Ray v Tax Agents' Board of Queensland

[2005] FCA 1914

FEDERAL COURT OF AUSTRALIA

Ray v Tax Agents’ Board of Queensland [2005] FCA 1914

LESLIE JAMES RAY v TAX AGENTS’ BOARD OF QUEENSLAND

QUD 243 OF 2005

DOWSETT J
14 OCTOBER 2005
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 243 OF 2005

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	LESLIE JAMES RAY APPELLANT
AND:	TAX AGENTS' BOARD OF QUEENSLAND RESPONDENT
JUDGE:	DOWSETT J
DATE OF ORDER:	14 OCTOBER 2005
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.        The appeal be dismissed;

2.The appellant pay the respondent’s costs of the appeal to be taxed, including costs of the notice of motion and reserved costs, to be taxed on a “party and party” basis.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 243 OF 2005

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	LESLIE JAMES RAY APPELLANT
AND:	TAX AGENTS' BOARD OF QUEENSLAND RESPONDENT

JUDGE:	DOWSETT J
DATE:	14 OCTOBER 2005
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. This is a motion by the respondent to the appeal to dismiss it.  The appeal is from a decision of a Senior Member of the Administrative Appeals Tribunal reviewing a decision of the Tax Agents’ Board (the “Board”).  The Board had cancelled the registration of the appellant.  However the Senior Member substituted for that penalty an order that he be suspended from acting as a tax agent for a period of 90 days.  It seems that at the time at which the Senior Member delivered his decision, counsel for the appellant requested a delay in the commencement of the suspension.  The Tribunal observed that it was functus officio but that if there were an appeal, the order would be stayed until the conclusion of the appeal process.

2. Counsel for the appellant then said words to the effect: ‘Well, in that case, we will file a notice of appeal and then withdraw it on 31 October 2005, which will have the same effect.’  It was pointed out that there could be no notice of appeal unless an error of law was alleged.  Counsel then said, ‘We should be able to identify one of those.’  As between the parties to this appeal, the only inference that I can draw from this version of events, which is not contradicted, is that counsel for the appellant proposed to file a notice of appeal purely for the purpose of obtaining a delay in the operation of the order for suspension. 

3. On an earlier occasion when the parties to this appeal appeared before me, counsel for the respondent effectively conceded that there had been an error of law which would justify remitting the matter for further consideration.  At that time, there was some dispute between the parties as to the proper form of order.  Thus, although I deprecate filing of an appeal for the purpose of obtaining a suspension of the penalty, I will not take as stringent a view of it as I might otherwise have done, given that there was, in fact, operative error in the relevant decision.  I should also say that I am proceeding upon the evidence before me.  The relevant member of the Bar has not been heard in his own defence.  It would not be appropriate to infer, as against him personally, that the version of facts which I have heard, is correct.  He should have an opportunity to respond before any such inference is drawn as against him.  

4. I was told, without objection, that at some time prior to 7 October, an offer was made on behalf of the appellant to discontinue the appeal with effect from 21 October and to pay the respondent Board’s costs up to, and including 3 October.  That offer was not accepted.  On 7 October, an open offer was made to the same effect.

5. The parties are now in dispute as to three issues, namely:

   ·the date upon which the proceedings should be effectively terminated; 

   ·the date up to which costs should be ordered against the appellant;  and

   ·whether or not those costs should be taxed on a “party and party” or “solicitor and client” basis. 

   It is appropriate to deal with the three matters separately.

6. As to the question of the dismissal of the proceedings, it is clear that the appellant has no intention of prosecuting them.  In those circumstances, they should be dismissed.  There is simply no basis for dismissing them with effect from any date other than today.  The proceedings will therefore be dismissed.

7. As the appellant has commenced proceedings and not prosecuted them to resolution, the ordinary order would be that he pay the respondent’s costs of the proceedings.   That order would normally include all costs incurred up to, and including today.  The only reason for not making such an order is the offer that was made prior to 7 October and the open offer on that date.  In my view, once the appellant decided not to prosecute his appeal, it was incumbent upon him to discontinue immediately.  One is inclined to suspect that the reason for deferring the discontinuance until 21 October was the same as that which prompted the appellant, through his counsel, to raise the timing of his suspension when he was before the Tribunal, namely the future conduct of his professional practice.  In my view, that was not a relevant consideration and in those circumstances, I am of the view that any offer to discontinue ought to have been to discontinue immediately and not at some time in the future.  It follows that the appellant should pay the respondent’s costs of the appeal up to, and including today, that is the costs of the whole of the appeal, including reserved costs.

8. As to the question of the basis upon which the costs should be paid, counsel for the respondent seeks an order for costs on an “indemnity” basis.  It is not uncommon to do so.  However, such an application implicitly assumes that there will be a difference between costs upon that basis and costs upon the usual “party and party” basis.  For my part, I am inclined to think that it is inappropriate to encourage the profession to make that assumption.

9. Where proceedings have been on foot for extended periods of time, and where lengthy hearings are involved, experience indicates that there is frequently a difference between “solicitor and client” and “party and party” costs.  However that is not necessarily the case in proceedings which are on foot for only a relatively short period of time and do not involve lengthy hearings.  This case falls into that category.  In the absence of any evidence to indicate that there is reason to believe that “party and party” costs will not adequately compensate the respondent for the costs incurred in connection with these proceedings, I order that the costs be taxed on a “party and party” basis.  I order that the appellant pay the respondent’s costs of the appeal to be taxed, including the notice of motion and reserved costs.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:            23 December 2005

Solicitor for the Applicant:	Morgan Conley
Counsel for the Respondent:	Ms E Ford
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	14 October 2005
Date of Judgment:	14 October 2005