Associated Minerals Consolidated Ltd v Commissioner of Taxation

[1994] FCA 806

JUDGMENT No.

IN THE FEDERAZ, COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY	No WAG 19 of 1994
GENERAL DIVISION
B E T W E E N :

ASSOCIATED MINERALS CONSOLIDATED LIMITED

Appellant

A N D :

~OMMISSIONER OF TAXATION

Respondent

COURT :	NORTHROP, SPENDER AND BURCHETT JJ
PLACE :	PERTH
m:	3 NOVEMBER 1994

MINUTES OF ORDER

THE COURT ORDERS THAT:

The respondent pay one half of the appellant's costs of the appeal.

Note :  Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY	NO WAG 19 of 1994
GENERAL DIVISION
B E T W E E N :

ASSOCIATED MINERALS CONSOLIDATED LIMITED

Appellant

A N D :

COM4ISSIONER OF TAXATION

Respondent

COURT:	NORTHROP, SPENDER AND BURCHETT JJ
PLACE :	PERTH
W:	3 NOVEMBER 1994

REASONS FOR JUDGMENT

THE COURT:

On 23 August 1994, the Court made orders disposing of this appeal and published its reasons for judgment for making those orders. At the same time the Court announced the following views:

"5. Either party may file and serve written submissions

as to the costs of the appeal within ten days of the

date of publication of these reasons.

6.  If neither party files written submissions in accordance with order 5, the respondent pay one half of the appellant's costs of the appeal.

7.   The respondent pay the appellant's costs of the cross-appeal."

Pursuant to the leave granted in paragraph 5, on 2
September 1994, the solicitor for the respondent filed
submissions supporting an order that each party pay its own

costs on the appeal in lieu of the order that the respondent pay one half of the appellant's costs of the appeal. The respondent did not oppose the order set out in paragraph 7. The substance of the submission was:

"The two issues on appeal were distinct issues. The Respondent won on one of the issues on appeal i.e. the interest costs on the Eurodollar loan. This issue was the one upon which commercially significant amounts of tax had become due and payable to the Respondent, much greater than the quantum of tax involved in the Plant 19 costs issue. Further, the time occupied in the hearing of the two issues on appeal was approximately equal. If the Respondent had won on the Plant 19 costs issue the whole of the costs of the appeal would have been awarded to the Respondent. In those circumstances, and bearing in mind the order as to costs on the cross appeal, each party should pay its own costs on the appeal."

During the course of the hearing, the Court raised the question of costs and the submissions then made need not be repeated. By written submissions filed and dated 2 September 1994, the solicitors for the appellant supported the view of the Court expressed in paragraph 6.

The Court sees no reason to change its tentative view expressed in paragraph 6. The appellant had to appeal to enforce its legal rights insofar as the appeal was successful. Normally a successful appellant should get an order for costs of the appeal. Here, the appellant succeeded on one issue but failed on the other. Having that in mind, the Court expressed its tentative view on costs. After considering the

submissions made, the Court concludes firmly with that view. Insofar as the respondent succeeded on one issue, the

respondent benefits by being required to pay one half only of
the appellant's costs of the appeal not the whole of them.

Accordingly, the Court orders that the respondent pay one half of the appellant's costs of the appeal.

I certify that this and the preceding two (2) pages are a true

copy of the Reasons for Judgment of the Court.

I ?

Date:

JUDGES' CHAMBERS
FEDERAL COURT OF AUSTRALIA
450 LITTLE BOURKE STREET

MELBOURNE. 3000

3 November 1994

MS Sonia Cornale
Records Clerk
Library and Information Services
Principal Registry
Federal Court of Australia
Level 16
Law Courts Building
Queens Square

SYDNEY NSW 2000

Dear Sonia

Re: Com~uterized Leaal Information Retrieval Svstem

I enclose the following judgment for inclusion in the data base of Federal Court Judgments:

Associated Minerals Consolidated Limited v Commissioner
of Taxation
No WAG 19 of 1994

The word processing disk containing the above judgment is enclosed. Please return the disk to the me when appropriate.

Thank you

The Hon Mr Justice Northrop