexure A.
[34] Ms Ding’s May 2011 Affidavit, para.7.
Judiciary Act
Sections 55A, 55B, 55C, and 78 of the Judiciary Act provides as follows:
55A. A person who has been admitted to practise as a barrister or solicitor, or as both, under rules made in pursuance of paragraph (ga) of section 86 of this Act is, subject to those rules, entitled to practise in any federal court as a barrister or solicitor, or as both, as the case may be.
55B. (1) Subject to this section, a person who:
(a) is for the time being entitled to practise as a barrister or solicitor, or as both, in the Supreme Court of a State; or
(b) …
has the like entitlement to practise in any federal court.
(2) …
(3) A person is not entitled to practise as a barrister or solicitor in a federal court by reason of subsection (1) unless his or her name appears in the Register of Practitioners kept in accordance with the next succeeding section as a person entitled to practise in that capacity.
(4) A person who is, under subsection (1), entitled to practise as a barrister or solicitor, or both, in any federal court has a right of audience:
(a) in any court of a State in relation to the exercise by the court of federal jurisdiction; and
(b) in any court of an internal Territory in relation to the exercise by the court of federal-type jurisdiction.
(5) The Chief Justice of the Supreme Court of a State or an internal Territory may direct the Registrar or other proper officer of that Supreme Court to keep a Register of Practitioners for the purposes of subsection (4) and, where such a Register is kept in a State or Territory, a person is not entitled, in a court of that State or Territory, to the right of audience referred to in subsection (4) unless he or she is registered in that Register.
(6) …
(7) …
(8) …
(9) …
(10) …
55C. (1) For the purposes of section 55B, the Chief Executive and Principal Registrar of the High Court shall cause a Register of Practitioners to be kept at the Registry of the High Court.
(2) Where it is shown to the satisfaction of the Chief Executive and Principal Registrar that a person would, but for subsection (3) of the last preceding section, be for the time being entitled by reason of that section to practise as a barrister or solicitor, or as both, in federal courts, the Chief Executive and Principal Registrar shall cause the name of the person, and the capacity in which he or she is to be entitled to practise, to be entered in the Register of Practitioners.
(3) …
(4) …
(5) …
(6) …
(7) …
78. In every Court exercising federal jurisdiction the parties may appear personally or by such barristers or solicitors as by this Act or the laws and rules regulating the practice of those Courts respectively are permitted to appear therein.
In De Pardo v Legal Practitioners Complaints Committee & Anor[35] the Full Court of the Federal Court dealt with a constitutional challenge concerning state powers to enact legislation providing for legal practitioners to be disciplined. The disciplinary action related to alleged overcharging where the assessment of costs concerned proceedings in a court exercising federal jurisdiction in an area covered entirely by federal law, namely, the Family Law Act 1975 (Cth). The Full Court of the Federal Court, in dismissing the constitutional challenge, observed that:
a)the scheme of Part VIIIA – Legal Practitioners of the Judiciary Act, in which ss.55B and 55C appear, is entirely complementary to State schemes for the admission of legal practitioners;[36]
b)there is, by virtue of s.55B(1) of the Judiciary Act, a primary entitlement to practise in any federal court, flowing from the entitlement to practise in a State or Territory court;[37]
c)the primary entitlement is qualified by the requirement in s.55B(3) of the Judiciary Act that the person’s name be entered in the High Court Register of Practitioners;[38]
d)absent any current rule for admission of federal legal practitioners it is only via admission as a legal practitioner in a State or Territory that a legal practitioner can have their name entered in the High Court Register of Practitioners;[39] and
e)if a person is no longer able to practise in a State or Territory by reason of the removal of their name from the State or Territory roll of practitioners, this has the inevitable consequence that their entitlement to practise in the federal courts is removed.[40]
[35] (2000) 97 FCR 575; [2000] FCA 335 (“De Pardo”). De Pardo is conveniently and eruditely summarised in University of Western Australia v Gray & Ors (No. 25) (2009) 180 FCR 483; [2009] FCA 1227 (“Gray (No. 25)”).
[36] De Pardo FCR at 583 and 596 per French J; FCA at paras.17 and 54 per French J (with whom Whitlam J agreed with respect to the issues summarised in these Reasons for Judgment: FCR at 598 per Whitlam J; FCA at para.60 per Whitlam J); Gray (No. 25) FCR at 492 per Barker J; FCA at para.29 per Barker J.
