Kunz, Leslaw Francescek v The Commisioner of Taxation of the Commonwealth of Australia

[1996] FCA 150

IN THE FEDERAL COURT OF AUSTRALIA  )No. VG235 of 1993
VICTORIA DISTRICT REGISTRY         )  No. VG236 of 1993
GENERAL DIVISION                   )  No. VG237 of 1993

On appeal from the Administrative Appeals Tribunal constituted by Deputy President Gerber

BETWEEN:LESLAW FRANCESCEK KUNZ

Applicant

AND:    THE COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA

Respondent   

CORAM:    Jenkinson J.

PLACE;    Melbourne

DATE:     1 March, 1996    

REASONS FOR JUDGMENT

On 27 February 1986 orders were pronounced that the decisions of the Administrative Appeals Tribunal which had been the subjects of the three appeals be set aside and that the matter of the review of each of the respondent's three decisions be remitted to the Tribunal, constituted by a member other than him who had made the decisions set aside, to be heard and decided again according to law. The respondent was ordered to pay the applicant's costs of the appeal. Counsel for the applicant sought the grant to the applicant of a costs certificate in respect of those further hearings by the Tribunal. There is no reason to doubt that the three matters will be heard together, as they were in the first place. Counsel for the applicant submitted that sub-section 8(1) of the Federal Proceedings (Costs) Act 1981 authorised the grant of such certificates.

Section 8 provides:

"(1) Subject to this Act, where, in a Federal appeal that succeeds on a question of law, the court that heard the appeal grants a new trial in a cause of a civil nature, the court may, on the application of a party to the cause, grant to the party a costs certificate in respect of a new trial.

(2)  Subject to this Act, where, in a Federal appeal, being a Federal appeal against a conviction (whether on indictment or otherwise) or a Federal appeal in a sequence of appeals which includes an appeal against a conviction (whether on indictment or otherwise), that succeeds on a question of law, the court that heard the Federal appeal grants a new trial of an accused person, the court may, on the application of the accused person, grant to the accused person a costs certificate in respect of the new trial.

(3)  The certificate that may be granted under subsection (1) or (2) to a party to a cause or to an accused person, as the case may be, by a court that has granted a new trial is a certificate stating that, in the opinion of the court, it would be appropriate for the Attorney-General to authorize a payment under this Act to that party or accused person in respect of such part as the Attorney-General considers appropriate of any costs incurred by that party or accused person in relation to the new trial."

By s.3 the expression "Federal appeal" is so defined as to comprehend an appeal to this court from a decision of the Tribunal. Each of the appeals succeeded on a question of law. But it is a question whether the further hearing is comprehended by the words "new trial in a cause of a civil nature". The proceeding in the Tribunal may be said to be "of a civil nature". All the appeals comprehended by the definition of "Federal appeal", except an appeal to this court from a decision of the Tribunal, are from a judgment of a court. It was submitted that, because an appeal from a decision of the Tribunal had been included in the defined meaning of "Federal appeal", a legislative intention could be inferred that sub-section 8(1) apply to a re-hearing granted in the disposition of an appeal from a decision of the Tribunal, so as to enable the court to understand the expression "a new trial in a cause of a civil nature" in a sense which would comprehend such a re-hearing.

I cannot think that the draftsman of s.8 conceived the words "a new trial in a cause" to be capable of comprehending a hearing in an administrative process. The words used, particularly the words "in a cause", have no reference, either in common parlance or in legal discourse, to such a process. I cannot find in sub-section 8(1) authority to grant the certificates sought by counsel for the applicant.

Counsel suggested that other judges of the court had granted certificates of the kind sought, but he was not able to identify an appeal in which that had occurred.  Nor have I

been able to do so.

I certify that this and the 3 preceding pages are a true copy of the Reasons for Judgment of the Honourable Justice Jenkinson.

Associate

Dated:  1 March, 1996