Federal Court of Australia

Larmar Services Pty Ltd v Commissioner of Taxation [2023] FCA 1366

ORDERS

THE COURT ORDERS THAT:

1.    The email to the Court of 7 September 2023 from the solicitors for the applicant, together with the letter of those solicitors to the Court of 2 November 2023, each sent with the approval of the solicitors for the respondent, be marked as one bundle as Exhibit A.

2.    The letter of 2 November 2023, part of Exhibit A, be deemed to be an interlocutory application by the parties jointly to set aside the Order of 13 September 2023.

3.    The Order of 13 September 2023 be set aside.

4.    The proceedings be listed for case management on 21 November 2023 at 9:30 am.

5.    Costs be reserved.

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

REASONS FOR JUDGMENT

LOGAN J:

1    The present is one of several broadly related taxation appeals instituted in the Court’s Queensland District Registry earlier this year and thereafter allocated to my docket. Other related taxation appeals are QUD 162 to QUD 166 of 2023 (inclusive) (the related taxation appeals).

2    On 7 September 2023, during my absence abroad on leave, the parties consensually sent to the Court a consent by which it was requested that the related taxation appeals be allowed on the basis of an agreed position that the assessments concerned were excessive.

3    This request was drawn to the attention of the then duty judge. For reasons which appear to be related to the hitherto grouping of the present proceeding and the related taxation appeals, both in correspondence and formal case management, one sequel to that request, which was not sought by the parties in that request, was that an order was made in the present proceeding by the duty judge on 13 September 2023. That order, purportedly by consent, allowed the present appeal in full and remitted the matter to the respondent for the making of consequential amended assessments.

4    Although one might have hoped, in light of the hitherto grouping, that the exclusion of the present proceeding would have been expressly highlighted in the correspondence of 7 September 2023, it is clear from the proceeding numbers in the heading to that correspondence, and confirmed by a letter sent to the Court by the solicitors for the applicant on 2 November 2023, with the express prior approval of the solicitors for the respondent, that there was no such consent.

5    The parties have jointly requested the Court to vacate the order of 13 September 2023. It is desirable that reasons for judgment be published for the orders which I propose to make in response to that request.

6    The parties cite in aid of their request r 39.05(e) (an order does not reflect the intention of the Court) and (f) (the party in whose favour it was made consents). I agree that these rules are engaged in the circumstances. Also in the circumstances, to these might be added as a source of power, in my view, r 39.05(g) (there is a clerical mistake in a judgment or order) and (h) (there is an error arising in a judgment or order from an accidental slip or omission).

7    It appears that a sequel to this slip was that, contrary to the position contemplated by an order which I made on 1 June 2023, the present proceeding was not listed for case management, as it otherwise would have been, on 16 October 2023.

8    I am certain that these errors would not have occurred had the proceedings remained grouped and the consensual finalisation in respect of some of them been dealt with in open court at the contemplated case management hearing. There is a convenience and related costs saving, contemplated by the order of 1 June 2023, about dealing with certain procedural steps on the papers. But it needs to be remembered by the parties that so doing eliminates spontaneity of exchange between the parties or their representatives and the Court. That makes it more than usually important that those seeking, consensually, the making of orders on the papers provide a detailed explanation for the orders sought, especially where those proposed orders do not dispose of a group of related proceedings hitherto managed together. Further, I cannot help but think, in light of now lengthy experience as counsel and then judge in the practices of this Court over time, that occasion for these types of error would have been reduced, if not eliminated, if the Queensland resident judges of this Court, including a local duty judge, enjoyed, as once they did, a fully resourced District Registry, which had the benefit of local registrars who were actively engaged with the parties and chambers in cases in that registry on a given judge’s docket. It is a misuse of judges’ personal staff to divert them into registry tasks.

9    However that may be, it is desirable that this slip be corrected promptly and with minimal expense to the parties. I therefore propose to deem the letter of 2 November 2023 to be an interlocutory application seeking the setting aside of order of 13 September 2023, to set aside that order and to reserve costs. There is a related need to restore the proceeding to the list for further case management. I shall therefore appoint a date for that to occur.

Associate:    

Dated:    8 November 2023