[37] De Pardo FCR at 594 per French J; FCA at para.50 per French J; Gray (No. 25) FCR at 491 per Barker J; FCA at para.25 per Barker J.
[38] De Pardo FCR at 594-595 per French J; FCA at para.50 per French J; Gray (No. 25) FCR at 491 per Barker J; FCA at para.25 per Barker J.
[39] De Pardo FCR at 595 per French J; FCA at para.51 per French J; Gray (No. 25) FCR at 491 per Barker J; FCA at para.26 per Barker J.
[40] Gray (No. 25) FCR at 493 per Barker J; FCA at para.33 per Barker J.
The “entitlement to practise in”[41] a federal court carries with it the right to act in relation to, and appear for, a party in a matter in a federal court.[42]
[41] Judiciary Act, s.55B(1).
[42] Cannon Street Pty Ltd & Ors v Karedis (2007) 226 FLR 273 at 279-280 per Williams JA and 281 per Jerrard JA; [2007] QCA 541 at paras.26-27 per Williams JA and para.38 per Jerrard JA (“Cannon Street”).
The Judiciary Act therefore allows parties in federal courts to appear:
a)personally;[43] or
b)by a person admitted as a barrister or solicitor, or as both, in a State or Territory Supreme Court, who is entitled to practise in a federal court, the entitlement to practise being subject to the person’s name being entered on the High Court Register of Practitioners,[44] but also subject to any other provisions of the Judiciary Act (of which there are none relevant) and laws and rules regulating the practice of the federal courts.[45]
[43] Judiciary Act, s.78.
[44] Judiciary Act, ss.55B(3) and 55C.
[45] Judiciary Act, s.78.
Both of Ms Simmonds and Ms Ding were admitted in a State Supreme Court, and were on the High Court Register of Practitioners, and thereby entitled to practise in any federal court. Therefore, under the Judiciary Act, and subject to any other laws and rules regulating the practice of the federal courts,[46] Ms Simmonds and Ms Ding had a right to act in relation to, and appear for, the Deputy Commissioner before the Registrar in this Court on the hearing of the sequestration order application in this matter.
[46] An example being s.548(5) of the Fair Work Act 2009 (Cth) which provides that a party may only be represented by a lawyer in small claims proceedings in the Fair Work Division of this Court by leave. Without leave a lawyer cannot appear notwithstanding their entitlement under the Judiciary Act to practise in any federal court.
It is therefore necessary for the Court to examine other possible preclusions or limitations on the right of Ms Simmonds and Ms Ding to act in relation to, and appear for, the Deputy Commissioner before the Registrar in this Court on the hearing of the sequestration order application in this matter.
TA Act
Section 15(1) and (2) of the TA Act provides as follows:
(1) In any action, prosecution or other proceeding under, or arising out of, a taxation law instituted by or on behalf of the Commissioner, a Second Commissioner or a Deputy Commissioner, to which the Commissioner, a Second Commissioner or a Deputy Commissioner is a party or in which the Commissioner, a Second Commissioner or a Deputy Commissioner intervenes or seeks to intervene, the Commissioner, Second Commissioner or Deputy Commissioner, as the case may be, may appear personally or may be represented by:
(a) a person enrolled as a barrister, solicitor, barrister and solicitor or legal practitioner of a federal court or of the Supreme Court of a State or Territory; or
(b) a person authorized by the Commissioner, a Second Commissioner or a Deputy Commissioner, by instrument in writing, to appear.
(2) The appearance of a person, and the statement of the person that the person appears by authority of the Commissioner, a Second Commissioner or a Deputy Commissioner, is prima facie evidence of that authority.
Section 15(1) and (2) of the TA Act were enacted by s.313 of the Taxation Laws Amendment Act 1984 (Cth),[47] which repealed the former s.15 of the TA Act, and substituted a new s.15 of the TA Act therefore. Section 15(1) and (2) of the TA Act are still as enacted under the TLA Act in 1984. In the Taxation Laws Amendment Bill 1984 (Cth) Explanatory Memorandum[48] the then Minister Assisting the Treasurer explained the proposed new s.15 of the TA Act as follows:
Clause 313 will repeal section 15 of the Principal Act which is redundant and insert a new section 15. The new section concerns appearances by the Commissioner, a Second Commissioner or a Deputy Commissioner in an action, prosecution or other proceeding under, or arising out of, a taxation law. By sub-section 15(1), it is stipulated that the Commissioner, Second Commissioner or Deputy Commissioner may appear personally or be represented by an appropriately enrolled barrister or solicitor or by another person, such as a legally qualified officer, authorised in writing to appear.
