Pearson v Commissioner of Taxation (No 2)
[2009] FCA 1012
•27 AUGUST 2009
FEDERAL COURT OF AUSTRALIA
Pearson v Commissioner of Taxation (No 2) [2009] FCA 1012
JANETTE ANN PEARSON v DEPUTY COMMISSIONER OF TAXATION
QUD 264 of 1999
QUD 265 of 1999
QUD 266 of 1999SPENDER J
27 AUGUST 2009
BRISBANE
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 264 of 1999
BETWEEN: JANETTE ANN PEARSON
ApplicantAND: DEPUTY COMMISSIONER OF TAXATION
Respondent
JUDGE:
SPENDER J
DATE OF ORDER:
27 AUGUST 2009
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.The application in respect of the assessment of additional tax pursuant to s 223 of the Income Tax Assessment Act 1936 (Cth) be refused.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 265 of 1999
BETWEEN: JANETTE ANN PEARSON
ApplicantAND: DEPUTY COMMISSIONER OF TAXATION
Respondent
JUDGE:
SPENDER J
DATE OF ORDER:
27 AUGUST 2009
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.The application respect of additional tax and penalty tax under s 226H and s 226X of the Income Tax Assessment Act 1936 (Cth) be allowed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 266 of 1999
BETWEEN: JANETTE ANN PEARSON
ApplicantAND: DEPUTY COMMISSIONER OF TAXATION
Respondent
JUDGE:
SPENDER J
DATE OF ORDER:
27 AUGUST 2009
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.The application in respect of additional tax and penalty tax under s 226H and s 226X of the Income Tax Assessment Act 1936 (Cth) be allowed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 264 of 1999
QUD 265 of 1999
QUD 266 of 1999
BETWEEN: JANETTE ANN PEARSON
ApplicantAND: DEPUTY COMMISSIONER OF TAXATION
Respondent
JUDGE:
SPENDER J
DATE:
27 AUGUST 2009
PLACE:
BRISBANE
REASONS FOR JUDGMENT
On 27 May 2009, I gave reasons for judgment in respect of each of the above proceedings for the income tax years 1992, 1993 and 1994.
On that day, I directed the parties to bring in Short Minutes of Orders to give effect to these reasons for judgment for each of the income years 1992, 1993 and 1994. I further ordered that if any party wishes the Court to make an order as to costs, that party file and serve submissions within 28 days. I also ordered that if submissions are filed and served within 28 days, the other party file and serve submissions in reply within 21 days.
On 26 June 2009, a Deputy District Registrar of the Court wrote to the solicitors for the parties referring to the orders, and indicating that, as at 26 June 2009, the Court had not received Short Minutes of Orders in these matters. The Deputy District Registrar asked “would the parties attend to this as soon as possible”.
By a letter dated 1 July 2009, Johnsons Solicitors, solicitors for the applicant, said:
We refer to your letter dated 26 June 2009 requesting advices with regard to bringing in short minutes of order to give effect to the reasons of judgment of Hon. Justice Spender delivered on 27 May 2009.
We advise that we have sought instructions from our client in regard to proposed orders as to costs to be made and are presently waiting receipt of our client’s instructions in order that we can put forward those instructions to the respondent’s solicitors to obtain instructions from the respondent.
We have requested our client to provide us with urgent instructions.
On 21 July 2009, a solicitor for the Australian Government Solicitor, the solicitor for the respondent, wrote to Deputy District Registrar Baldwin, and said:
1. We refer to your letter of 26 June 2009 and advise as follows.
2.On 27 May 2009 we received the Judgment of Spender J in the absence of the Applicant, Mrs Pearson. On that day we communicated the Judgment and the directions made by the Court in respect of costs to her representatives, a copy of our letter of that day being enclosed.
3.Given the outcomes of the matters we wrote to Messrs Johnsons Lawyers proposing that each party bear their own costs in the matter i.e. that there be no order as to costs as between the parties.
4.By correspondence dated 3 July 2009 and 20 July 2009, Mrs Pearson’s representatives have indicated that they will seek to list the matter as to costs contrary to the directions of the Court on 27 May 2009.
5.As the time for submissions in respect of costs has passed we now enclose the short Minutes of Orders in each matter proposed on behalf of our client.
6. If there is any other we need to attend to please let us know.
Notwithstanding the reference to “getting instructions” contained in the letter of Johnsons Solicitors of 1 July 2009, and to the correspondence in point number 4 of the letter from the Australian Government Solicitor of 21 July 2009 about listing the matter as to costs, there has been, first, no submission as to costs filed within 28 days of 27 May 2009, or at all; and, second, there has been no attempt to have the matter listed as to costs or otherwise.
In those circumstances, since the time for submissions in respect of costs has passed, I am prepared to proceed to making the orders in respect of each of the three proceedings. I have not had the benefit of any Short Minutes of Orders from the applicant.
In my judgment, it is appropriate to make orders in terms of short Minutes of Orders proposed on behalf of the respondent. Those orders give effect to my reasons for judgment pronounced on 27 May 2009.
I therefore make the following orders:
In QUD 264 of 1999, the Court orders that:
1.The application in respect of the assessment of additional tax pursuant to s 223 of the Income Tax Assessment Act 1936 (Cth) be refused.
In QUD 265 of 1999, the Court orders that:
1.The application in respect of additional tax and penalty tax under s 226H and s 226X of the Income Tax Assessment Act 1936 (Cth) be allowed.
In QUD 266 of 1999, the Court orders that:
1.The application in respect of additional tax and penalty tax under s 226H and s 226X of the Income Tax Assessment Act 1936 (Cth) be allowed.
Given the history of the matter outlined above, I make no order as to costs in any of the three proceedings.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender. Associate:
Dated: 9 September 2009
Solicitor for the Applicant: Johnsons Solicitors and Attorneys Solicitor for the Respondent: Australian Government Solicitor
Date of Hearing: Heard on the papers Date of Judgment: 27 August 2009
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