FEDERAL COURT OF AUSTRALIA Commissioner of Taxation v Pilnara Pty Ltd [1999] FCA 176 COMMISSIONER OF TAXATION v PILNARA PTY LTD N 731 OF 1999 WILCOX, HILL & CARR JJ 25 February 2000 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 731 OF 1999 On appeal from a Judge of the Federal Court of Australia BETWEEN: COMMISSIONER OF TAXATION Appellant AND: PILNARA PTY LIMITED Respondent JUDGES: WILCOX, HILL & CARR JJ DATE: 25 FEBRUARY 2000 PLACE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 731 OF 1999 On appeal from a Judge of the Federal Court of Australia BETWEEN: COMMISSIONER OF TAXATION Appellant AND: PILNARA PTY LIMITED Respondent JUDGES: WILCOX, HILL & CARR JJ DATE: 25 FEBRUARY 2000 PLACE: SYDNEY REASONS FOR JUDGMENT REGARDING COSTS 1 THE COURT: On 22 December 1999 we published reasons for judgment in relation to the substantive matters argued in the appeal. At that time we deferred making any formal orders. Our reason was that we were uncertain about the appropriate order as to costs, both of the appeal and at first instance. We invited the parties to make written submissions on that matter. They have done so. 2 The appellant, the Commissioner of Taxation, contends there should be no order as to costs, either of the primary hearing or the appeal. The respondent, Pilnara Pty Limited, seeks the costs of both hearings. Each party has put reasons for its contention. We have given careful consideration to those reasons but need not set them out. We have concluded it would be a fair result, in relation to costs, if the Commissioner was ordered to pay Pilnara's costs of the primary hearing but there was no order for costs of the appeal. 3 Although we accept that the point upon which Pilnara succeeded was open to it upon the hearing of the appeal, it was not at the forefront of Pilnara's case, either at first instance or on the appeal. If the point had been squarely put at first instance, there might not have been an appeal at all. It was only at the appeal stage that the point was directly argued, and then only along with many other points, on all of which Pilnara failed, other than the constitutional issue that we left undecided. 4 Having regard to our conclusion about costs, although we respectfully disagree with aspects of his reasons, it is unnecessary for us to interfere with the order made by the primary judge. The only order we need make is that the appeal be dismissed. We will make that order. I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Dated: 25 February 2000 Counsel for the Appellant: Mr A Robertson SC with Mr S Gageler Solicitor for the Appellant: Australian Government Solicitor Counsel for the Respondent: Mr D H Bloom QC with Mr B J Sullivan SC and Mr G R Kennett Solicitor for the Respondent: Messrs Baker and Mackenzie