Mulherin v Commissioner of Taxation [2012] FCA 1488

FEDERAL COURT OF AUSTRALIA

Mulherin v Commissioner of Taxation [2012] FCA 1488 Citation: Mulherin v Commissioner of Taxation [2012] FCA 1488

Parties: HENRY MULHERIN v COMMISSIONER OF TAXATION

File number: NSD 1384 of 2012

Judge: LOGAN J

Date of judgment: 28 November 2012

Catchwords: ADMINISTRATIVE LAW – objection to competency of appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) – concession by respondent that proposed amended notice of appeal raises at least one question of law – not a matter for objection to competency in light of concession – leave to file an amended notice of appeal

Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44

Date of hearing: 28 November 2012

Place: Brisbane

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 8

Counsel for the Applicant: Mr F Harrison QC

Solicitor for the Applicant: Irish Bentley Lawyers

Counsel for the Respondent: Ms KA Mellifont SC

Solicitor for the Respondent: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1384 of 2012

BETWEEN: HENRY MULHERIN

Applicant

AND: COMMISSIONER OF TAXATION

Respondent

JUDGE: LOGAN J DATE OF ORDER: 28 NOVEMBER 2012 WHERE MADE: BRISBANE

THE COURT ORDERS THAT:

1. Leave to the applicant to file an amended Notice of Appeal in terms of exhibit 1 in today's scheduling conference is granted. 2. The application for the striking out of the Notice of Appeal be dismissed. 3. The applicant is to pay the respondent's costs thrown away by the grant of leave to amend, including in that regard, the costs of and incidental to the application for the striking out of the notice of appeal, not earlier provided for by the order of 9 November 2012. 4. Save as otherwise provided by this order, the costs of today's adjourned scheduled conference are reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011