IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION ae] : [ea] ss] od i NOT FOR DISTRIBUTION wee ww WILCOX J SYDNEY 25 JUNE 1986 No. G.386 of 1984 SWISS ALUMINIUM AUSTRALIA LIMITED Applicant THE COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA Respondent MINUTES OF ORDER THE COURT ORDERS BY CONSENT THAT: The application is dismissed. The respondent pay to the applicant its costs of the Application. ' NOTE Settlement and entry of orders is 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 GENERAL DIVISION BETWEEN: SWISS ALUMINIUM AUSTRALIA LIMITED Applicant AND: THE COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA Respondent CORAM: WILCOX J PLACE: SYDNEY 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 time 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 was 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 he dealt with by the taxing officer. It is not usual fora 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 ina 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 costs 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. Mr 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 to say the principal proceedings for review under the Administrative Decisions (Judicial Review) Act-and, consequently, that the costs of those affidavits should not he recovered as—part of 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 3.13 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 s.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 assessments 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 of 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 or 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, Ra we le oe Lee re -- 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 Act. 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 applicant 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 a considerable amount of money at stake for his client and I i Or ee . -- ee 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 20 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 and/or 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 aiso 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 a 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 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 ina 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. _ft 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 de 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. f. f Zz Associate: Yvonne A. He Z TOFU. Date: 1 July 1986 Counsel for the Applicant: Solicitors for the Applicant: Counsel for the Respondent: Solicitors for the Respondent: Date(s) of hearing: Mr B J Sullivan Messrs Minter Simpson Mr A Robertson Australian Government Solicitor 25 June 1986