Weeks v Commissioner of Taxation - [2013] FCAFC 78

FEDERAL COURT OF AUSTRALIA
Weeks v Commissioner of Taxation [2013] FCAFC 78

Citation: Weeks v Commissioner of Taxation [2013] FCAFC 78

Appeal from: Weeks v Commissioner of Taxation & Anor [2012] FMCA 502

Parties: CHERYL ROBYN WEEKS v COMMISSIONER OF TAXATION and COMMONWEALTH OF AUSTRALIA

File number: QUD 219 of 2012

Judges: DOWSETT, BESANKO AND ROBERTSON JJ

Date of judgment: 15 February 2013

Corrigendum 20 February 2013

Catchwords:
INDUSTRIAL LAW – appeal from Federal Magistrates Court dismissing application – where the appellant claimed declarations, compensation and pecuniary penalties for breaches of an enterprise agreement contrary to s 50 of Fair Work Act 2009 (Cth) – whether the National Program Manager did not receive notice of the dispute until 20 November 2009 – whether there was a waiver of the obligation on the National Program Manager to arrange a conference within the terms of the ATO (Executive Level 2) Agreement 2009 – whether there was a denial of procedural fairness in relation to the preparation of a Business Case – whether there was a breach of clause 5 of the ATO (Executive Level 2) Agreement 2009 – whether there was an obligation on the respondents to pay salary to the appellant when she was on leave.

Held: The appeal be dismissed. The respondents given the opportunity to consider the Court’s reasons before deciding whether to apply for costs.

Legislation:
Acts Interpretation Act 1901 (Cth) ss 28, 28A, 46
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) Sch 3 cl 2(3), Sch 16 cl 2
Fair Work Act 2009 (Cth) ss 14, 50, 545, 570
Legislative Instruments Act 2003 (Cth) s 13
Public Service Act 1999 (Cth) ss 13, 22, 33, 29,
Taxation Administration Act 1953 (Cth) ss 4, 4A
Workplace Relations Act 1996 (Cth) s 824

Cases cited:
Ainsworth v Criminal Justice Commission (1992) 175 CLR 364, cited

Annetts v McCann (1990) 170 CLR 596, cited
Metropolitan Health Service Board v Australian Nursing Federation [2000] FCA 784; 99 FCR 95, cited
Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319, cited
Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252, cited

Date of hearing: 22 November 2012

Place: Adelaide (Heard in Brisbane)

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 65

Counsel for the Appellant: The Appellant appeared in person

Counsel for the Respondents: Mr C Murdoch

Solicitor for the Respondents: Australian Government Solicitor

FEDERAL COURT OF AUSTRALIA
Weeks v Commissioner of Taxation [2013] FCAFC 78

CORRIGENDUM

On page 2 of the coversheet, in the second last row, the name “Ms M Brennan” should read “Mr C Murdoch”.

I certify that the preceding one (1) paragraph is a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justices Dowsett, Besanko and Robertson.
Associate:

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 219 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:
CHERYL ROBYN WEEKS
Appellant

AND:
COMMISSIONER OF TAXATION

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.

Continue reading Weeks v Commissioner of Taxation

Details

AGLC: Weeks v Commissioner of Taxation [2013] FCAFC 78
Case: [2013] FCAFC 78
Decision Date: 15 February 2013

CaseChat Overview and Summary

In the case of Weeks v Commissioner of Taxation, the appellant, Ms Weeks, sought declarations, compensation, and pecuniary penalties against the respondents, who were the Commissioner of Taxation and the Australian Taxation Office (ATO). The appellant argued that the respondents breached an enterprise agreement under section 50 of the Fair Work Act 2009 (Cth). The dispute was heard in the Federal Circuit Court of Australia, which had appellate jurisdiction over a decision of the Federal Magistrates Court.

The legal issues before the court included whether the National Program Manager was sufficiently notified of the dispute, whether there was a waiver of the obligation to arrange a conference within the terms of the ATO (Executive Level 2) Agreement 2009, whether there was a denial of procedural fairness in relation to the preparation of a Business Case, and whether there was a breach of clause 5 of the ATO (Executive Level 2) Agreement 2009. Additionally, the court needed to determine if there was an obligation on the respondents to pay salary to the appellant while she was on leave.

