Farah Custodians Pty Limited v Commissioner of Taxation (No 2) [2019] FCA 1076

Farah Custodians Pty Limited v Commissioner of Taxation (No 2) [2019] FCA 1076

It cannot be concluded, at this interlocutory stage, that the applicant's (Farah's) proposed claim in negligence is not reasonably arguable. While the alleged duty of care is novel and may ultimately be inconsistent with the statutory scheme or unsupported by the relationship's salient features, the facts as pleaded are sufficient to allow the amendment. Leave should be granted to file the amended statement of claim and join the Commonwealth as a party. The respondent's strike out and summary dismissal applications are dismissed; costs follow the event.

Jurisdiction
Australia
Judgment Date
12 July 2019
Procedural Posture
Interlocutory Application in Federal Court Proceeding (taxation Context) / Ruling on Applications for Leave to Amend Pleadings and to Strike Out/add Parties
Outcome
Leave to amend granted; interlocutory applications by respondent dismissed; costs orders made.
Legal Topics
['common Law Duty of Care of Commissioner of Taxation' 'negligence in Administration of RBA Refunds' 'joinder of Parties' 'leave to Amend Pleadings' 'summary Dismissal/strike Out Applications']
['taxation Law' 'negligence' 'administrative Law' 'practice and Procedure'] ['common Law Duty of Care of Commissioner of Taxation' 'negligence in Administration of RBA Refunds' 'joinder of Parties' 'leave to Amend Pleadings' 'summary Dismissal/strike Out Applications']

Case Brief

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Procedural Posture

Interlocutory Application in Federal Court Proceeding (taxation Context) / Ruling on Applications for Leave to Amend Pleadings and to Strike Out/add Parties

Legal Issues

  1. 1 ['Whether the Commissioner of Taxation owes a common law duty of care to taxpayers in performing statutory duties relating to RBA refunds' "Whether the applicant's proposed claim in negligence discloses a reasonably arguable case" 'Whether loss or damage can be established by the applicant in its negligence claim' 'Whether leave to amend pleadings should be granted and/or whether parts of the pleading should be struck out']

Ratio Decidendi

It cannot be concluded, at this interlocutory stage, that the applicant's (Farah's) proposed claim in negligence is not reasonably arguable. While the alleged duty of care is novel and may ultimately be inconsistent with the statutory scheme or unsupported by the relationship's salient features, the facts as pleaded are sufficient to allow the amendment. Leave should be granted to file the amended statement of claim and join the Commonwealth as a party. The respondent's strike out and summary dismissal applications are dismissed; costs follow the event.

Court Disposition

Leave to amend granted; interlocutory applications by respondent dismissed; costs orders made.

Orders

  • ['The applicant granted leave to file an amended statement of claim and amended originating application in forms attached to its interlocutory application dated 28 September 2018 (with clean versions).' 'The Commonwealth of Australia be joined as second respondent.' 'The applicant to pay costs thrown away by the...