Goliath Portland Cement Co Limited v Chief Executive Officer of Customs

[2000] FCA 1329

FEDERAL COURT OF AUSTRALIA

Goliath Portland Cement Co Limited v Chief Executive Officer of Customs
[2000] FCA 1329

COSTS – “slip rule” – rectification of omission to order that costs in Court below to follow outcome of appeal.

Customs Act 1901 (Cth)
Excise Act 1901 (Cth)
Federal Court Rules O 35 r 1, O 35 r 7(3)

GOLIATH PORTLAND CEMENT CO LIMITED AND SHAW CONTRACTING PTY LIMITED v CHIEF EXECUTIVE OFFICER OF CUSTOMS

T 10 OF 1999

LEE, COOPER AND KIEFEL JJ
PERTH (HEARD IN HOBART)
15 SEPTEMBER 2000

IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY	T 10 OF 1999

BETWEEN:

GOLIATH PORTLAND CEMENT CO LIMITED
FIRST APPELLANT

SHAW CONTRACTING PTY LIMITED
SECOND APPELLANT

AND:

CHIEF EXECUTIVE OFFICER OF CUSTOMS
RESPONDENT

JUDGES:

LEE, COOPER AND KIEFEL JJ

DATE OF ORDER:

15 SEPTEMBER 2000

WHERE MADE:

PERTH (HEARD IN HOBART)

THE COURT ORDERS THAT:

Order No 5 of the orders made on 22 August 2000 be varied to add the following words at the end thereof:

“…and of the hearing before Heerey J of the appeal from the Administrative Appeals Tribunal.”

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

IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY	T 10 OF 1999

BETWEEN:

GOLIATH PORTLAND CEMENT CO LIMITED
FIRST APPELLANT

SHAW CONTRACTING PTY LIMITED
SECOND APPELLANT

AND:

CHIEF EXECUTIVE OFFICER OF CUSTOMS
RESPONDENT

JUDGES:	LEE, COOPER AND KIEFEL JJ
DATE:	15 SEPTEMBER 2000
PLACE:	PERTH (HEARD IN HOBART)

FURTHER REASONS FOR JUDGMENT

1. On 22 August 2000, this Court made orders in respect of the above appeal and cross-appeal.  Those orders contained orders as to costs.  In particular, the costs order made by Heerey J of the proceedings before him was set aside and no order in lieu thereof was made.  Such omission was an oversight and it was not the intention of the Court that no order for costs should be made in respect of those proceedings.

2. The respondent/cross appellant, the Chief Executive Officer of Customs, sought to make submissions in respect of the costs of the proceedings before Heerey J.  The Court has the jurisdiction to entertain such an application under O 35 r 1 or O 35 r 7(3) of the Federal Court Rules.  In consequence, the Court gave directions that submissions by the parties in writing should be made on the issue of such costs.

3. We have considered the submissions and are persuaded that costs of the proceedings before Heerey J should follow the outcome of the appeal.  The findings of this Court as to the proper construction of the relevant sections of the Customs Act 1901 (Cth) and the Excise Act 1901 (Cth), and their operation with respect to the relevant facts as found by the Administrative Appeals Tribunal do not warrant the making of a differential order of the type made by Heerey J.

4. Order No 5 of the orders made on 22 August 2000 will be varied to add the following words at the end thereof:

   “...and of the hearing before Heerey J of the appeal from the Administrative Appeals Tribunal.”

I certify that the preceding four (4) numbered paragraphs are a true copy of the Further Reasons for Judgment herein of the Honourable Justices Lee, Cooper and Kiefel.

Associate:

Dated:             15 September 2000

Counsel for the First and Second Appellants:	Dr G A Flick SC and Mr J de Wijn QC
Solicitor for the First and Second Appellants:	Freehill Hollingdale and Page
Counsel for the Respondent:	Mr A Robertson SC and Dr A Gelbart
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	29 and 30 November 1999
Date of Judgment:	15 September 2000