Weeks v Commissioner of Taxation

Respondents' submissions 4 In their written submissions the respondents refer to Construction, Forestry, Mining and Energy Union v Clarke (2008) 170 FCR 574, [2008] FCAFC 143 at [28]-[29]; Khiani v Australian Bureau of Statistics [2011] FCAFC 109; and Nimmo, in the matter of an application for an inquiry relating to an election for an office in the Australian Education Union (NT Branch) (No 2) [2011] FCA 728 at [28]-[30]. 5 The respondents submit that the appellant's case on appeal, in respect of all claimed contraventions of the Agency Agreement, was objectively weak.

Consideration 6 As the Full Court said in Thompson v Hodder (1989) 21 FCR 467 at 471, the words of the Act must be allowed to speak for themselves, in the sense, we would add, that it may be a distraction to substitute different words for those of s 824. Nevertheless the expression, "without reasonable cause", may describe a proceeding that is capable of being disposed of summarily. It is therefore appropriate to ask whether the present appeal had no substance in fact and law. 7 Although the appeal failed, that does not mean that it was commenced without reasonable cause: The Queen v Moore; Ex parte Federated Miscellaneous Workers' Union of Australia (1978) 140 CLR 470 at 473 per Gibbs J. 8 In our opinion, as a consideration of our reasons for judgment shows, the appeal had some substance, and was arguable, whether considered as a whole or in relation to each of the three grounds advanced by the appellant. 9 We do not agree, therefore, that the appeal was instituted without reasonable cause. This is so even though we did not need to hear oral submissions on behalf of the respondents in relation to the first of the three questions, concerning the asserted failure to arrange a conference within the terms of cl 107.8 of the Agency Agreement. 10 It is not necessary in the present case to explore the distinction between ss (1) and (2) of s 824. The matters put by the respondents mean that, in this case, because we have not concluded that the appeal was instituted without reasonable cause within the meaning of s 824(1), it follows that we are not satisfied that the appellant has acted unreasonably within s 824(2) in pursuing the appeal. 11 The respondents' application for their costs of the appeal does not fit within the circumstances of s 824 and that section therefore operates to deprive the Court of the power it otherwise would have to make a costs order in their favour as successful respondents. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Dowsett, Besanko and Robertson.