By sub-section 15(2), the appearance of a person and that person’s statement that he or she appears by authority of the Commissioner, a Second Commissioner or a Deputy Commissioner, will be prima facie evidence of the right to appear.[49]
[47] “TLA Act”
[48] “Explanatory Memorandum”.
[49] Explanatory Memorandum at page 82.
Section 15(1) and (2) of the TA Act is a specific law dealing with the appearance of the Commissioner, a Second Commissioner or a Deputy Commissioner in actions, prosecutions or other proceedings under, or arising out of, a taxation law where the proceedings are instituted by or on behalf of the Commissioner, a Second Commissioner or a Deputy Commissioner.
In this matter there is no doubt that there is a proceeding instituted by a Deputy Commissioner.
The proceeding is a proceeding under the Bankruptcy Act. Whether the proceeding is one “arising out of, a taxation law” is a matter to which the Court returns below. The words “arising out of” require that the proceeding had its origins in a taxation law.[50] That these proceedings arose out of a taxation law was not in issue. In any event, it suffices to observe that the width of the phrase “arising out of” without any direct words of qualification or limitation (such as “caused by or arising out of” or “directly arising out of”) evokes a less immediate, but still consequential, relationship,[51] such as that which might arise from a failure to comply with a taxation law, resulting in a judgment debt forming the basis for the creditors petition. If, however, the proceedings did not arise out of a taxation law, then s.15(1) of the TA Act has no application, and any right of appearance for a legal practitioner would arise under the Judiciary Act and the FM Act.
[50] Kavanagh v The Commonwealth (1960) 103 CLR 547.
[51] Government Insurance Office of New South Wales v RJ Green & Lloyd Pty Ltd (1966) 114 CLR 437 at 447 per Windeyer J; Transport Accident Commission v Treloar [1992] 1 VR 447 at 453 per McGarvie and Gobbo JJ; Dickinson v The Motor Vehicle Insurance Trust (1987) 163 CLR 500 at 505 per Mason CJ, Wilson, Brennan, Dawson and Toohey JJ.
In Schokker v Federal Commissioner of Taxation[52] the Federal Court was dealing with an appeal from a decision of the Administrative Appeals Tribunal[53] which affirmed decisions under review by the AAT to the extent that those decisions disallowed deductions for expenses to the applicant.[54] In the course of the hearing before the AAT an issue arose as to whether the Commissioner of Taxation was entitled to be legally represented by Counsel pursuant to s.15 of the TA Act, and in particular s.15(1) of the TA Act. The Federal Court found that:
There is express authorisation for the Commissioner to be represented by a solicitor or barrister.[55]
[52] (1998) 38 ATR 91 (“Schokker”).
[53] “AAT”.
[54] Schokker at 92 per RD Nicholson J.
[55] Schokker at 99 per RD Nicholson J.
Although in Schokker the Federal Court did not deal with s.15 of the TA Act in any comprehensive way the passage quoted above supports the view that s.15(1) of the TA Act provides express authorisation for the Commissioner (and by extension the Deputy Commissioner) to be represented by a barrister or solicitor.
In Pacific Exchange Corporation Pty Ltd v Federal Commissioner of Taxation[56] the Federal Court was dealing with an application for an order that the Commissioner of Taxation’s amended appeal statement in a taxation appeal be struck out.[57] Having dealt with the issue of whether or not leave to amend ought to be granted the Federal Court went on to make the following observations:
54 There is a further observation which I feel constrained to make, and that is in relation to the Commissioner's utilisation of, or attempted utilisation of, s 15 of the Taxation Administration Act 1953 (Cth) in relation to the conduct of serious revenue law litigation in this Court.
55 Like any litigant, the Commissioner is entitled to appear in person. Section 15 also makes it plain that the intention is that the Commissioner may in writing authorise one of his officers to appear. In so doing, though, that officer is not clothed with all that a court is entitled to expect from a person on the roll of legal practitioners.
