Parr v Commissioner of Taxation (No 2)

[2022] FCA 868

FEDERAL COURT OF AUSTRALIA

Parr v Commissioner of Taxation (No 2) [2022] FCA 868

Appeal from:

Appeal from Parr and Commissioner of Taxation [2021] AATA 2240

File number:

WAD 178 of 2021

Judgment of:

BANKS-SMITH J

Date of judgment:

22 July 2022

Catchwords:

ADMINISTRATIVE LAW - appeal against decision of the Administrative Appeals Tribunal to refuse to reinstate application - where parties sought orders allowing appeal by consent - orders made allowing appeal

Legislation:

Federal Court of Australia Act 1976 (Cth) s 25

Cases cited:

Parr v Commissioner of Taxation [2022] FCA 678

PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 14

Redbubble Ltd v Hells Angels Motorcycle Corporation (Australia) Pty Limited [2021] FCA 1467

Division:

General Division

Registry:

Western Australia

National Practice Area:

Taxation

Number of paragraphs:

6

Date of hearing:

Determined on the papers

Solicitor for the Applicant:

Kings Park Legal

Solicitor for the Respondent:

Australian Government Solicitor

ORDERS

WAD 178 of 2021

BETWEEN:

RONALD ERNEST PARR

Applicant

AND:

COMMISSIONER OF TAXATION

Respondent

ORDER MADE BY:	BANKS-SMITH J
DATE OF ORDER:	22 JULY 2022

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.The decision of the Administrative Appeals Tribunal dated 7 July 2021 be set aside and be remitted to the Tribunal for determination according to law.

3.The respondent pay the applicant's costs of the appeal to be taxed if not agreed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BANKS-SMITH J:

1. On 9 June 2022 I granted to the applicant an extension of time to pursue his appeal from a decision of the Administrative Appeals Tribunal refusing his application for reinstatement of a review proceeding which had been summarily dismissed.  I published reasons:  Parr v Commissioner of Taxation [2022] FCA 678 (primary reasons).

2. My chambers have received a signed minute of consent orders seeking orders allowing the appeal.

3. It is necessary to consider whether the power to dispose of the appeal by consent under s 25(2B)(b) of the Federal Court of Australia Act 1976 (Cth) should be exercised. The principles are addressed elsewhere: Redbubble Ltd v Hells Angels Motorcycle Corporation (Australia) Pty Limited [2021] FCA 1467 at [7]‑[12]; and the cases collected and applied in PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 14 at [14]‑[15].

4. In short, there are a number of Full Court authorities to the effect that the exercise of the power to allow an appeal by consent is dependent upon the identification, to the satisfaction of the Court, of arguable appellable error in the decision below.

5. In my view, on the basis of the matters that I addressed at [46]‑[49] of the primary reasons, there is arguable appellable error in the Tribunal's decision and accordingly it is appropriate to make the orders as sought jointly by the parties.

6. There will be orders accordingly.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Banks-Smith.

Associate:

Dated:       22 July 2022