Deputy Commissioner of Taxation v Blackman, J.W

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

The appeal in this case was brought by the Deputy Commissioner of Taxation against the decision of the Taxation Appeals Division of the Administrative Appeals Tribunal, with John W. Blackman as the respondent. The appeal arose from a dispute regarding the assessment of income tax and the subsequent objection and review processes. The Federal Court of Australia was tasked with reviewing the decision of the Tribunal and determining the appeal. The appeal was heard by Jenkinson J on February 14, 1992, and the judgment was delivered on February 28, 1992.

The primary legal issue before the court was whether the order for costs, which was made in favour of the applicant, was an appropriate exercise of the court's discretion. The court had to consider whether the applicant had successfully established two out of four grounds of appeal, and whether the respondent had contributed to the error that led to the appeal being allowed. Additionally, the court needed to determine if the appeal had resolved any of the matters in controversy between the parties before the Tribunal. The other two grounds of appeal were not argued as they were deemed unsuccessful.

The court found that the three grounds of appeal that were not argued did not occupy significant time at the hearing or in preparation, and that the respondent had contested the ground that was pressed. As a result, the court upheld the original costs order, which required the respondent to pay the applicant's costs of the appeal. Jenkinson J emphasised that if there had been a need for a different costs order, the court would have re-called the order. However, as the court was satisfied with the appropriateness of the original order, it declined to make any changes to it.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established