McEwan v The Commissioner of Taxation of the Australian Taxation Office (No 2)

In the matter of McEwan v The Commissioner of Taxation of the Australian Taxation Office (No 2), the plaintiff, Mr. McEwan, initiated proceedings against the Commissioner of Taxation of the Australian Taxation Office and other defendants, seeking relief in relation to taxation matters. The defendants, including the Commonwealth and various state defendants, successfully applied to have certain parts of the plaintiff's claim struck out, and they sought costs and other orders. The central legal issues before the court were whether the plaintiff should be granted leave to replead certain claims, the appropriate basis for awarding costs to the defendants, and the consolidation of proceedings with related matters.

The court considered the plaintiff's request to replead parts of his claim that had been struck out. The court determined that the plaintiff should be granted leave to replead the relevant claims, but with specific conditions, including a 21-day timeframe and a 14-day waiting period before filing further amendments to avoid repetitive amendments. Regarding costs, the court found that the Commonwealth and some defendants were substantially successful on their applications, and the plaintiff had not provided sufficient reason to deviate from the usual rule that costs follow the event. Consequently, the plaintiff was ordered to pay the Commonwealth and some defendants' costs on a standard basis and the state defendants' costs on an indemnity basis, considering the warnings given to the plaintiff about the potential for indemnity costs.

The court further addressed the application for consolidation with related proceedings, adjourning the decision to a future date. Additionally, the court provided that all parties retained the liberty to apply for further orders with appropriate notice. The final orders included granting the plaintiff leave to replead specific parts of his claim, setting timelines for re-pleading, requiring the plaintiff to pay costs to the defendants, and adjourning the consolidation application.