56 In the conduct of federal litigation the Parliament has given the Commissioner a right of appearance, either personally or by a person authorised in writing. What the Parliament has not done is to confer the rights to practise, which are given to those whose names appear on the roll of practitioners kept by the Registrar of the High Court pursuant to the Judiciary Act (Cth) (Judiciary Act), s 55B. It is that section which enables a person who is, for the time being, entitled to practice as a barrister or solicitor or both of the Supreme Court of a State or Territory, an entitlement to practise in any Federal Court. ….[58]
[56] (2009) 180 FCR 300; [2009] FCA 1155 (“Pacific Exchange”).
[57] Pacific Exchange FCR at 301 per Logan J; FCA at para.1 per Logan J.
[58] Pacific Exchange FCR at 311 per Logan J; FCA at paras.54-56 per Logan J.
Pacific Exchange did not deal with any issue in relation to costs. Furthermore, it was a case in which Counsel at the Bar was directly briefed by the ATO.[59]
[59] Pacific Exchange FCR at 312 per Logan J; FCA at paras.58-59 per Logan J. The appearances noted in the FCA judgment record that “Counsel for the Respondent” was “Ms E Ford, directly briefed by the Australian Taxation Office”.
From Pacific Exchange it can be seen that the Federal Court has recognised that the Commissioner:
a)may appear personally;[60] or
b)may in writing authorise one of his officers to appear;[61] or
c)may appear by a person entitled to practice as a barrister or solicitor or both in any federal court.[62]
[60] Pacific Exchange FCR at 311 per Logan J; FCA at para.56 per Logan J.
[61] Pacific Exchange FCR at 311 per Logan J; FCA at paras.55-56 per Logan J.
[62] Pacific Exchange FCR at 311 per Logan J; FCA at para.56 per Logan J.
Pacific Exchange does not however deal with the difficulty with which the Court is faced here, where Ms Ding is not only one of the Commissioner’s officers, but also admitted in Western Australia as a barrister and solicitor, and on the High Court Register of Practitioners, and therefore entitled to practise in a federal court, including this Court, and who also purported to act as solicitor on the record in these proceedings, whilst also appearing as Counsel at the hearing before the Registrar. In Western Australia the appearance as “Counsel” in all courts by persons admitted as barristers and solicitors by the Supreme Court of Western Australia, that is, persons practising in the “amalgam”, dates back to at least the establishment of the Supreme Court of Western Australia in 1861.[63] In respect of federal courts the appearance of persons admitted as barristers and solicitors is expressly recognised by s.55C(2) of the Judiciary Act which speaks of a person “entitled … to practise as a barrister or solicitor, or as both, in federal courts”.
[63] On the first sitting of the Supreme Court of Western Australia in July 1861, the Attorney-General and three other gentlemen, severally barristers, took the oath of admission, and were consequently enrolled to practise in the Supreme Court of Western Australia as barristers, solicitors, attorneys and proctors: Enid Russell, A History of the Law in Western Australia and its Development from 1829 to 1979 (Nedlands: University of Western Australia Press, 1980), page 71. The establishment of a separate independent Bar in Western Australia is a relatively recent occurrence: “On 1 March 1961 he [Francis Theodore Page Burt, later Sir Francis Burt, Chief Justice of Western Australia] began to practise solely as a barrister, thereby establishing the beginnings of Western Australia’s independent Bar. … Western Australian lawyers continued to be able to practise as both barristers and solicitors. … Burt insisted that anyone who joined him [at the Bar] … should be a member of the Law Society. He supported the concept of law as a fused profession and preferred those who joined the [B]ar to have had at least five years of experience working in the amalgam.”: S. Welborn, Sandgropers Solicitors & Silks (Nedlands: University of Western Australia Press, 1998) pages 150 and 152.
In Deputy Commissioner of Taxation v Solway[64] the Queensland District Court dealt with an application for summary judgment in relation to the failure to remit instalments of income tax withheld from employees’ remuneration.[65] The Defendant was ordered to pay the Deputy Commissioner’s costs occasioned by an adjournment, to be assessed on an indemnity basis.[66] The Queensland District Court went on to observe that the “order in relation to costs may well prove empty” given that the Deputy Commissioner was represented pursuant to s.15(1)(b) of the TA Act, and that the “relevant conditions, it is understood, preclude professional costs being obtained and the same situation is understood to apply to … [Ms Scott’s] instructor, Mr Bell.”[67]
[64] [2010] QDC 336 (“Solway”).
