Commissioner of Taxation v AusNet Transmission Group Pty Ltd (No 2)

The Commissioner of Taxation sought judicial review of a decision by the Australian Taxation Office, with AusNet Transmission Group Pty Ltd as the respondent. The crux of the dispute involved the taxation treatment of certain payments made by AusNet, with the Commissioner asserting that these payments should be subject to taxation contrary to the respondent’s position. The matter was heard by the Full Court of the Federal Court of Australia.

The primary legal issue before the court was whether the Court should deviate from the usual order regarding costs, particularly in the context of the absence of any special circumstances warranting a departure from the general principle that costs follow the event. The respondent sought an apportionment of costs, while the Commissioner argued that the usual order as to costs should be adhered to.

The Court held that there were no special circumstances present that would justify a deviation from the usual order as to costs. It was determined that costs should follow the event, meaning that the losing party, in this case the respondent, should bear the costs of the appeal to the Full Court and the costs of the proceeding before the primary judge. Consequently, the Full Court ordered that the respondent pay the appellant's costs of the appeal and the proceeding before the primary judge.

The Court further noted that the costs of the appeal to the Full Court, and the costs of the proceeding before the primary judge, would be the costs of the further hearing. The entry of these orders is governed by Rule 39.32 of the Federal Court Rules 2011.