Commissioner of State Taxation v EDI Rail (Maryborough) Pty Ltd
[2010] WASCA 17 (S)
•9 FEBRUARY 2010
COMMISSIONER OF STATE TAXATION -v- EDI RAIL (MARYBOROUGH) PTY LTD [2010] WASCA 17 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2010] WASCA 17 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:42/2009 | 12 NOVEMBER 2009 AND ON THE PAPERS | |
| Coram: | McLURE P OWEN JA NEWNES JA | 9/02/10 | |
| 12/03/10 | |||
| 6 | Judgment Part: | 1 of 1 | |
| Result: | The respondents to pay 40% of the appellant's costs of the appeal to be taxed | ||
| B | |||
| PDF Version |
| Parties: | COMMISSIONER OF STATE TAXATION EDI RAIL (MARYBOROUGH) PTY LTD ROCHE CASTINGS PTY LTD |
Catchwords: | Costs Application of s 105(12) of the State Administrative Tribunal Act 2004 (WA) to an appeal under s 43A of the Taxation Administration Act 2003 (WA) Otherwise turns on own facts |
Legislation: | Stamp Act 1921 (WA), s 75JC, s 75JD(4), s 75JDA(1)(a), s 75JDA(1)(b) State Administrative Tribunal Act 2004 (WA), s 105, s 105(7), s 105(9), s 105(12) Taxation Administration Act 2003 (WA), s 43A |
Case References: | Commissioner of State Taxation v EDI Rail (Maryborough) Pty Ltd [2010] WASCA 17 Southside Autos (1981) Pty Ltd v Commissioner of State Revenue [2008] WASCA 208 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : COMMISSIONER OF STATE TAXATION -v- EDI RAIL (MARYBOROUGH) PTY LTD [2010] WASCA 17 (S) CORAM : McLURE P
- OWEN JA
NEWNES JA
DECISION : 12 MARCH 2010 FILE NO/S : CACV 42 of 2009 BETWEEN : COMMISSIONER OF STATE TAXATION
- Appellant
AND
EDI RAIL (MARYBOROUGH) PTY LTD
First Respondent
ROCHE CASTINGS PTY LTD
Second Respondent
(Page 2)
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram : JUDGE J CHANEY (DEPUTY PRESIDENT)
Citation : EDI RAIL (MARYBOROUGH) PTY LTD and COMMISSIONER OF STATE REVENUE [2009] WASAT 49
File No : CC 744 of 2008
Catchwords:
Costs - Application of s 105(12) of the State Administrative Tribunal Act 2004 (WA) to an appeal under s 43A of the Taxation Administration Act 2003 (WA) - Otherwise turns on own facts
Legislation:
Stamp Act 1921 (WA), s 75JC, s 75JD(4), s 75JDA(1)(a), s 75JDA(1)(b)
State Administrative Tribunal Act 2004 (WA), s 105, s 105(7), s 105(9), s 105(12)
Taxation Administration Act 2003 (WA), s 43A
Result:
The respondents to pay 40% of the appellant's costs of the appeal to be taxed
Category: B
Representation:
Counsel:
Appellant : Mr G T W Tannin SC & Ms K J Dodd
First Respondent : Mr D R Williams QC & Mr A C Willinge
Second Respondent : Mr D R Williams QC & Mr A C Willinge
(Page 3)
Solicitors:
Appellant : State Solicitor for Western Australia
First Respondent : Blake Dawson
Second Respondent : Blake Dawson
Case(s) referred to in judgment(s):
Commissioner of State Taxation v EDI Rail (Maryborough) Pty Ltd [2010] WASCA 17
Southside Autos (1981) Pty Ltd v Commissioner of State Revenue [2008] WASCA 208
(Page 4)
1 JUDGMENT OF THE COURT: These reasons relate to the costs of the appeal in Commissioner of State Taxation v EDI Rail (Maryborough) Pty Ltd [2010] WASCA 17. On delivery of the judgment on 9 February 2010, the court made orders allowing the appeal, dismissing the respondents' notice of contention and setting aside the orders made by the State Administrative Tribunal (the Tribunal). The parties did not agree on the issue of costs and have filed written submissions on that subject in accordance with programming orders made on 9 February 2010.
