Taxation, Commissioner of v MacPherson

[1998] QCA 256

[1998] QCA 256

COURT OF APPEAL

McMURDO P THOMAS JA MACKENZIE J

CA No 153 of 1998

COMMISSIONER OF TAXATION BY KEVIN MARK THOMPSON

v.

GRAHAM JOHN MacPHERSON

(Applicant)

CA No 157 of 1998

COMMISSIONER OF TAXATION BY LEIGHTON DAVID EVANS

v.

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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