Morien v Tax Agents' Board (WA) (No.2)
[2007] FMCA 648
•27 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MORIEN & ANOR v TAX AGENTS BOARD (WA) (No.2) | [2007] FMCA 648 |
| ADMINISTRATIVE LAW – Costs. |
| Duncan v Hotop [2002] FMCA 56 |
| First Applicant: | NEIL EDOUARD MORIEN |
| Second Applicant: | BEAZLEY NEMASS PTY LTD (ACN 079 121 430) |
| Respondent: | TAX AGENTS BOARD |
| File number: | PEG 53 of 2006 |
| Judgment of: | McInnis FM |
| Hearing date: | 27 April 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 27 April 2007 |
REPRESENTATION
| First Applicant: | In person |
| Counsel for the Respondent: | Mr T. Burrows |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Applicants shall pay the Respondent's costs fixed in the sum of $4,780.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 53 of 2006
| NEIL EDOUARD MORIEN |
First Applicant
| BEAZLEY NEMASS PTY LTD (ACN 079 121 430) |
Second Applicant
And
| TAX AGENTS BOARD (WA) |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
In this application, the Court delivered a judgment on 12 April 2007. On that occasion, the court granted liberty to apply to the parties within seven days of the date of the orders in relation to the question of costs. The First Applicant indicated to the court on that occasion that he had an understanding that there may have been an agreement between the parties that each party should bear their own costs.
As it happened, upon close perusal of both the transcript of proceedings which had occurred earlier on 14 March 2006 and 4 April 2006, together with a perusal of orders made by the court on 4 April 2006, 12 April 2006, 26 May 2006 and 23 October 2006, it would appear that the court had reserved costs, and it was only on one occasion; namely 14 March 2006, that the court made a specific order “That each party should bear their own costs”.
That order, however, specifically states “of the hearing this day”. A perusal of the transcript is consistent with the intent of the parties that the costs order on that day only relates to the costs of the hearing that day, and did not extend otherwise to costs which may or may not follow the event of the court's judgment.
Understandably, however, that the First Applicant perhaps took the view that it did apply, though it would seem on a review of the material it would appear that there is neither any correspondence, orders or transcript which would reveal a concession having been made by the respondent that each party bear their own costs of the application.
Hence, the Respondent in submissions dated 19 April 2007, has submitted that costs should follow the event in the usual way, and that the court, having dismissed the application, should then proceed to make an order that the Applicants pay the Respondent's costs of the application.
The First Applicant has submitted that the court should indeed make an order that each party bear their own costs, and has referred to a decision of the court in a matter of Duncan v Hotop [2002] FMCA 56 in support of the proposition that the court may, on occasions, in the exercise of its discretion, indeed make an order that each party shall bear their own costs. In the present case the First Applicant is a professional person who was made aware of the risk of pursuing the matter at an early stage.
In my view, however, in this application, it is clear that the court has determined the application in a manner which clearly indicates that the application has been dismissed for the reasons set out in the judgment. I note in passing that during the course of the proceedings earlier in the court, reference was made to the prospect of the current application perhaps being misconceived, to the extent that there is adequate provision under the Tax Assessment Act for a merit review process through the Administrative Appeals Tribunal.
So much was evident in the transcript of the proceedings on 14 March 2006. The matter was the subject of further adjournments and I am satisfied the Applicants had time to reflect upon and consider the position. The matter was pursued and pursued unsuccessfully. In my view this case is one where in the exercise of discretion it is appropriate that costs should follow the event.
During the course of submissions, however, I considered it inappropriate for the court to simply make an order that the costs, in default of agreement, be taxed pursuant to Schedule 1 of the Federal Magistrates Court Rules 2001. The Rules do not provide for a taxation process, and hence it would be necessary to apply order 62 of the Federal Court Rules, to facilitate a taxation process.
Given that this application was dealt with on written submissions and that effectively, as a preliminary issue which was determinative of the substantive application, the matter was dealt with as a discrete event in what might be described as an interim hearing on written submissions. In my view that it is more appropriate for the court to fix the costs based on Schedule 1 in order to avoid further costs and expense to the parties.
It is appropriate to fix costs in the following terms:
Stage 1(a) $2,505.00
Stage 2$1,250.00
Short mention 4 April 2006 $205.00
Short mention 26 May 2006 $205.00
Short mention 13 October 2006 $205.00
Short mention 12 April 2007 $205.00
Short mention 27 April 2007 $205.00
Total -$4,780.00
This amount, in my view, is a fair and reasonable amount to fix, having decided that costs should follow the event.
For those reasons, the further order of the court is
The Applicants shall pay the Respondent's costs fixed in the sum of $4,780.00.
I note for the sake of completeness that those costs do not include costs of 14 March 2006.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 27 April 2007
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