FEDERAL COURT OF AUSTRALIA Robert Bosch (Australia) Pty Ltd v Secretary, Department of Innovation, Industry, Science and Research (No 2) [2011] FCA 1310 Citation: Robert Bosch (Australia) Pty Ltd v Secretary, Department of Innovation, Science and Research (No 2) [2011] FCA 1310 Appeal from: Robert Bosch (Australia) Pty Ltd v Secretary, Department of Innovation, Science and Research [2010] AATA 983 Parties: ROBERT BOSCH (AUSTRALIA) PTY LTD (ACN 004 315 628) v SECRETARY, DEPARTMENT OF INNOVATION, INDUSTRY, SCIENCE AND RESEARCH File number: VID 1181 of 2010 Judge: MURPHY J Date of judgment: 16 November 2011 Date of written submissions: Applicant: 11 and 17 October 2011 Respondent: 11 October 2011 Place: Melbourne Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 7 Solicitor for the Applicant: Minter Ellison Solicitor for the Respondent: Australian Government Solicitor IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 1181 of 2010 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: ROBERT BOSCH (AUSTRALIA) PTY LTD (ACN 004 315 628) Applicant AND: SECRETARY, DEPARTMENT OF INNOVATION, INDUSTRY, SCIENCE AND RESEARCH Respondent JUDGE: MURPHY J DATE OF ORDER: 16 NOVEMBER 2011 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The Applicant pay the Respondent's costs of and incidental to the appeal, to be taxed in default of agreement. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 1181 of 2010 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: ROBERT BOSCH (AUSTRALIA) PTY LTD (ACN 004 315 628) Applicant AND: SECRETARY, DEPARTMENT OF INNOVATION, INDUSTRY, SCIENCE AND RESEARCH Respondent JUDGE: MURPHY J DATE: 16 NOVEMBER 2011 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 In this matter the Secretary, Department of Innovation, Industry, Science and Research was successful in defending an appeal from a decision of the Administrative Appeals Tribunal by Robert Bosch (Australia) Pty Ltd. The question for determination is whether costs should follow the event, or whether there should be some apportionment of costs to take account of those issues in the appeal upon which the Applicant was unsuccessful. 2 Section 43(2) of the Federal Court of Australia Act 1976 (Cth) vests the award of costs in the discretion of the Court, and the Federal Court Rules do not qualify that discretion. The discretion must be exercised judicially, and not arbitrarily or capriciously: Cretazzo v Lombardi (1975) SASR 4 at 11. It is well accepted that the usual costs order is that the successful party will be awarded its costs on a party/party basis but success or failure on separate issues may lead to court to engage in a process of apportionment: Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748 at 48,136. 3 The appeal by Bosch raised two primary issues: (a) whether Bosch was entitled to duty credits for the overseas research and development under reg 13G(5)(c) of the ACIS Administration Regulations 2000 (Cth); and (b) if not, whether under s 94(1) of the ACIS Administration Act 1999 (Cth) Bosch remained entitled to retain the duty credits it had received. Bosch failed on each of these issues and was therefore wholly unsuccessful in its appeal. 4 However, there were two relevant subsidiary issues in the appeal which can be broadly described as the reg 13G(6) issue, and the abuse of process/issue estoppel point. Bosch contends that costs should be apportioned between the parties taking account of its success on these two subsidiary issues. 5 The reg 13G(6) issue was conceded by the Secretary in the hearing on the basis that it had been conceded before the Tribunal. Accordingly, this issue was not before the Court for determination. Bosch contends that the Secretary should have revealed its position on this issue earlier. However, whatever concession the Secretary made before the Tribunal is a matter of record, and not something which it "revealed" in the hearing as Bosch contends. In any event the Secretary consented to Bosch's proposed amendment early on the first morning of the hearing, and little or no time needed to be spent in the hearing on this issue. 6 The abuse of process/issue estoppel point arose in the Secretary's written submissions that Bosch was precluded from mounting its argument as to the operation of s 94(1) because of an unsuccessful application for judicial review earlier made by Bosch. The Secretary was unsuccessful in establishing abuse of process or issue estoppel, although his contentions were arguable. The abuse of process argument was not strong, but it took little hearing time over and above the determination of the issue estoppel point. 7 I do not consider that there was anything unreasonable or unjustifiable in the Secretary's arguments on either of the two issues giving rise to the dispute on costs, and the time taken in dealing with them was not significant. Bosch was unsuccessful in establishing its causes of action in the proceeding. The circumstances do not justify an award of costs to it for those discrete elements of its unsuccessful causes of action or departure from the ordinary rule that costs should follow the event. I order Bosch to pay the Secretary's party/party costs of and incidental to the Appeal, to be taxed in default of agreement. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Murphy. Associate: Dated: 16 November 2011