The court found that the Federal Magistrate's decision should stand. Regarding the third alleged contravention, the court held that Ms Weeks' challenge to the Federal Magistrate’s conclusion was unfounded. The court held that the appeal needed to be dismissed, and the respondents were given the opportunity to consider the court's reasons before deciding whether to apply for costs.

Consequently, the appeal was dismissed. If the respondents chose to apply for their costs of the appeal, they were required to lodge written submissions not exceeding five pages within seven days, and Ms Weeks could respond by lodging and serving written submissions not exceeding five pages within a further seven days after receiving the respondents' submissions. The orders were to be entered in accordance with Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The appeal be dismissed.

2. If the respondents seek their costs of the appeal they must lodge and serve written submissions not exceeding five pages in support of such an application within seven days and the appellant may respond by lodging and serving written submissions not exceeding five pages within a further seven days after receiving the respondents’ submissions.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The appellant’s challenge to the Federal Magistrate’s conclusion with respect to the third alleged contravention must be rejected.CONCLUSIONS The appeal must be dismissed. The respondents acknowledge that there are limits on this Court’s power to award them their costs of the appeal (FW Act s 570; Workplace Relations Act 1996 (Cth) s 824). They have asked for an opportunity to consider the Court’s reasons before deciding whether to apply for costs. We will order that if they seek their costs of the appeal they must lodge written submissions not exceeding five pages in support of such an application within seven days, and the appellant may respond by lodging and serving written submissions not exceeding five pages within a further seven days after receiving the respondents’ submissions.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:		Weeks v Commissioner of Taxation [2013] FCAFC 78
Appeal from:		Weeks v Commissioner of Taxation & Anor [2012] FMCA 502
Parties:		CHERYL ROBYN WEEKS v COMMISSIONER OF TAXATION and COMMONWEALTH OF AUSTRALIA
File number:		QUD 219 of 2012
Judges:		DOWSETT, BESANKO AND ROBERTSON JJ
Date of judgment:		15 February 2013
Corrigendum		20 February 2013
Catchwords:		INDUSTRIAL LAW – appeal from Federal Magistrates Court dismissing application – where the appellant claimed declarations, compensation and pecuniary penalties for breaches of an enterprise agreement contrary to s 50 of Fair Work Act 2009 (Cth) – whether the National Program Manager did not receive notice of the dispute until 20 November 2009 – whether there was a waiver of the obligation on the National Program Manager to arrange a conference within the terms of the ATO (Executive Level 2) Agreement 2009 – whether there was a denial of procedural fairness in relation to the preparation of a Business Case – whether there was a breach of clause 5 of the ATO (Executive Level 2) Agreement 2009 – whether there was an obligation on the respondents to pay salary to the appellant when she was on leave. Held: The appeal be dismissed. The respondents given the opportunity to consider the Court’s reasons before deciding whether to apply for costs.
Legislation:		Acts Interpretation Act 1901 (Cth) ss 28, 28A, 46 Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) Sch 3 cl 2(3), Sch 16 cl 2 Fair Work Act 2009 (Cth) ss 14, 50, 545, 570 Legislative Instruments Act 2003 (Cth) s 13 Public Service Act 1999 (Cth) ss 13, 22, 33, 29, Taxation Administration Act 1953 (Cth) ss 4, 4A Workplace Relations Act 1996 (Cth) s 824
Cases cited:		Ainsworth v Criminal Justice Commission (1992) 175 CLR 364, cited Annetts v McCann (1990) 170 CLR 596, cited Metropolitan Health Service Board v Australian Nursing Federation [2000] FCA 784; 99 FCR 95, cited Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319, cited Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252, cited
Date of hearing:	22 November 2012
Place:	Adelaide (Heard in Brisbane)
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	65
Counsel for the Appellant:	The Appellant appeared in person
Counsel for the Respondents:	Mr C Murdoch
Solicitor for the Respondents:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 219 of 2012

BETWEEN:	CHERYL ROBYN WEEKS Appellant
AND:	COMMISSIONER OF TAXATION