Hutchins, Peter Graeme v Deputy Commissioner of Taxation [1996] FCA 514

IN THE FEDERAL COURT OF AUSTRALIA) ) VICTORIAN DISTRICT REGISTRY ) No. VG 247 of 1994 ) GENERAL DIVISION ) ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: PETER GRAEME HUTCHINS Appellant AND: DEPUTY COMMISSIONER OF TAXATION Respondent

COURT: BLACK CJ, LOCKHART and SPENDER JJ. DATE: 2 JULY 1996 PLACE: SYDNEY MINUTE OF ORDER THE COURT ORDERS THAT: 1. The respondent pay the costs of the appellant of the hearing on 6 March 1995, of the adjournment thereof, and any costs thrown away by reason of the adjournment. 2. Otherwise the appellant pay the costs of the respondent of the appeal. 3. The costs referred to in order 1 be set off against the costs referred to in order 2.

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

IN THE FEDERAL COURT OF AUSTRALIA) ) VICTORIAN DISTRICT REGISTRY ) No. VG 247 of 1994 ) GENERAL DIVISION ) ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: PETER GRAEME HUTCHINS Appellant AND: DEPUTY COMMISSIONER OF TAXATION Respondent

COURT: BLACK CJ, LOCKHART and SPENDER JJ. DATE: 2 JULY 1996 PLACE: SYDNEY REASONS FOR JUDGMENT THE COURT On 27 March 1996 this appeal was dismissed and the appellant ordered to pay the costs of the respondent of the appeal. When judgment was delivered, counsel for the appellant raised with the Court the question of costs of a hearing before a Full Court, differently constituted (Northrop, Lockhart and Heerey JJ.) on 6 March 1995, when the Court adjourned the matter and reserved costs. The parties were directed by the Court to make written submissions as to why the reserved costs should not follow the event (O. 62 r. 15). Those submissions were furnished. In the Court's opinion there is no need for oral argument. The circumstances in which the hearing of the appeal was adjourned on 6 March 1995 may be briefly stated. The Full Court (Northrop, Lockhart and Heerey JJ.) sat on 6 March 1995 to hear this appeal. The appeal did not proceed that day because counsel for the respondent informed the Court that the respondent wished to argue that the respondent's decision to vote against a proposal by the appellant that he enter into a composition with his creditors pursuant to Part X of the Bankruptcy Act 1966 was an exercise of executive power under s. 61 of the Constitution. It is apparent from the respondent's outline of submissions dated 2 March 1995 that this argument was intended to be the respondent's primary submission. The respondent's argument based on s. 61, though apparently advanced at the trial before the learned primary Judge (Jenkinson J.), was not at the forefront of the respondent's case in that instance. Indeed, in his reasons for judgment, Jenkinson J. referred to it as a possible argument. Until the Full Court (constituted by Northrop, Lockhart and Heerey JJ.) received the written outline of submissions of the respondent dated 2 March 1995 (which raised the s. 61 argument), no steps had been taken for the giving of notices to the Attorneys-General of the Commonwealth and the States pursuant to s. 78B of the Judiciary Act 1903. In our view if the respondent seriously wished to press its argument under s. 61 it should have drawn that matter to the attention of the Court much earlier than a few days before the hearing of the appeal, so that notices could have been given in conformity with O. 51 of the Court's rules and time allowed to the Attorneys-General to respond. The hearing of the appeal aborted on 6 March 1995 primarily because the s. 61 issue, which had been on the periphery of the case until then, was elevated to the forefront of the respondent's argument. Neither the Commonwealth nor any of the States sought the transfer of the proceeding to the High Court. Hence, the appeal was heard by the Full Court of this Court (constituted by Black C.J., Lockhart and Spender JJ.) in October 1995. On the final hearing of the appeal the respondent did not seek to press its argument based on s. 61. In these circumstances, in our opinion the proper order for costs concerning 6 March 1995 is that the respondent should pay the costs of the appellant of the hearing on 6 March 1995 and otherwise thrown away by the adjournment granted that day. As the appeal was dismissed on 27 March 1996 by the Full Court of this Court and the appellant ordered to pay the costs of the respondent of the appeal, it is appropriate that the costs ordered against the respondent in respect of the adjourned hearing on 6 March 1995 be set off against the costs ordered against the appellant in respect of the appeal generally. The orders of the Court are as follows: 1. That the respondent pay the costs of the appellant of the hearing on 6 March 1995, of the adjournment thereof, and any costs thrown away by reason of the adjournment. 2. That otherwise the appellant pay the costs of the respondent of the appeal. 3. That the costs referred to in order 1 be set off against the costs referred to in order 2. I certify that this and the preceding three (3) pages are a true copy of the reasons for judgment herein of the Court . Associate Dated: 2 July 1996