[65] Solway at page 2 per Robin J.
[66] Solway at page 2 per Robin J.
[67] Solway at page 2 per Robin J.
In Deputy Commissioner of Taxation v Clear Blue Developments Pty Ltd (No. 2)[68] the Federal Court dealt with an application by the Deputy Commissioner for the costs of the winding up of a company on the ground of insolvency pursuant to the Corporations Act 2001 (Cth).[69]
[68] (2010) 190 FCR 11; [2010] FCA 1224 (“Clear Blue Developments (No. 2)”).
[69] Clear Blue Developments (No. 2) FCR at 12 per Logan J; FCA at para.1 per Logan J.
In Clear Blue Developments (No. 2) the Deputy Commissioner made a costs application with respect to the professional costs of an in-house government legal officer engaged by the ATO who had an interstate practising certificate. Questions arose as to whether:
a)the lawyer had the right to practise as a solicitor in Queensland; and
b)if he did have that right, whether he was acting as “solicitor on the record” as required by the FC Rules.
Although the purported solicitor on the record was an in-house government legal officer who held an interstate practising certificate, there was no evidence before the Federal Court as to his professional indemnity for work performed in Queensland. Additionally, the solicitor’s name and contact details did not appear in the footer of the originating process or subsequent documents filed on behalf of the plaintiff as required under the FC Rules, nor on the address for service. Rather, those documents contained only a generalised reference to the “ATO Legal Services Branch”.
Section 44(2) of the Legal Profession Act 2007 (Queensland)[70] provided that a government legal officer engaged in government work was, subject to the LP Act (Qld), entitled to engage in legal practice in Queensland. Section 74 of the LP Act (Qld) however, imposed a professional indemnity insurance requirement covering practice in Queensland upon inter-state legal practitioners, except (relevantly) in the case of a government legal officer who had an indemnity or immunity, whether provided by law or governmental policy, which was applicable in relation to that practice.[71]
[70] “LP Act (Qld)”.
[71] LP Act (Qld), s.74.
The effect of Clear Blue Developments (No. 2) is limited. All that the Federal Court determined was that:
a)sections 44(2) and 74(3) of the LP Act (Qld) had the effect that a government legal officer who is an interstate legal practitioner must not engage in legal practice in Queensland unless that officer has an indemnity or immunity, whether provided by law or government policy, that is applicable in relation to that practice;[72] and
b)recoverable costs were limited to outlays as opposed to professional costs because of the failure to adhere to the requirements of the then FC Rules in relation to the signification of a party acting by a solicitor, and thus the costs recoverable were the same as those for a litigant in person.
[72] Clear Blue Developments (No. 2), FCR at 19-20 per Logan J; FCA at para.38 per Logan J.
The limited effect ascribed to Clear Blue Developments (No. 2) in the preceding paragraph is confirmed by the Federal Court’s judgment in Deputy Commissioner of Taxation v Croftworth Property Holdings (No. 2) Pty Ltd (No. 2).[73] In Croftworth Property Holdings(No. 2) the Federal Court, constituted by the same Judge as in Clear Blue Developments (No. 2), and in respect of the same solicitor on the record, again acting in his capacity as a government legal officer employed by the ATO in relation to work in Queensland, was awarded professional costs. Having dealt with the orders for winding up and appointment of an official liquidator, the Federal Court then said as follows:
10 As to costs, there is, unlike on an earlier occasion when I encountered an application for legal costs on behalf of the Commissioner (Deputy Commissioner of Taxation v Clear Blue Developments (No 2) (2010) 190 FCR 111), compliance with the rules of this Court in relation to the presence of a solicitor on the record.
11 In those circumstances, there being evidence as well that the named person, Mr Tanna, is both on the roll of practitioners kept under the Judiciary Act 1903 (Cth), as well as entitled to practice under the laws of a State, I further order in each case that the plaintiff's costs be fixed in the sum of $6,192.44, and reimbursed in accordance with s 466(2) of the Corporations Act 2001 (Cth).[74]
That Clear Blue Developments (No. 2) ought to be limited to its particular facts is also confirmed by the subsequent judgment of the Federal Court in Oxenford Corporation.
[73] [2011] FCA 373 (“Croftworth Property Holdings (No. 2)”).
[74] Croftworth Property Holdings (No. 2) at paras.10-11 per Logan J.
