Commissioner of Taxation v Ilbery, Jonathan Richard

[1982] FCA 79

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IN THE FEDERAL COilRT OF AUSTRALIA	)
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WESTERN AUSTRALIA DISTRICT REGISTRY	) W.A. NO. G.21 Of 1981
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DIVISION GENERAL 1

ON APPEAL FROM THE SUPREME COURT OF WESTERN AUSTRALIA

BETWEEN:  .

THE COMMISSIONER OF TAXATION OF

THE COMMONWEALTH OF AUSTRALIA Appellant

and

JONATHAN RICHARD ILBERY Respondent

NORTHROP, TOOHEY

and SHEPPARD JJ. REASONS FOR ZUDGMENT 18 -AY 1982.

h allowing this appeal the Court ordered that the

respondent pay the appellant's costs of the appeal and of the

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! proceedings in the Supreme Court but gave liberty to the

respondent to apply to vary that term.

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' .. The respondent now submits that there should be no

order as to the costs of the proceedings in the Supreme Court

!	and that this Court s3ould make such special orders as to the
. .	appeal before it as may be just. A t the request of the Court

_ . .

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the parties have prepared written submissions to avoid difficulties inherent in the three members of the Court and counsel meeting for oral argument.

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The Court is not persuaded that there should be any

departure from the ordinary rule that in litigation a

successful party is entitled	to his costs of <he proceedings
and that where an appeal	is allowed the appellant should have
as well the costs of the hearing before the	court below. The
-	..
- - basis of the respondent's submission that there should be a

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! departure from these rules is that the case presented to this
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Court by the appellant differed substantially from that

presented to the Supreme Court of Western Australia.

After the decision of the Supreme Court and before

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the hearing of the appeal before this	Court, the House of
Lords delivered judgment in	W. T. Ramsay v. Inland Revenue

Commissioners L19811 2 W.L.R. 4 4 9 and the judgments in that

case were advanced by the present appellant in support of his

appeal. While two members of this Court stated their

willingness to rely upon that decision to uphold the	appeal,
.if, contrary to their	opinion, the relevant expenditure was

i	incurred in gaining or producing the'respondent's assessable income, all members of the Court were in agreement that the
appeal should be upheld on the basis that the relevant
expenditure was not incurred in gaining or producing the
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respondent's assessable income. The appeal was a ,llowe d on the latter ground, and in that regard this Court took a view
different from that taken by the Supreme Court.

It is true that in several respects the appellant's

submissions differed from those which he had advanced in the

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court below. That is not an unusual situation and the fact

remains that the basis upon which this Court allowed the

appeal was one considered by the Supreme Court and rejected

- by it.

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In these circumstances we see no reason to depart from the ordinary rules mentioned at the outset of these

reasons. In particular, we are not persuaded that the

appellant should not have his costs of the appeal or that he

should not have his costs of the hearing in the Supreme

\ Court-

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The Court is not prepared to vary the terms of

paragraph 3 of its order of 25 November 1981.	The appellant
is entitled to the	costs of this motion.

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