2 Having been successful in the appeal, the appellant seeks an order for costs in its favour. The respondents contend that the appellant should pay the respondents' costs of the appeal, alternatively that there should be no order as to costs and in the further alternative, any costs awarded to the appellant should be confined to the issues on which it succeeded.
3 There were three issues in the appeal being whether there was (1) a duty avoidance arrangement under s 75 JDA(1)(a) of the Stamp Act 1921 (WA); (2), a duty avoidance arrangement under s 75JDA(1)(b); and (3) a failure to provide material information under s 75JD(4). The appellant failed on two of the three issues. The issue on which it succeeded (that there was a duty avoidance arrangement under s 75JDA(1)(b)) was not a basis on which the appellant disallowed the respondents' objection nor was it relied on by the appellant before the primary judge. However, the primary judge considered the issue and concluded that the arrangement did not fall within s 75JDA(1)(b). There was no objection to the appeal from that conclusion.
4 For their first contention the respondents rely on s 105(12) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) which provides:
(12) In the case of a decision in a proceeding coming within the Tribunal’s review jurisdiction, any leave to appeal granted to the decision-maker is to be granted on the condition that the costs of each other party are to be met by the decision-maker, unless the court considers that it would be unjust or unreasonable to impose that condition, whether generally or in respect of the costs of a particular party.
5 The appellant's appeal to this court was under s 43A of the Taxation Administration Act 2003 (WA) (TAA) which provides that an appeal from a decision of the Tribunal can be brought on a question of law, of fact, or mixed law and fact, without having first obtained leave to appeal. This court considered the inter-relationship of s 43A of the TAA and s 105 of
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- the SAT Act in Southside Autos (1981) Pty Ltd v Commissioner of State Revenue [2008] WASCA 208. The court in Southside Autos held that s 105 applies with any necessary modifications to a taxation appeal under s 43A of the TAA, to the extent that the application of s 105 is not inconsistent with s 43A. The power in s 105(7) to extend the time within which to appeal was held to apply to an appeal under s 43A of the TAA.
6 In concluding that s 43A of the TAA was not intended to cover the field in relation to revenue appeals from decisions of the Tribunal, Buss JA (with whom the other members of the court agreed) stated:
[N]either s 43A nor any other provision of the TAA makes provision for the powers of the appellate court in relation to the appeal as of right conferred by s 43A(1) or for any ancillary or incidental matters. For example, neither s 43A nor any other provision of the TAA contains any provisions comparable to s 105(8), (9), (10), (12) [86].
7 However, the question is whether s 105(12) is inconsistent with s 43A. Section 105(12) is, it seems to us, premised on the existence of a power to award costs. The source of the appellate court's power in relation to costs is s 105(9) which provides that the court may make any order in an appeal the court considers appropriate. Section 105(12) is in express terms dependent on the appeal in question being by way of leave on a question of law. The policy reasons for the approach taken in s 105(12) are canvassed in the Report of the Standing Committee on Legislation in relation to the State Administrative Tribunal Bill 2003 and the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Bill 2003, October 2004, 172 - 174. The Standing Committee (of the Legislative Council) recommended a provision in terms which became s 105(12).
8 The differences between an appeal as of right on a question of law or fact and an appeal with leave on a question of law are of such significance as to make the application of s 105(12) inconsistent with s 43A. Even if we are wrong in that regard, this is a case in which it would be unjust or unreasonable to require the appellant to pay the respondents' costs. The respondents did not follow the recommendation of their professional advisor to seek a pre-determination under s 75JC of the Act, which recommendation was made because of uncertainty surrounding the applicability of s 75JDA. Further, the respondents are significant commercial entities with resources to protect and advance their interests. These same considerations also lead us to reject the respondents' alternative contention that there be no order as to costs. However, the appellant should suffer a costs penalty to reflect its lack of success on two
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- issues, both of which featured very prominently at the hearing. We hereby order that the respondents pay 40% of the appellant's costs of the appeal to be taxed.
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