In Oxenford Corporation the Federal Court made costs orders in favour of the Deputy Commissioner for professional costs, seemingly for an ATO employed lawyer. In Oxenford Corporation the Federal Court observed that:
a)the order made was inconsistent with that in Clear Blue Developments (No. 2);[75]
b)the judgment in Clear Blue Developments (No. 2) was inconsistent with observations made by the Queensland Court of Appeal in Cannon Street where the Court saw no basis for refusing an application for costs by a practitioner on the High Court Register of Practitioners, but not on the Queensland Supreme Court roll of practitioners, in a matter within federal jurisdiction conferred upon the Supreme Court of Queensland, and in which the Queensland Court of Appeal considered that to do so would have been to derogate from the right of appearance conferred by the Judiciary Act;[76]
c)in Gray (No. 25) the Federal Court considered that it had discretion to order costs in favour of an employed practitioner;[77]
d)the Federal Court was “not entirely sure that the issue to which … [the Federal Court] adverted … [in Clear Blue Developments (No. 2)] arises in the present case”;[78] and
e)the power to award to costs is contained in s.43 of the Federal Court of Australia Act 1976 (Cth), and there was “no reason … to hold that there is any impediment to the Commissioner recovering costs simply because of the source of legal advice and his choice as to representation … [and] no reason to investigate the way in which he has sought such advice and representation”,[79] but that if it were necessary to do so the Federal Court would be inclined to take the approach taken in Cannon Street and Gray (No. 25).[80]
[75] Deputy Commissioner of Taxation v Oxenford Corporation Pty Ltd [2011] FCA 96 at para.3 per Dowsett J (“Oxenford Corporation”).
[76] Oxenford Corporation at para.3 per Dowsett J.
[77] Oxenford Corporation at para.3 per Dowsett J.
[78] Oxenford Corporation at para.4 per Dowsett J.
[79] Oxenford Corporation at para.5 per Dowsett J.
[80] Oxenford Corporation at para.5 per Dowsett J.
In circumstances where there are conflicting judgments of a superior court, it is open to this Court to follow the judgment which appears to it to be correct. In the circumstances, this Court considers, with great respect, that the judgment in Oxenford Corporation is to be preferred. It is to be preferred because, firstly, the issue with respect to indemnity or immunity does not arise in this case. Secondly, whilst the form and content of the filing details of the creditors petition in this case are similar to those in Clear Blue Developments (No. 2) the requirement that a creditors petition “must be in accordance with Form 6”[81] cannot override the entitlement for a legal practitioner to appear on behalf of the Deputy Commissioner which derives from the Judiciary Act, but also from s.15(1)(a) of the TA Act, and the usual rules as to the entitlement to costs of a successful party in litigation. Further, and in any event, the creditors petition filed in this matter contains all of the relevant detail required by the creditors petition, albeit slightly differently formatted. Read together with the Short Form Bill of Costs and attached letter sent to Mr Debaugy by Ms Ding, no reasonable person could have been under a misapprehension as to whether a solicitor was acting for the Deputy Commissioner. Clear Blue Developments (No. 2) is also distinguishable because of the requirements of the objects of the FM Act which enable the Court to operate informally in the exercise of judicial power and to enable it to use streamlined procedures.[82] In the circumstances, to deny an entitlement to costs on the basis that the filing party’s details were not in the form required, where those details are in the creditors petition but differently formatted, would be contrary to the objects of the FM Act. For those reasons, this Court prefers the judgment in Oxenford Corporation.
[81] FMC Bankruptcy Rules, r.4.02(1).
[82] FM Act, s.3(2)(a) and (b).
Section 15(1) of the TA Act deals with how a Commissioner, Second Commissioner or Deputy Commissioner may appear or may be represented. Thus, it prescribes that the Commissioner, a Second Commissioner or a Deputy Commissioner “may appear personally or may be represented by”, and then specifies by whom they may be represented. Thus, if the Deputy Commissioner did not appear personally before the Registrar in this Court on the hearing of the sequestration order application, then the Deputy Commissioner was allowed to be represented. If the Deputy Commissioner was being represented then the Deputy Commissioner was not appearing personally. This follows from the use of the disjunctive “or” in the phrase “may appear personally or may be represented by”. Where, as here, the Deputy Commissioner did not appear personally who may represent the Deputy Commissioner? Section 15(1) of the TA Act provides that two types of person may represent the Deputy Commissioner, namely:
a)firstly, a person enrolled as a barrister, solicitor, barrister and solicitor or legal practitioner of a federal court or of the Supreme Court of a State or Territory; or
b)secondly, a person authorised by the Deputy Commissioner by instrument in writing to appear.
