McGlinn v Commissioner of Taxation (No 2) [2018] FCA 1503

FEDERAL COURT OF AUSTRALIA

McGlinn v Commissioner of Taxation (No 2) [2018] FCA 1503 File number: WAD 171 of 2016

Judge: STEWARD J

Date of judgment: 9 October 2018

Catchwords: PRACTICE AND PROCEDURE – remittal to Commissioner of Taxation – evidence to be considered on remittal – costs – where 28 affidavits filed by the applicant were not read at trial

Legislation: Income Tax Assessment Act 1936 (Cth) s 170 Income Tax Assessment Act 1997 (Cth) ss 35-10, 35-55

Cases cited: Harman v Secretary of State for the Home Department [1983] 1 AC 280

Date of hearing: 25 July 2018

Date of last submissions: 7 September 2018

Registry: Western Australia

Division: General Division

National Practice Area: Taxation

Category: Catchwords

Number of paragraphs: 10

Counsel for the Applicant: Mr J Fickling

Solicitor for the Applicant: Hayes Legal

Counsel for the Respondent: Ms C Thompson

Solicitor for the Respondent: Australian Government Solicitor

ORDERS WAD 171 of 2016

BETWEEN: ROBYN MCGLINN Applicant

AND: COMMISSIONER OF TAXATION Respondent

JUDGE: STEWARD J DATE OF ORDER: 9 October 2018

THE COURT ORDERS THAT:

1. The application be allowed and the matter be remitted to the respondent for reconsideration in accordance with law. 2. The respondent pay the applicant's costs of and incidental to the proceedings save that: (a) the respondent shall pay only 50% of the costs thrown away by the applicant in preparing the 20 affidavits upon which she intended to rely as from 28 November 2017; (b) the respondent shall not pay the costs thrown away by the applicant in preparing the other eight affidavits filed and served in the proceeding; in each case, to be assessed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.