Taxation, Commissioner of v MacPherson

[1998] QCA 256

COURT OF APPEAL

McMURDO P THOMAS JA MACKENZIE J

CA No 153 of 1998

COMMISSIONER OF TAXATION BY KEVIN MARK THOMPSON

GRAHAM JOHN MacPHERSON

(Applicant)

CA No 157 of 1998

COMMISSIONER OF TAXATION BY LEIGHTON DAVID EVANS

GRAHAM JOHN MacPHERSON

(Applicant)

BRISBANE
..DATE 04/08/98
040898 T5/JB M/T COA181/98

THOMAS JA: This is an application for leave to appeal from a decision in the appellate jurisdiction of the District Court. We cannot say at this stage that the result, which was a denial of costs to a successful defendant at the end of a taxation prosecution in the Magistrates Court, was plainly right.

In short, the ultimate correctness of the decision is arguable and the preliminary question arises as to the nature of the discretion that exists in the award of such costs. The question arises whether the discretion is limited to the short statement in section 8ZN of the Taxation Administration Act or whether section 158A of the Justices Act still operates in such cases. In other words, the question arises whether enforcement proceedings brought under part 3 of the Taxation Administration Act are covered by section 158A of the Justices Act.

To decide that question, there appears to be a
constitutional issue involved under section 109 of the
Commonwealth Constitution. It is noted that the Attorneys-
General have been advised and that at this stage they do not
intend to intervene in these proceedings.

These circumstances are sufficient to justify a grant of leave to appeal.

The order of the Court will be that leave is granted to
appeal against the order of Robin DCJ pursuant to notice of
040898 T5/JB M/T COA181/98
appeal filed on 13 May 1998. It may be added that we do not
propose to limit the issues on the appeal as contended on
behalf of the Commissioner by Mr Jackson QC. The costs of

today should be costs in the cause.

THE PRESIDENT: The order of the Court is as stated by Mr

Justice Thomas.

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CaseChat Overview and Summary

The applicants in these consolidated appeals, Graham John MacPherson, seek leave to appeal a decision of the District Court of Queensland, which had declined to award costs to MacPherson following his successful defence in a taxation prosecution in the Magistrates Court. The applicants argue that the District Court erred in its assessment of the discretion available to award costs in such cases. Specifically, the applicants contend that the discretion to award costs should not be limited to the statutory provisions in section 8ZN of the Taxation Administration Act, but should also encompass the general principles outlined in section 158A of the Justices Act. The applicants posit that enforcement proceedings under part 3 of the Taxation Administration Act should be subject to the broader discretionary authority provided by section 158A of the Justices Act. This raises a constitutional issue under section 109 of the Commonwealth Constitution, as the applicants seek to determine whether the federal statute preempts state law in this context.

The primary legal issue before the Court of Appeal was whether the discretion to award costs in taxation prosecutions, where the defendant prevails, is confined to the statutory provisions in section 8ZN of the Taxation Administration Act, or whether it includes the discretionary authority outlined in section 158A of the Justices Act. The Court had to consider whether enforcement proceedings under the federal Taxation Administration Act fall within the scope of the state-based Justices Act. Additionally, the Court needed to address whether there is a constitutional conflict between state and federal laws, as provided under section 109 of the Commonwealth Constitution.

The Court of Appeal found that the applicants had presented a prima facie case that the decision of the District Court was arguable. The Court highlighted that the ultimate correctness of the District Court's decision was indeed debatable, given the conflicting statutory provisions and the potential constitutional implications. The Court also noted that the Attorneys-General had been consulted and had no intention to intervene in these proceedings at the time. The Court concluded that the circumstances justified granting leave to appeal. The Court of Appeal ruled that leave to appeal should be granted and did not intend to limit the issues that would be addressed on appeal. The Court also determined that the costs of the appeal hearing should be considered costs in the cause.

The Court of Appeal ordered that leave to appeal the District Court's decision be granted. The Court directed that the costs of the appeal hearing would be considered costs in the cause. The Court did not intend to restrict the scope of issues to be addressed during the appeal.

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

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Legal Principle Established