The two categories of person are again separate, as indicated by the use of the disjunctive “or” between paragraphs (a) and (b) of s.15(1) of the TA Act. Thus, if a person falls within s.15(1)(a) as “a person enrolled as a barrister, solicitor, … [etc]” they appear as such, and are not required to be authorised by the Deputy Commissioner by instrument in writing to appear.
The authorised person category under s.15(1)(b) of the TA Act is therefore exclusive of a person in the legal practitioner category. However, as is evident from the Explanatory Memorandum,[83] a person who is legally qualified, but does not fall within the legal practitioner category, can be authorised by the Deputy Commissioner by instrument in writing to appear. Examples of such a person might include a foreign lawyer not yet admitted in a State or Territory, or a law graduate who has chosen not to be admitted.
[83] Explanatory Memorandum, page 82.
The appearance of a person under s.15(1)(b) of the TA Act does not give rise to an entitlement to claim costs, as there are no professional costs incurred for a legal practitioner entitled to practise in a federal court where an appearance is made under s.15(1)(b) of the TA Act.
Section 15(2) of the TA Act dealing with the appearance of a person, and a statement by that person, that they appear by authority of the Deputy Commissioner, is a reference to a person in the authorised person category. That is so, because a person in the legal practitioner category does not appear by the authority of the Deputy Commissioner, but on the instructions of the Deputy Commissioner. That is so whether they are appearing only as Counsel (and whether as a member of the Independent Bar, or a lawyer from the amalgam, or a government lawyer employed by the ATO), or as the solicitor on the record. A person in the legal practitioner category simply appears for the Deputy Commissioner, and is not required to be authorised, or to state to a court that they are authorised, when appearing. A person in the authorised person category is, on the face of it, authorised by reason of a statement to a court that they appear for the Deputy Commissioner.[84] Notably, and contrary to what occurred in this matter, no leave is required of a court for the appearance of a person on behalf of the Deputy Commissioner in either the legal practitioner category or the authorised person category.
[84] TA Act, s.15(2).
Section 15(1) of the TA Act is consistent with s.55B of the Judiciary Act in that it allows a person entitled to practise in a federal court to appear on behalf of the Deputy Commissioner. Section 15(1) of the TA Act expands the Deputy Commissioner’s rights of appearance to include persons who would not be entitled to appear in a federal court under the Judiciary Act.[85] However, for the latter expanded category of person there is no entitlement to claim professional costs, just disbursements.
[85] TA Act, s.15(1)(b).
FM Act
Section 44 of the FM Act provides as follows:
A party to a proceeding before the Federal Magistrates Court is not entitled to be represented by another person unless:
(a) under the Judiciary Act 1903 , the other person is entitled to practise as a barrister or solicitor, or both, in a federal court; or
(b) under the regulations, the other person is taken to be an authorised representative; or
(c) another law of the Commonwealth authorises the other person to represent the party.
Section 44(a) of the FM Act is consistent with s.55B of the Judiciary Act and s.15(1)(a) of the TA Act. Section 44(c) of the FM Act is consistent with s.15(1)(b) of the TA Act. In the case of a person authorised to appear on behalf of the Deputy Commissioner, pursuant to s.15(1)(b) of the TA Act, that authorisation would, for the purposes of an appearance in this Court, be pursuant to another law of the Commonwealth authorising the other person to represent the party within the meaning of s.44(c) of the FM Act. The FM Act, like the TA Act, confirms the right of a legal practitioner to appear for the Deputy Commissioner under the provisions of the Judiciary Act, but expands the categories of persons who may appear to include those authorised pursuant to another law of the Commonwealth, in this case s.15(1)(b) of the TA Act.
LP Act (WA)
An interstate government lawyer is not subject to any prohibition under the LP Act (WA) in relation to engaging in legal practice in Western Australia, or making representations about engaging in legal practice in Western Australia, or conditions imposed on a local practising certificate.[86] An “interstate government lawyer” means an Australian lawyer, or a person eligible for admission to the legal profession, employed in another jurisdiction or a government agency in another jurisdiction.[87]
[86] LP Act (WA), s.79(1).
