Federal Court Denies Joining Spouse in Tax Appeal

OUTCOME: Dismissed

Federal Court of Australia

[NAME] v Commissioner of Taxation [2024] FCA 524 Appeal from: [NAME] v Federal Commissioner of Taxation [2024] AATA 245

File number: QUD 162 of 2024

Judgment of: LOGAN J

Date of judgment: 9 May 2024

Catchwords: PRACTICE AND PROCEDURE – where the applicant appeals from a decision from the Administrative Appeals Tribunal (Tribunal) to affirm the decision of the respondent to reject the applicant's objections to the assessment of his taxation liability – where the applicant applies for leave to join his wife as a party to the proceeding – where the applicant's wife was not a party to the Tribunal proceedings and is not subject to any taxation assessments in issue – where substance of interlocutory application is for the applicant's wife to represent him – where wife permitted to act as a McKenzie friend – application dismissed INCOME TAX – where the applicant appeals from a decision from the Administrative Appeals Tribunal (Tribunal) to affirm the decision of the respondent to reject the applicant's objections to the assessment of his taxation liability – where the applicant applies for leave to join his wife as a party to the proceeding – where the applicant's wife was not a party to the Tribunal proceedings and is not subject to any taxation assessments in issue – where substance of interlocutory application is for the applicant's wife to represent him – where wife permitted to act as a [NAME] friend – application dismissed

Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44 Taxation Administration Act 1953 (Cth)

Cases cited: McKenzie v McKenzie [1971] P 33

Division: General Division

Registry: Queensland

National Practice Area: Taxation

Number of paragraphs: 7

Date of hearing: 9 May 2024

Counsel for the Applicant: [redacted]

Counsel for the Respondent: [redacted]

Solicitor for the Respondent: [redacted]

BETWEEN: [APPELLANT] Applicant

AND: COMMISSIONER OF TAXATION Respondent

order made by: LOGAN J DATE OF ORDER: 9 MAY 2024

THE COURT ORDERS THAT:

1. The interlocutory application filed on 3 May 2024 be dismissed.

2. The notice of objection to competency be heard together with the appeal in Perth on 28 June 2024 at 10:15am (Western Australia time).

3. As to that hearing, appearance by a party is, subject to this order, to be in person. As to the applicant, leave be granted to appear via audio-visual link, providing that such link is available and rehearsed in advance with the registry as to its technical feasibility.

4. The respondent prepare, file and serve an indexed and paginated application book on or before 24 May 2024. Any dispute as to the contents of that application book be resolved, in the first instance, by a Registrar.

5. The applicant file and serve on or before 14 June 2024 an outline of submissions not more than 12 pages addressing: (a) the competency of the appeal; and (b) any questions of law raised by the appeal.

6. The respondent file and serve on or before 25 June 2024 an outline of submissions not more than 12 pages addressing: (a) the competency of the appeal; and (b) any questions of law raised by the appeal, together with a book of authorities.

7. There be liberty to apply.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LOGAN J: 1 By an interlocutory application filed on 3 May 2024, the applicant, Mr [APPELLANT], sought the joinder of his wife, Mrs [APPELLANT] (Mrs [NAME]), as a party to the proceedings. The proceedings are an appeal, or at least purported appeal, under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) against a decision given by the Administrative Appeals Tribunal (Tribunal) on 26 February 2024, upon a review of an objection decision under the Taxation Administration Act 1953 (Cth). The parties to that review were Mr [NAME] and the Commissioner of Taxation. Mrs [NAME] was not a party to the proceeding. 2 The relevant objection decision concerns assessments only of Mr [NAME]. That being so, although, because her husband is the principal income earner in the family, Mrs [NAME] might be indirectly aggrieved by the Tribunal's decision, she is not a party competent to challenge the Tribunal's decision. 3 Having regard to Mrs [NAME] affidavit, and with the benefit of an exchange with Mr [NAME] concerning his interlocutory application, it is apparent that the purpose of the application is for him to have the benefit of his wife's assistance, perhaps to speak on his behalf on the hearing of the appeal. That course would be truly exceptional. 4 In the ordinary course of events, where a person chooses to act for themselves, as is their perfect right, in a court proceeding, it is for that person, as a party, to make his or her own submissions. What is possible is for a person acting for him or herself to have the benefit of an assistant who can make suggestions to them, without interrupting court proceedings, as to submissions which might be made. That type of assistant has come to be called a [NAME] friend, so called after the root English authority which established or confirmed a right to such assistance: McKenzie v McKenzie [1971] P 33. 5 Mr [NAME] is also entitled to have his wife's assistance in the preparation of written submissions in this case, although the responsibility for those submissions must be his as a party. He is the person who must, by signing and filing and serving the submissions, adopt them on his behalf. 6 The end result then is that, whilst I will understand the motivation for the application, it is, for the reasons which I have given, misconceived in its form. There is no basis for the joinder of Mrs [NAME] as a party. 7 For these reasons, I dismiss the interlocutory application. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan.

Associate: Dated: 17 May 2024