Day v Commissioner of Taxation [2006] FCA 154

FEDERAL COURT OF AUSTRALIA

Day v Commissioner of Taxation [2006] FCA 154 SHANE DAY v COMMISSIONER OF TAXATION ACD 4 OF 2003 MADGWICK J 14 FEBRUARY 2006 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY ACD 4 OF 2003

DISTRICT REGISTRY

BETWEEN: SHANE DAY

APPLICANT

AND: COMMISSIONER OF TAXATION

RESPONDENT

JUDGE: MADGWICK J

DATE OF ORDER: 14 FEBRUARY 2006

WHERE MADE: SYDNEY

THE COURT ORDERS AND DECLARES THAT: 1. As to the amount of $4,266.73, order number 3 made by Justice Finn on 5 December 2003 in Federal Court proceedings number A4 of 2003 has not been complied with. 2. As to the balance, should events prove that the applicant is out of pocket more or less than the said amount of $4,266.73, the parties have liberty to apply. 3. The respondent is subrogated to, and at its own expense may exercise in the name of the applicant, all of his legal and equitable remedies against Alan Powrie and A2M Pty Limited trading as Powrie Partners. 4. The applicant is liable to render to the respondent all reasonable assistance to enable the respondent so to proceed, should it be so advised. 5. By consent, there will be no order as to costs.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY ACD 4 OF 2003

DISTRICT REGISTRY

BETWEEN: SHANE DAY

APPLICANT

AND: COMMISSIONER OF TAXATION

RESPONDENT

JUDGE: MADGWICK J

DATE: 14 FEBRUARY 2006

PLACE: SYDNEY

REASONS FOR JUDGMENT HIS HONOUR: 1 This is an unfortunate matter. 2 The applicant was an officer of the Commonwealth who had a dispute with the respondent. He apparently sought legal advice from a Mr Powrie, a solicitor in the Australian Capital Territory. Mr Powrie practised as such under the business name Powrie & Co Barristers and Solicitors. Mr Powrie also was associated with an entity known as Powrie Partners. That is the business name of a company, A2M Pty Limited. At relevant times, Mr Powrie was the sole director and the secretary of that company. Mr Powrie procured the applicant to engage Powrie Partners to give him 'general Taxation and Business advice' and Mr Day authorised 'Alan Powrie, Barrister and Solicitor, Registered Tax Agent': 'To act on [his] behalf, and to seek relevant information about [his] commercial and taxation affairs, from the Australian Taxation Office ... and banking and financial institutions...' 3 Mr Powrie undertook legal work for the applicant in connection with the dispute including initiating proceedings in this Court. It seems that, as between the applicant and Mr Powrie, Mr Powrie, in his emanation as Powrie & Co., billed Powrie Partners for the legal