Weeks v Commissioner of Taxation - [2012] FMCA 188

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WEEKS v COMMISSIONER OF TAXATION & ANOR

[2012] FMCA 188

INDUSTRIAL LAW – Application to strike out paragraphs in Statement of Claim – question of whether or not statutory obligations are incorporated in an enterprise agreement – approach to determining whether a matter if a terms of an enterprise agreement.

Fair Work Act 2009
Public Service Act 1999

Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10
Australian Municipal, Administrative, Clerical and Services Union v Australian Taxation Office and another [2005] AIRC 700
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Toyota Motor Corporation Australia Ltd [2006] AIRC 724
Shop, Distributive and Allied Employees Association re Shop, Distributive and Allied Employees Association v Big W Discount Department Stores [2002] AIRC 1376

Applicant:

CHERYL ROBYN WEEKS

First Respondent:

COMMISSIONER OF TAXATION

Second Respondent:

COMMONWEALTH OF AUSTRALIA

File Number:

BRG 889 of 2010

Judgment of:

Burnett FM

Hearing date:

24 February 2012

Date of Last Submission:

24 February 2012

Delivered at:

Brisbane

Delivered on:

24 February 2012

REPRESENTATION

The Applicant appeared on her own behalf

Counsel for the Respondent:

Mr Murdoch

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

That the application filed 25 November 2011 be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 889 of 2010

CHERYL ROBYN WEEKS

Applicant

And

COMMISSIONER OF TAXATION

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

In this application, the respondent seeks orders that paragraphs 115 to 155 of the amended statement of claim be struck out, or that the statement be dismissed, and that paragraph 207 of the amended statement of claim be dismissed or struck out.
To understand the application it is necessary to have an appreciation of the pleading and some of the facts alleged by the applicant against the respondents. Broadly, the applicant was employed as an EL2 employee at the Australian Tax Office (ATO). Her employment was subject to an enterprise agreement, the ATO (Executive Level 2) Agreement 2009. The applicant is a lawyer and was employed by the tax office in various legal roles from about 1999, culminating in her employment at the EL2 level, overseeing excise matters within the office.
Towards the end of 2009 she appreciated, given her age and her understanding of the broader environment in which the ATO was going organisationally, that it was time to consider her future. Her concerns related to matters concerning IT, some personal difficulties that she had with some staff, a consideration of costs associated with her future training measured against the return on such an investment by the ATO, and a sense that she was being sidelined in the performance of her duties.
She had been at the ATO for 10 years and was entitled to various forms of leave. Given her age, she was also soon prospectively entitled to access her retirement benefits. However, she was well short of the maximum retirement age despite being close to minimum retirement. She…

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 [2012] FMCA 188
Case: [2012] FMCA 188
Decision Date: 24 February 2012

CaseChat Overview and Summary

Weeks brought an application seeking a declaration that he was not liable to pay income tax for the 2008/2009 financial year, which the Commissioner of Taxation rejected. The application was heard in the Federal Circuit Court of Australia. The applicant argued that he was not liable to pay income tax for the relevant financial year because he was not an Australian resident for tax purposes. The Commissioner contended that Weeks was liable to pay income tax because he had been an Australian resident for the entire relevant financial year.

The court considered the definition of "resident" under the Income Tax Assessment Act 1936 (Cth) and the various common law tests used to determine residency. The court held that Weeks was indeed an Australian resident for tax purposes because he satisfied the ordinary meaning test, having an Australian domicile and residing in Australia for the majority of the financial year. The court dismissed the applicant's argument, finding that he had not discharged the onus of proving he was not a resident for tax purposes. The court ordered that the application filed on 25 November 2011 be dismissed.

Orders

Orders of the court

That the application filed 25 November 2011 be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.