Tey v Commissioner of Taxation (No 2)

[2007] FCA 1083

FEDERAL COURT OF AUSTRALIA

Tey v Commissioner of Taxation (No 2) [2007] FCA 1083

KOK YONG TEY v COMMISSIONER OF TAXATION
WAD24 OF 2007

GILMOUR J
6 JULY 2007
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD24 OF 2007

BETWEEN:	KOK YONG TEY Applicant
AND:	COMMISSIONER OF TAXATION Respondent

JUDGE:	GILMOUR J
DATE OF ORDER:	6 JULY 2007
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The applicant pay the respondent’s costs of the application to be taxed.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD24 OF 2007

BETWEEN:	KOK YONG TEY Applicant
AND:	COMMISSIONER OF TAXATION Respondent

JUDGE:	GILMOUR J
DATE:	6 JULY 2007
PLACE:	PERTH

REASONS FOR JUDGMENT

1. On 18 June 2007 I dismissed the applicant’s application for an order for the extension of time to file and serve a notice of appeal.

2. At that time I adjourned the question of costs to enable the applicant to obtain legal advice and to file, if she so wished, any materials in support of her submission that I should not order her to pay the costs of the respondent.

3. The applicant has sworn and filed an affidavit dated 5 July 2007.  In this she, in effect, seeks to reargues her application on the merits, taking issue with the order of dismissal made by me on 18 June 2007.  Before me today in oral submissions she has repeatedly attempted to do that also.  Such submissions are obviously irrelevant to the question of costs which is the only outstanding issue in respect to her application. 

4. In her affidavit she deposes to anticipating that her income for the financial year 2006/07 will be below $10,000 gross.  This has no relevant bearing on any costs order which I might make today. 

5. As the respondent submits, and I accept, in the absence of special circumstances, costs follow the event and any costs order should reflect the degree of success attained: Hughes v Western Australia Cricket Association (1986) ATPR 40-748 at 48,136.

6. In my opinion, there are no special circumstances relevant to the applicant’s case on the question of costs.  I find the applicant’s explanation for her delay in filing a notice of appeal to be unsatisfactory.  I also find in any event that her several proposed grounds of appeal have no prospect of success.  

7. In those circumstances the applicant should be ordered to pay the respondent’s costs of the application to be taxed and I so order.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

Associate:

Dated:        25 July 2007

The Applicant appeared in person:
Counsel for the Respondent:	Ms F Humphries
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	6 July 2007
Date of Judgment:	6 July 2007