Deputy Commissioner of Taxation v Blackman, J.W

[1992] FCA 75

JUDGMENT No. .?.?...l .... ?L

IN THE FEDERAL COURT OF AUSTRAL	IA	)
v	) No. VG33 of 1991
GENERAL DIVISION	1

QN APPEAL from the Taxation Appeals Division of the

Administrative Appeals Tribunal

BETWEEN :	DEPUTY COMMISSIONER OF TAXATION 0 F THE
U M M O N W E A L T H  O r
AUSTRALIA

Applicant

JOHN W. BLACKMAN

Respondent

Jenkinson J.

Melbourne

28 February, 1992

REASONS FOR JUDGMENT

On 3 February 1992 I pronounced orders disposing of this appeal, including an order that the applicant's costs of the appeal be paid by the respondent. Mr. Searle of counsel moved for an order that the costs order be re-called so that counsel for the parties could address me on that question, which had not been the subject of submission before judgment.

The notice of appeal disclosed four grounds of appeal. Only two grounds were argued on the hearing of the appeal, which was completed in one day. Most of the day was	applicant succeeded. Counsel for the applicant expounded the	spent on submissions concerning the ground on which the
submission underlying the other ground, but did not press the submission after unfavourable comments were made about it by me.
Mr. Searle submitted that, the applicant having failed to establish three of the four grounds of appeal and the respondent having made no contribution at all to the making of the error by reason of which the appeal was allowed, the costs order made was not a correct exercise of the court's discretion. All the more was that so, in Mr. Searle's submission, because the appeal had not resolved any of the matters in controversy between the parties before the Tribunal. The respondent should be awarded three quarters of his costs, Mr. Searle submitted.
If the three grounds had occupied any significant time at the hearing, or in preparation for the hearlng, there would be much to be said in favour of a different costs order from that which was pronounced. But that was not so. The respondent contested the ground whlch was pressed and, in the event, the respondent was unsuccessful. I think the order
made was the appropriate order.
It was put by Mr. Searle in support of his submissions that the evidentiary material for which the concession by Mr. Searle before the Tribunal was substituted had not been regarded by the applicant as relevant to the applicant's decision on the objection, as was demonstrated by the statement by the applicant, pursuant to s.37(1) of the
Administrative A~Deals Tribunal Act 1975, which had been
lodged with the Tribunal. But neither the Tribunal nor either party was constrained from treating that material as relevant on review of the applicant's decision.
If I had thought a different order as to costs ought to have been pronounced, I would have re-called the order contained in paragraph 5 of the order pronounced on 3 February 1992, which has not been entered. Not being of that oplnion, I decline to re-call the order, which may now be entered.

I certify that this and the 2
preceding pages are a true copy of
the Reasons for Judgment of the

Honourable Mr. Justice Jenkinson.

Dated: 28 February, 1992

Counsel for the Applicant	Mr. .B.J. Shaw Q.C. and
Mr. G.J. Davies
Solicitors for the Applicant	Australian Government
Solicitor
Counsel for the Respondent	Mr. P.K. Searle
Solicitors for the Respondent	Mills Oakley McKay
Date of Hearing	14 February, 1992