Swiss Aluminium Australia Ltd v Commissioner of Taxation

NOT FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA

) )

SOUTH WALES DISTRICT REGISTRY	)	No. G.386 of 1984
)

GENERAL

DIVISION

BETWEEN:

SWISS ALUMINIUM AUSTRALIA

LIMITED

Applicant

. AND:

THE COMMISSIONER OF

TAXATION OF THE

COMMONWEALTH OF AUSTRALIA

Respondent

CORAM :

WILCOX J

PLACE	z	SYDNEY
m;	25 JUNE 1986

MINUTES OF ORDER

THE COURT ORDERS BY CONSENT THAT:

1. The application is dismissed.

The respondent pay to the applicant its costs

of the

Application.

NOTE :	Settlement and entry of orders i5 dealt with in Order
36 of the Federal Court Rules.

NOT FOR DISTRIBUTION

IN THE FEDERAL COURT

OF AUSTRALIA

) )

NEW SOUTH WALES DISTRICT REGISTRY	)	No. G.386 of 1984
1

DIVISION

GENERAL

)

BETWEN:

SWISS ALUMINIUM AUSTRALIA

LIMITED

Applicant

AND:

THE COMMISSIONER OF

TAXATION OF THE

COMMONWEALTH OF AUSTRALIA

Respondent

CORAM :

WILCOX J

PLACE

SYDNFX

DATE

25 JUNE 1986

EXTEMPORE REASONS FOR JUDGMENT

The application

by Swiss Aluminium Australia Limited

for review under the Administrative Decisions (Judicial

Review) Act

1977 has been dismissed because of

a concession

made by the respondent Commissioner of Taxation extending tlme

for payment of the tax payable by

the company under

assessments of income tax relating to the years ending 31

December 1978 and 31 December 1979. The terms

of the

extension granted by the Commissioner are not identical to

those sought by the applicant but it

is fair to say that the

applicant has obtained

a significant measure of success in the

course which

it has been taking.

The Commissioner

has agreed to pay the general costs

of the proceedings in this Court; apparently in recognition

of the fact that the applicant

has achieved substantial

success. However, there is a difference of view between the

respective solicitors regarding certain costs sought to be

obtained by the applicant. In relation to those matters the

respondent's solicitor argues

that costs should not be allowed

because they were incurred through the fault

of, or as a

result of unnecessary action by, the applicant.

When this situation

v s 5 drawn to

my attention I

expressed some reservation about dealing with

it. Ordinarily

the relationship between the incurring of particular costs and the proper conduct of the action is something which would be

dealt with by

the taxing officer. It is not usual for

judge, asked to make

a general order

for costs, to involve

himself in that question. However, both parties pressed me to

look at the matter and to express

a view, the submission being

that I had a greater understanding of the history

of the

matter than would be possible for

a taxing officer coming to

it for the first time at this stage.

So pressed and with some

reluctance, I agreed to look at the matters in issue and	to
express a view.

Having heard argument on the relevant matters.

I will

express my view. But I wish to make it clear that the view is

not intended to bind the taxing officer if, as

a result of his

or her own investigation of the matter and of his or her

consideration of anything which might be said on behalf of

the

parties, he or she takes the view that

a different result

should apply. The views I will express are intended to assist

the parties to work

out the matter between themselves,

hopefully without necessity for

a formal taxation, and if that

proves unsuccessful, to give to the taxing officer such

assistance as may be derived from my remarks. But

I emphasize

again that they are not intended finally to determine any

rights in regard to these items.

The issues between the parties are crystallized in

letter dated

27 May 1986 from the Australian Government

Solicitor to Messrs Minter Simpson and

Co. Paragraph 2 of

that letter sets out the items in relation to which

the

Australian Government Solicitor, on behalf of the respondent, contends that there should be no recovery of costs. The

solicitors for the applicant responded on

30 May 1986,

contending that the casts were properly payable

as part of the

general costs of the proceedings which the Commissioner had

agreed to pay.

The first of the three matters relates to two

affidavits sworn on

24 January 1986, each made by Andrew

Graves Powell, the Managing Director of the applicant.

Powell, in fact, swore three affidavits on that day.

No issue

arises as to

one of them, being an affidavit of

26 pages, but

the contention is put that neither of the other two affidavits

was relevant to

the proceedings before the Court, that is

say the principal proceedings for review under the

Administrative Decisions (Judicial Review)

c_-.

consequently, that the costs of

those affidavits should not be

recovered as-part a€-the costs of the proceedings. In my

opinion, that submission

is well founded.

The 32 page affidavit sets out in considerable detail

material relating to the establishment at Gove Peninsula of

the bauxite operation carried on by the applicant,

or by

companies associated with it. I do not see what this

has to

do with the present case.

