Falcetta v Commissioner of Taxation

[2004] FCAFC 194

FEDERAL COURT OF AUSTRALIA

Falcetta v Commissioner of Taxation [2004] FCAFC 194

Falcetta v Commissioner of Taxation [2004] FCAFC 117 referred to

MAX FALCETTA v COMMISSIONER OF TAXATION
N1797 of 2003

COMMISSIONER OF TAXATION v IAN CHARLES BARTLETT
N1798 of 2003

RYAN, FRENCH and RD NICHOLSON JJ
4 AUGUST 2004
PERTH (Heard in Sydney) (Via video link to Sydney)

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	N1797 of 2003

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	MAX FALCETTA APPELLANT/CROSS-RESPONDENT
AND:	COMMISSIONER OF TAXATION RESPONDENT/CROSS-APPELLANT
JUDGES:	RYAN, FRENCH and RD NICHOLSON JJ
DATE OF ORDER:	4 AUGUST 2004
WHERE MADE:	PERTH (Heard in Sydney) (Via video link to Sydney)

THE COURT ORDERS THAT:

1.

The Commissioner pay the costs of Mr Falcetta in relation to the

cross-appeal.

2.Mr Falcetta pay the costs of the Commissioner of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	N1798 of 2003

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	COMMISSIONER OF TAXATION CROSS-APPELLANT
AND:	IAN CHARLES BARTLETT CROSS-RESPONDENT
JUDGES:	RYAN, FRENCH and RD NICHOLSON JJ
DATE OF ORDER:	4 AUGUST 2004
WHERE MADE:	PERTH (Heard in Sydney) (Via video link to Sydney)

1.The Commissioner pay the costs of Mr Bartlett of the cross-appeal.

2.There be no order as to costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	N1797 of 2003 MAX FALCETTA APPELLANT/CROSS-RESPONDENT
AND:	COMMISSIONER OF TAXATION RESPONDENT/CROSS-APPELLANT
BETWEEN:	N1798 of 2003 COMMISSIONER OF TAXATION CROSS-APPELLANT
AND:	IAN CHARLES BARTLETT CROSS-RESPONDENT
JUDGES:	RYAN, FRENCH and RD NICHOLSON JJ
DATE OF ORDER:	4 AUGUST 2004
WHERE MADE:	PERTH (Heard in Sydney) (Via video link to Sydney)

REASONS FOR JUDGMENT

THE COURT:

1. On 10 May 2004 we published our reasons in these appeals (Falcetta v Commissioner of Taxation [2004] FCAFC 117). In proceeding N1797 of 2003 (‘the Falcetta proceeding’) we ordered that the appeal be allowed in part and that order 3 of the primary judge dated 21 October 2003 be varied by deleting the reference to ‘$1,815.00’ and substituting a reference to ‘$2835’. Additionally, we ordered that the respondent’s cross-appeal be dismissed. In proceeding N1798 of 2003 (‘the Bartlett proceeding’) we ordered that the cross-appeal be dismissed. In each of the appeals we ordered that counsel provide written submissions on all issues relating to costs.

2. Those submissions have now been received.  In the Falcetta proceeding the appellant submits that the appropriate orders are:

   (a)The Commissioner pay the costs of Mr Falcetta of the cross-appeal;

   (b)The Commissioner pay one half of the costs of Mr Falcetta of the appeal. 

   In the Bartlett proceeding the cross-respondent submits that the appropriate orders are:

   (a)The Commissioner pay the costs of Mr Bartlett of the cross-appeal;

   (b)There be no order as to costs of the appeal (including, for the avoidance of doubt, no order that Mr Bartlett pay any costs of the respondent occasioned by the appeal before the appeal was discontinued on 26 March 2004).

3. The submissions for the respondent in the Falcetta proceeding agree with the appellant’s proposed order (a) but seek to substitute for order (b) that Mr Falcetta pay the costs of the Commissioner of the appeal.  In the Bartlett proceeding, the cross-appellant concurs with the orders proposed by the cross-respondent. 

4. In relation to the second order in the Falcetta proceeding, the case of the appellant for having the Commissioner pay one half of his costs is that the appeal was successful but not entirely so.  While accepting that ultimately it is a matter of impression for the Full Court, the appellant submits that the order as proposed by him is appropriate after taking into account the success of the appeal and the late concession by the Commissioner of the errors by the trial judge requiring the appeal to be allowed at least in part.  These matters are more fully explained in the reasons which we published on 10 May 2004.  However, as the submissions for the respondent in the Falcetta proceeding state, the appeal was only allowed to the extent of $1020, an amount conceded by the Commissioner as relating to errors of calculation by the learned trial judge.  The true impression we have of the appeal is that the appellant was unsuccessful.  It is therefore appropriate that the appellant pay the costs of the Commissioner of the appeal.  

5. In relation to the second order in the Bartlett proceeding we should make no order as to the costs of the appeal on the understanding that Mr Bartlett will not afford any liability to pay any costs of the respondent occasioned by the appeal before it was discontinued on 26 March 2004.  It is not necessary that this be separately specified in the terms of the order.

6. For these reasons we now have made the costs orders in the form appearing attached to these reasons.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Ryan, French and RD Nicholson.

Associate:

Dated:             4 August 2004

Counsel for Max Falcetta and Ian Charles Bartlett:	Mr DB McGovern SC and Mr IE Davidson
Solicitor for Max Falcetta and Ian Charles Bartlett:	Stoikovich Macri
Counsel for the Commissioner of Taxation:	Mr DJ Fagan SC and Mr PM Fraser
Solicitor for the Commissioner of Taxation:	Australian Government Solicitor
Date of Last Written Submissions:	12 May 2004
Date of Judgment:	4 August 2004