[87] LP Act (WA), a.79(1).
An “Australian lawyer” is a person who is admitted to the legal profession under the LP Act (WA) or a corresponding law.[88] The words “corresponding law” mean:
a)a law of another jurisdiction that corresponds to the relevant provisions of the LP Act (WA), or, if a regulation is made declaring a law of another jurisdiction to be a law that corresponds to the LP Act (WA), the law declared under that regulation for the other jurisdiction; or
b)if the term is used in relation to a matter that happened before the commencement of the law of another jurisdiction that, under paragraph (a) is the corresponding law for the other jurisdiction, a previous law applying to legal practice in the other jurisdiction.[89]
[88] LP Act (WA), s.4(a).
[89] LP Ac (WA)t, s.3.
By reason of s.68(2) of the LP Act there is requirement for Ms Simmonds and Ms Ding to have professional indemnity insurance.
The effect of these provisions in relation to Ms Simmonds, who is an “interstate government lawyer” and an “Australian lawyer” as defined in the LP Act (WA), does not preclude her from practising in a federal court, such as this Court.
Final consideration, conclusions and orders
What right of appearance did Ms Simmonds and Ms Ding have in this matter, and what are the costs consequences of any right of appearance that they had, or did not have?
A person has an entitlement to practise in a federal court, which this Court is,[90] arising from the entitlement to practise in a State or Territory court.[91] That entitlement is qualified by the requirement that the person’s name appear in the High Court Register of Practitioners.[92]
[90] FM Act, s.8(1).
[91] Judiciary Act, ss.55B(1) and 78.
[92] Judiciary Act, ss.55B(3) and 55C. De Pardo FCR at 594-595 per French J; FCA 335 at para.50 per French J; Cannon Street FLR at 278-280 per Williams JA, 281 and 283-284 per Jerrard JA and 284 per Chesterman J; QCA at paras.20-30 per Williams JA; paras.37, 46 and 49 per Jerrard JA; and para.55 per Chesterman J.
The designation of Ms Simmonds and Ms Ding in the creditors petition as solicitors, and likewise Ms Ding on the Short Form Bill of Costs and covering letter, makes it apparent that a person or persons who were solicitors had the conduct of the matter for the Deputy Commissioner. Mr Debaugy could have been under no misapprehension in this regard.
Both Ms Simmonds and Ms Ding were admitted to practise as solicitors of State Supreme Courts, and both at all material times had their names in the High Court Register of Practitioners. As such, they met the criteria with respect to the legal practitioner category in s.15(1)(a) of the TA Act. Ms Simmonds was entitled to be solicitor on the record, and Ms Ding was entitled to be a solicitor working on the matter and appearing before the Registrar in this Court. Both were entitled to practise in the federal courts, including this Court. [93]
[93] Judiciary Act, ss.55B(3) and 55C.
Ms Simmonds was properly signified as the solicitor on the record in the matter, and Ms Ding, quite properly, signified her involvement in acting in various parts of the proceedings, and appeared before the Registrar on the sequestration order application. In appearing before the Registrar Ms Ding was not conducting the matter “in person” either on her own behalf (if that be possible) or on a de facto in person basis for the Deputy Commissioner. She was appearing as of right under the legal practitioner category in s.15(1)(a) of the TA Act.
Because both Ms Simmonds and Ms Ding were an “Australian lawyer”, to the extent that they were an interstate government lawyer, there was no prohibition on their practising in a federal jurisdiction in Western Australia.
In the above circumstance, having successfully obtained a sequestration order against Mr Debaugy, the Deputy Commissioner was entitled to apply for costs. The Deputy Commissioner’s costs included the professional costs incurred in the proceedings. The Deputy Commissioner was entitled to the professional costs and disbursements claimed, in the amount of $4068.90. It follows that:
a)Order 2 of the Orders of Registrar Jan of 1 March 2011 must be set aside; and
b)there ought to be an order that Mr Debaugy pay the Deputy Commissioner’s costs of the sequestration order application before Registrar Jan in the sum of $4068.90, to be paid out of the estate of the Respondent in accordance with the Bankruptcy Act 1966 (Cth).
There will be orders accordingly.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Lucev FM
Date: 11 June 2012
5
26
16