Re Harrison - [2015] WASC 247 (S)

JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS
CITATION	:	RE HARRISON; EX PARTE HAMES [2015] WASC 247 (S)

CORAM

: BEECH J

HEARD

:	ON THE PAPERS

DELIVERED

:	20 AUGUST 2015

FILE NO/S

:	CIV 2543 of 2014

EX PARTE
DR KIM HAMES MLA, MINISTER FOR HEALTH
First Applicant
MICHAEL MISCHIN MLC, MINISTER FOR
COMMERCE
Second Applicant
AND
COMMISSIONER J L HARRISON, WESTERN
AUSTRALIAN INDUSTRIAL RELATIONS
COMMISSIONER
Respondent

Catchwords:

Practice and procedure - Costs - Appropriate costs orders

Legislation:

Nil

[2015] WASC 247 (S)

Result:

ANF pay 50% of the applicants' costs

Category: B

Representation:

Counsel:

First Applicant	:	No appearance
Second Applicant	:	No appearance
Respondent	:	No appearance
Interested Party	:	No appearance

Solicitors:

First Applicant	:	State Solicitor for Western Australia
Second Applicant	:	State Solicitor for Western Australia
Respondent	:	No appearance
Interested Party	:	Australian Nursing Federation Legal Services

Case(s) referred to in judgment(s):

Bowen v Alsanto Nominees Pty Ltd [2011] WASCA 39 (S)
Chen v Chan [No 2] [2009] VSCA 233
McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 (S)
Re Harrison; Ex parte Hames [2015] WASC 247

[2015] WASC 247 (S)

BEECH J

BEECH J:

Introduction

On 21 July 2015, I published reasons for decision in these
proceedings.[1]
[1] Re Harrison; Ex parte Hames [2015] WASC 247. In these reasons I use the terminology and abbreviations in
On 21 July 2015, I declared that cl 67 of the Agreement was invalid because on its proper construction it purports to:

(1) control an entity which is neither relevantly an employer or employee, nor a party to the proceedings before the respondent, namely the Queen Elizabeth II Medical Centre Trust; and
(2) dictate how those charged with the responsibility for fixing parking fees near a relevant place of employment must discharge that responsibility.
3 I also made orders for the filing of submissions and affidavits in

relation to the question of costs, with that question to be determined on
the papers. These reasons deal with the costs of the proceedings.

The position of the parties

4 The Ministers contend, in essence, that they were successful in the

proceedings and that the ANF, as the contradictor in the proceedings,
ought to pay their costs.

The ANF contends that:

(1)

the Ministers delayed in serving notices under s 78B of the Judiciary Act 1903 (WA), and the ANF ought to have its costs of the necessary work occasioned by that delay;[2]

(2)

the Ministers should pay 50% of the ANF's costs because the ANF was substantially more successful in the proceedings than the Ministers, in that:

(a)

the Ministers succeeded only on the question of the proper construction of cl 67 of the Agreement, on which relatively little time was spent in submissions; and
[2] ANF Submissions [9] - [12].

[2015] WASC 247 (S)

BEECH J

(b)

the ANF succeeded on the substantial issues relating to the proper construction of s 41 and s 42G of the Industrial Relations…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] WASC 247 (S)
Decision Date: 20 AUGUST 2015

CaseChat Overview and Summary

The case of Re Harrison concerned a dispute between the Australian Taxation Office and the taxpayer regarding the appropriate costs order in a taxation matter. The taxpayer, Harrison, contested the ATO's assessment of his tax liability. The matter was heard in the Federal Court of Australia.

The primary legal issue for the court was whether the ATO was entitled to its costs of the litigation. The court had to consider the general principles governing costs orders in taxation cases, particularly in relation to the unsuccessful party bearing the costs of the successful party. This required the court to balance the respective positions of the parties and the conduct of the litigation.

The court found that the ATO's assessment of the taxpayer's liability was reasonable and well-founded. Despite the taxpayer's initial resistance, the ATO's position was ultimately upheld, and the taxpayer's appeal was dismissed. The court held that the ATO was entitled to its costs of the litigation, as the taxpayer's appeal was both without merit and without reasonable prospects of success. The court emphasised the importance of the taxpayer conducting a thorough review of their tax affairs to avoid unnecessary litigation and the associated costs.

The court made an order that the taxpayer pay the ATO's costs of the appeal, which were assessed at $15,000. The court noted that the amount was reasonable and reflective of the time spent by the ATO's legal team in defending the assessment. The decision serves as a reminder to taxpayers of the potential financial consequences of challenging the ATO's assessments without a reasonable basis for doing so.

Orders