Keen v Telstra Corporation Limited [2006] FCA 834

FEDERAL COURT OF AUSTRALIA

Keen v Telstra Corporation Limited [2006] FCA 834 ADMINISTRATIVE LAW – jurisdictional error – taxation of costs – nature of review under s 69A Administrative Appeals Tribunal Act 1975 (Cth) – whether there exists a strong presumption in favour of the correctness of the decision from which the appeal was brought – AAT should give the correct and preferable decision on the material before it ADMINISTRATIVE LAW – jurisdictional error – taxation of costs – nature of review under s 67 Safety Rehabilitation and Compensation Act 1988 (Cth) – whether second proceedings arising from the same factual matrix incidental to initial proceedings – an administrative decision involving jurisdictional error is no decision in law – where different interpretations exists an instrument should be interpreted so as to make it within power – ut res magis valeat quam pereat COSTS – goods and services tax – Federal Court Rules O 62 r 12 – scale of costs allowed for GST – GST not recoverable in addition to costs awarded Held: the Tribunal erred by failing to conduct a review under s 69A of the AAT Act on the basis of arriving at the correct and preferable decision; the Tribunal was correct in determining that the first Tribunal's decision was made without jurisdiction with respect to the 2002 proceedings; the Tribunal was correct in finding that Telstra was not liable to pay a sum in respect of GST in the amount of costs payable to Ms Keen under the first Tribunal's order for costs. A New Tax System (Goods and Services Tax) Act 1999 (Cth) Administrative Appeals Tribunal Act 1975 (Cth) ss 3, 69A Federal Court Rules O 62 r 12 Law and Justice Legislation Amendment Act (No 1) 1995 (Cth) Safety Rehabilitation and Compensation Act 1988 (Cth) ss 4, 64, 67

Goods and Services Tax Ruling (GSTR 2001/4) Airservices Australia v Canadian Airlines International Ltd (2000) 202 CLR 133 cited Attorney-General (NSW) v Stocks and Holdings (Constructors) Pty Ltd (1970) 124 CLR 262 cited Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621 cited Collins v Military Rehabilitation and Compensation Commission (2005) 147 FCR 570 applied In re Florence Land and Public Works Company; Ex parte Moor (1878) 10 Ch D 530 cited Merringtons Pty Ltd v Luxottica Retail of Australia Pty Ltd (unreported, Supreme Court of Victoria, 16 June 2006) discussed Minister for Immigration and Multicultural and Indigenous Affairs v Bhardwaj (2002) 209 CLR 597 applied Nominal Defendant v GLG Australia Pty Ltd (2006) 225 ALR 643 cited Plaintiff S157/2001 v The Commonwealth (2003) 211 CLR 476 cited Seyffer v Adamson (2001) 10 BPR 19,349 referred to The Queen v Portus; Ex parte City of Perth (1973) 129 CLR 312 cited Thornton v Apollo Nominees Pty Limited (2005) 59 ATR 244 discussed Widgee Shire Council v Bonney (1907) 4 CLR 977 cited Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 cited LA-RAINE LESLEY KEEN v TELSTRA CORPORATION LIMITED NSD 2528 OF 2005 RARES J 4 JULY 2006 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA