FEDERAL COURT OF AUSTRALIA

Deputy Commissioner of Taxation v Oxenford Corporation Pty Limited

[2011] FCA 96

FEDERAL COURT OF AUSTRALIA

Deputy Commissioner of Taxation v Oxenford Corporation Pty Limited

[2011] FCA 96

CORRIGENDUM

1.    On the Cover sheet, in the table of appearances against Counsel for Defendant, delete the words “The Respondent did not appear” and replace with the words “The Defendant did not appear.

2.    On the Orders page, delete the words “the respondent pay the appellant’s costs of the proceedings” and replace with the words “the defendant pay the plaintiff’s costs of the proceedings”.

Associate:

Dated:    29 March 2011

THE COURT ORDERS THAT:

1.    The respondent pay the appellant’s costs of the proceedings.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1    Counsel for the Deputy Commissioner draws my attention to the decision of Logan J in Deputy Commissioner of Taxation v Clear Blue Developments Pty Ltd (No 2) [2010] FCA 1224. In that case, his Honour declined to make an order for lump sum costs in favour of the Deputy Commissioner in similar proceedings upon the basis that whoever appeared on behalf of the Deputy Commissioner was, in effect, an “in house” lawyer. His Honour considered that aspects of the Legal Profession Act 2007 (Qld) posed an obstacle to such an order.

2    In the present case, the Commissioner has not served notice of his intention to ask for a lump sum order, nor has he served the material upon which he relies in support of the application. In my view, he should have done so. However, in the present circumstances, I will give liberty to the liquidator to apply should he be so advised to set aside any order for costs which I may make.

3    I should say something about the decision of Logan J and why I propose to make an order which may be inconsistent with his Honour’s decision. The decision is, itself, inconsistent with observations made by the Court of Appeal of Queensland in Cannon Street Proprietary Limited v Karedis (2006) 226 FLR 273. That Court saw no basis for refusing an application for costs by a practitioner who was on the High Court roll but not on the Queensland Supreme Court roll in a matter which was within federal jurisdiction conferred upon the Supreme Court of Queensland. Their Honours considered that to do so would have been to derogate from the right of appearance conferred by the Judiciary Act 1903 (Cth). Similarly, in University of Western Australia v Gray (No 25) [2009] FCA 1227, Barker J considered that he had discretion to order costs in favour of an employed practitioner.

4    Logan J did not have the benefit of a controverter in the matter which was before him. I have also been deprived of that advantage. In the circumstances, I would prefer to avoid the appearance of arbitrating between the two decisions. Further, it seems inappropriate so to do in the absence of a controverter. I am also not entirely sure that the issue to which Logan J adverted arises in the present case.

5    The power to award costs is contained to s 43 of the Federal Court of Australia Act 1976 (Cth). I see no reason, on the evidence before me, to hold that there is any impediment to the Commissioner recovering costs simply because of the source of legal advice and his choice as to representation. I see no reason to investigate the way in which he has sought such advice and representation. If it were necessary to decide, I would presently be inclined to adopt the approach taken by Barker J and by the Queensland Court of Appeal. However, it is not necessary for me to take that matter any further.

Associate:

Dated:    4 February 2011