Weeks v Commissioner of Taxation (No 2)

[2013] FCAFC 22

FEDERAL COURT OF AUSTRALIA

Weeks v Commissioner of Taxation (No 2) [2013] FCAFC 22

Citation:		Weeks v Commissioner of Taxation (No 2) [2013] FCAFC 22
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:		27 February 2013
Corrigendum		12 March 2013
Catchwords:		COSTS – industrial law – whether appeal instituted without reasonable cause – whether pursuit of appeal an unreasonable act
Legislation:		Workplace Relations Act 1996 (Cth) s 824
Cases cited:		Construction, Forestry, Mining and Energy Union v Clarke (2008) 170 FCR 574, [2008] FCAFC 143 Khiani v Australian Bureau of Statistics [2011] FCAFC 109 Nimmo, in the matter of an application for an inquiry relating to an election for an office in the Australian Education Union (NT Branch) (No 2) [2011] FCA 728 The Queen v Moore; Ex parte Federated Miscellaneous Workers’ Union of Australia (1978) 140 CLR 470 Thompson v Hodder (1989) 21 FCR 467 Weeks v Commissioner of Taxation [2013] FCAFC 78
Date of hearing:	Determined on the papers
Date of last submissions:	22 February 2013
Place:	Brisbane
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	11
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 (No 2) [2013] FCAFC 22

CORRIGENDUM

1The date of last submissions was 25 February 2013.

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

Associate:

Dated:       12 March 2013

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
First Respondent

COMMONWEALTH OF AUSTRALIA
Second Respondent

JUDGES:	DOWSETT, BESANKO AND ROBERTSON JJ
DATE OF ORDER:	27 FEBRUARY 2013
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The respondents’ application for costs be dismissed.

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

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
First Respondent

COMMONWEALTH OF AUSTRALIA
Second Respondent

JUDGES:	DOWSETT, BESANKO AND ROBERTSON JJ
DATE:	27 FEBRUARY 2013
PLACE:	BRISBANE

REASONS FOR JUDGMENT

THE COURT

1. Pursuant to the leave granted when we made orders in this matter on 15 February 2013, see Weeks v Commissioner of Taxation [2013] FCAFC 78, the respondents have applied for their costs of the appeal and have lodged written submissions dated 22 February 2013 in support of that application.

2. The respondents put their application on the basis that s 824 of the Workplace Relations Act 1996 (Cth) applies but, they submit, the appellant instituted the appeal without reasonable cause and the appellant’s pursuit of the appeal constituted an unreasonable act on the appellant’s part.

3. Section 824 provides relevantly as follows:

   Costs only where proceeding instituted vexatiously etc.

   (1)A party to a proceeding (including an appeal) in a matter arising under this Act (other than an application under section 663) must not be ordered to pay costs incurred by any other party to the proceeding unless the first-mentioned party instituted the proceeding vexatiously or without reasonable cause.

   (2)Despite subsection (1), if a court hearing a proceeding (including an appeal) in a matter arising under this Act (other than an application under section 663) is satisfied that a party to the proceeding has, by an unreasonable act or omission, caused another party to the proceeding to incur costs in connection with the proceeding, the court may order the first-mentioned party to pay some or all of those costs.

   Respondents’ submissions

4. In their written submissions the respondents refer to Construction, Forestry, Mining and Energy Union v Clarke (2008) 170 FCR 574, [2008] FCAFC 143 at [28]-[29]; Khiani v Australian Bureau of Statistics [2011] FCAFC 109; and Nimmo, in the matter of an application for an inquiry relating to an election for an office in the Australian Education Union (NT Branch) (No 2) [2011] FCA 728 at [28]-[30].

5. The respondents submit that the appellant’s case on appeal, in respect of all claimed contraventions of the Agency Agreement, was objectively weak.

   Consideration

6. As the Full Court said in Thompson v Hodder (1989) 21 FCR 467 at 471, the words of the Act must be allowed to speak for themselves, in the sense, we would add, that it may be a distraction to substitute different words for those of s 824. Nevertheless the expression, “without reasonable cause”, may describe a proceeding that is capable of being disposed of summarily. It is therefore appropriate to ask whether the present appeal had no substance in fact and law.

7. Although the appeal failed, that does not mean that it was commenced without reasonable cause: The Queen v Moore; Ex parte Federated Miscellaneous Workers’ Union of Australia (1978) 140 CLR 470 at 473 per Gibbs J.

8. In our opinion, as a consideration of our reasons for judgment shows, the appeal had some substance, and was arguable, whether considered as a whole or in relation to each of the three grounds advanced by the appellant.

9. We do not agree, therefore, that the appeal was instituted without reasonable cause. This is so even though we did not need to hear oral submissions on behalf of the respondents in relation to the first of the three questions, concerning the asserted failure to arrange a conference within the terms of cl 107.8 of the Agency Agreement.

10. It is not necessary in the present case to explore the distinction between ss (1) and (2) of s 824. The matters put by the respondents mean that, in this case, because we have not concluded that the appeal was instituted without reasonable cause within the meaning of s 824(1), it follows that we are not satisfied that the appellant has acted unreasonably within s 824(2) in pursuing the appeal.

11. The respondents’ application for their costs of the appeal does not fit within the circumstances of s 824 and that section therefore operates to deprive the Court of the power it otherwise would have to make a costs order in their favour as successful respondents.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Dowsett, Besanko and Robertson.

Associate:

Dated:       27 February 2013