Mr Sullivan on behalf of

the

applicant correctly points out that there have been issued two

separate statements under

s.13 of the Administrative Decisions

(Judicial Review) ,Act. The first statement, dated

9 October

1984. was erroneous in one respect in that it incorrectly

referred to a notice of objection dated

17 August 1984, which

notice had not in fact been issued when the relevant decision

was made. This error was corrected in the second 5.13

statement issued in September

1985.

The latter document also

made reference to some additional material which had been

exchanged between the parties at about the time of the making

of the assegsments and the making of the original decision.

A common feature

of both statements is the indication

by the Commissioner that. rightly or wrongly, he had had no

regard to any material which might have existed in respect of

the establishment

of the bauxite operation. The affidavit

Mr Powell does not indicate that there was

such material

before the Commissioner, and

I would have thought that

it was

an essential pre-condition to

a complaint that the

Commissioner failed to take into account

a relevant matter

that the material was before him either actually

constructively. It seems to me

that the 32 page affidavit

does not advance the applicant's case at all.

The same comment may be made about the shorter

affidavit, a 6 page affidavit, which refers to correspondence

between the parties relating to the availability of various

material under the Freedom of Information

Act 1982. Once

again I do not think that this has anything to do with the principal proceedings. It may be that material which has been

made available under the Freedom of Information

Act then

became available for tender

in the principal proceedings and,

6 .

being relevant, would have been admissible in those

proceedings. However, this affidavit does not reveal

information which is otherwise relevant. It concentrates on

the battle that was going on between the parties relating to

the discovery of material under the Freedom of Information

m. I think that the costs in relation to

each of these

affidavits were not costs properly incurred in the conduct of

the principal proceedings.

The second matter relates

to the number of directions

hearings which has occurred.

The respondent does not object

to claims in respect of attendances at all directions hearings

but five particular hearings; are said to have been necessary

only because of defaults of the applicant. There are often

problems in determining a matter such as this because of the

lack of records as to precisely what happened on particular

occasions, and memories will often differ about such matters,

However, it is clear

that there was

a very

considerable delay

by the appllcant in filing its affidavits.

On 27 September 1985

a timetable was handed up, and directions

made in accordance with that timetable. under which the

applicant was to file and serve the affidavits on which it

relied on or before 18 October 1985. In the event,

the

applicant's affidavits were not completed until

27 February

1986.

Mr Sullivan has pointed out that there was

considerable amount

of money at stake

for his client and

7. \

understand the need for care.

I do not understand the need

for such

a considerable delay, especially given the fact

that

there had been already considerable delay since the

application was filed on 11 November 1984.

I think one of the attendances in September 1985 was

- necessary but not two.

I would take the view

that the

attendance on

27 September 1985 when directions were actually

made was

a cost properly incurred but not that of

September. It is true that on that day the applicant was handed a request for particulars, but I do not see why this could not have been accommodated in any timetable which was

then discussed between the parties andfor made by the Court.

There was no real necessity to come back the following week.

The directions hearings on 15 November and

2 February

were aborted

by the continuing failure of the applicant to

file its affidavits in accordance with the timetable. In my view they &iio ought to be regarded as not costs properly incurred in the conduct of the case. In respect of the

attendance on

7 March I would take the view that this was

necessary directions hearing.

By that time the applicant‘s

affidavits were complete and there was	a question of
discovery.

The final matter relates to

a notice of motion in

respect of discovery filed without any supporting affidavit on

27 February 1986. There ought to have been

a supporting

8 .

affidavit. Moreover, it would have been appropriate for this

matter to be dealt with, in the first instance, by discussion

between the parties, particularly having regard to the fact

that very similar matters had been considered by me in

judgment in Nestles Australia Limited

v Commissioner of

Taxation which had been handed down on

14 February 1986 and

which was available to the parties.

I think that the only

matter under discussion in relation to this item would be the

preparation of the notice

of motion itself, and that

-is

minimis, but my view is that

it was inappropriate to file the

notice of motion at

that stage without any supporting

affidavit

I do not propose to make

any order in regard to the

matter.

I simply indicate those views to be taken into

account in the manner indicated.

I note that:

an agreement has been reached between the

parties.

By consent I dismiss the Application and order that

the respondent pay to the applicant its costs of the

Application.

I certify that this and the seven

(7)

preceding pages are

a true copy of

the Reasons for Judgment of his Honour Mr Justice Wilcox.

Date :

1 July 1986

9 .

Counsel for the Applicant:	Mr B J Sullivan
Solicitors for the Applicant:	Messrs Minter Simpson
Counsel for the Respondent:	Mr A Robertson
Solicitors for the Respondent:	Australian Government Solicitor
Date(s) of hearing:	25 June 1986

[1986] FCA 253

25 Jun 1986