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The ATO has issued a Decision Impact Statement in relation to the decision of the Federal Court in Caporale v FCT [2013] FCA 427.

The case concerned the constitutional validity of provisions relating to the Legal Services Directions. The taxpayer sought to raise allegations of a breach of the Model Litigant Obligations before a court.

Robertson J observed:

"The [taxpayer's] point was that the Model Litigant Policy, which forms Appendix B to Schedule 1 to the Legal Services Directions 2005 made by the Attorney-General pursuant to s 55ZF of the Judiciary Act 1903, had not been complied with by the respondent; that this gave rise to legal rights in her; and the relevant provisions of s 55ZG of the Judiciary Act 1903, ss 55ZG(2) and (3 ), were invalid to the extent that they purported to prevent those rights from arising or being enforceable in the courts."

The taxpayer's challenge to the validity of subsections 55ZG(2) and (3) failed. Robertson J held that "no private rights are conferred by Appendix B ' The Commonwealth's obligation to act as a model litigant'... "

The ATO agrees and does not consider the decision to have broader implications.


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