Frugtniet v Tax Practitioners Board

REASONS FOR JUDGMENT 1 On 1 October 2015, I allowed the applicant's appeal from the decision of the Administrative Appeals Tribunal ("the Tribunal") in this proceeding. In the orders which I then made, I gave the applicant 14 days within which to apply for an order entitling him to payment by the respondent of his out-of-pocket expenses necessarily incurred in connection with this proceeding, if any, and/or entitling him to payment by the respondent of his costs of the proceeding in the Tribunal. The applicant did not apply for an order of the former kind, but has applied for an order of the latter kind. 2 If this court has the power to award costs incurred in the Tribunal, it would arise not under s 43 of the Federal Court of Australia Act 1976 (Cth), which applies only to proceedings in the court, but under such power as the court may have under s 44(4) of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") to make an order of the kind that the Tribunal might have made: see, analogously, UCP Gen Pharma AG v Mesoblast, Inc (No 2) [2012] FCA 500 at [3]. 3 In the proceeding from which the applicant brought his appeal, the Tribunal had no power to award costs, under either the AAT Act (as to which, I note that the absence of any such power was adverted to, if only in passing, by the Tribunal itself, in Re Viliamu and Commissioner of Taxation (2010) 119 ALD 400, 401 [2]) or the Tax Agents Services Act 2009 (Cth). In the circumstances, and subject to the applicant's argument referred to below, I cannot see how the court would have the power to make an order of the kind that he seeks. 4 The applicant submitted that the costs of the hearing in the Tribunal could and should be awarded in his favour by analogy with the procedure contemplated by s 10A of the Federal Proceedings (Costs) Act 1981 (Cth). I do not accept that submission. I would not want to say anything about s 10A, either generally or in relation to the circumstances of the present case, but I do reject the submission that it supplies the court with power to award the applicant his costs of the proceeding in the Tribunal. Absent the power for the court to do what the applicant seeks, any argument, by way of analogy, that it should do so is neither here nor there. 5 For the above reasons, I reject the applicant's application for costs in the Tribunal. The respondent, which was obliged to respond to that application, should have its costs. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.