FEDERAL COURT OF AUSTRALIA

Ward v Commissioner of Taxation (No 2) [2016] FCAFC 157

ORDERS

THE COURT ORDERS THAT:

1.    The orders made on 5 October 2016 be varied as follows:

Before order 1 made on 5 October 2016 add:

1A.     On the applicant’s application to amend his notice of appeal in the form annexed to the affidavit of Terence Dwyer sworn 21 June 2016 (affidavit):

(i)    leave be refused to amend to add questions of law and grounds 1 and 2;

(ii)    leave be granted to amend to add question of law and ground 3;

(iii)    otherwise grant leave to amend the notice of appeal in the form annexed to the affidavit.

2.    There be no order as to costs of the proceedings in this Court, to the intent that each party bear his own costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    These reasons deal with the question of costs and should be read with the Court’s principal judgment.

2    In that principal judgment, Ward v Commissioner of Taxation [2016] FCAFC 132, given on 5 October 2016, the Court made the following orders:

1.    The appeal be allowed.

2.    The notice of contention be upheld.

3.    The decision of the Administrative Appeals Tribunal made on 30 November 2015 be set aside.

4.    The case be remitted to the Administrative Appeals Tribunal to be heard and decided again according to law.

5.    Subject to order 6, there be no order for costs of the proceedings in this Court.

6.    If either party wishes to be heard in relation to order 5, they should notify the other side and the Court within 14 days, whereupon orders will be made for the exchange of submissions and the consideration of those submissions by the Court.

The applicant notified the Court that, pursuant to order 6, it wished to make submissions as to the proposed costs order. Directions were made which resulted in short written submissions on behalf of the applicant being filed on 24 October 2016, short written submissions on behalf of the respondent Commissioner being filed on 3 November 2016, and short submissions in reply being filed on 10 November 2016.

Two preliminary points

3    The applicant submitted that the orders made may well require amendment in two respects.

4    First, at [33] of the principal judgment, the Court granted leave to amend the grounds of appeal to add ground 3 but no order gave effect to that grant of leave in the reasons. We agree. We also note that, at [31] of the principal judgment, the Court refused leave to amend to add proposed grounds 1 and 2. Accordingly, we vary the orders set out above so as to add as order 1A, immediately before the present order 1, the following:

1A.    On the applicant’s application to amend his notice of appeal in the form annexed to the affidavit of Terence Dwyer sworn 21 June 2016 (affidavit):

(i)    leave be refused to amend to add questions of law and grounds 1 and 2;

(ii)    leave be granted to amend to add question of law and ground 3;

(iii)    otherwise grant leave to amend the notice of appeal in the form annexed to the affidavit.

5    Secondly, the applicant submitted that either order 2, set out at [2] above, should be set aside or, if left intact, it should be understood as meaning no more than that those two arguments put by the respondent Commissioner are indeed legitimate arguments to be raised upon remitter but are inadequate to support an affirmation of the Tribunal’s decision because the outcome on remitter is indeterminate.

6    We do not accept that submission. In our opinion, it misunderstands the nature of the jurisdiction exercised by the Court on this appeal on a question of law under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). The Court was reviewing the legal correctness of the decision of the Tribunal. It was not deciding the merits of the dispute between the parties. In making order 2 the Court was giving effect to its conclusion at [47] of the principal judgment, on the respondent Commissioner’s notice of contention, that the Tribunal had erred in law in finding that the making of a determination under s 292-465(1)(b) of the Income Tax Assessment Act 1997 (Cth) to disregard the applicant’s non-concessional contributions for the financial year ended 30 June 2011 was consistent with the object of Div 292.

7    In our opinion, order 2 should neither be set aside nor the subject of further explanation.

Costs

8    The applicant submitted that a successful party should not be denied costs merely because he failed on an issue which did not deny him success on the outcome of the appeal. The applicant drew attention to the order that his appeal had been allowed. Reference was made to Firebird Global Master Fund II Ltd v Republic of Nauru (No 2) [2015] HCA 53; 327 ALR 192 at [5]. The applicant submitted that there had been no finding made on appeal which could support the proposition that his success was either a Pyrrhic victory or involved a mixed result, especially in light of the indeterminate outcome of the contention arguments upon remitter. The applicant submitted it was apparent that he had had the complete success he prayed for in his prayers 1 and 3 and there was nothing at all “qualified” about his forensic success. The applicant submitted there was no basis in principle to undertake an apportionment of the costs occasioned by the notice of contention points which were upheld. The applicant submitted that the respondent Commissioner should be ordered to pay the costs of the appeal in accordance with the usual rule that costs follow the event of the appeal.

9    The respondent Commissioner submitted that there should be no order as to costs, to the intent that each party bear his own costs having regard to: first, the mixed success of the parties in relation to the issues presented on the appeal and, secondly, the applicant’s conduct on the appeal.

10    The respondent Commissioner summarised the success and failure of the parties in the following manner:

(a)    the applicant was refused leave to raise for the first time whether the contributions made to BT Super for Life were in fact a “roll-over superannuation benefit”. As a consequence, the applicant also failed to obtain an order that the assessment be set aside;

(b)    the applicant failed to demonstrate that the error complained of in ground 3 of the proposed amended notice of appeal was material;

(c)    the applicant succeeded in relation to the issue raised by grounds 4 through to 6 which replicated in substance grounds 1 through to 3 of the original notice of appeal by making good that the Tribunal had determined the statutory question asked by s 292-465(3)(a) on the basis of a misconception;

(d)    the respondent Commissioner succeeded in demonstrating that leave was not required to rely on the notice of contention and that it did identify a question of law;

(e)    the respondent Commissioner succeeded in demonstrating that the Tribunal had misunderstood the legal question asked by s 292-465(3)(b). That the Court nevertheless exercised its discretion to set aside the decision of the Tribunal and remit the matter did not detract from the success enjoyed by the respondent Commissioner on this issue.

11    The respondent Commissioner submitted that there was no basis for ignoring that the applicant did not obtain all of the relief sought on the appeal and failed completely on each issue added by the proposed amended notice of appeal.

12    The respondent Commissioner also referred to a submission described in the principal judgment at [42] as “at the forefront of the submissions in reply on behalf of Mr Ward” which submission was, the respondent Commissioner submitted, belatedly withdrawn after having put the respondent Commissioner to the task of demonstrating not only that it was incorrect but that no such contention had been maintained before the Tribunal. The respondent Commissioner submitted that that submission, and a further submission on behalf of Mr Ward concerning an alleged concession by the respondent Commissioner in the Tribunal, were unmeritorious and ultimately of no relevance in deciding the appeal notwithstanding they consumed a large proportion of the hearing time before finally being abandoned.

13    In reply the applicants submitted that the invitation to apportion costs should not be accepted for two reasons. First, the apportionment sought was neither specified by the respondent Commissioner nor was it supported by an identification of issues on which each party succeeded and failed. Secondly, the applicant submitted success on appeal was measured by grounds won and lost whereas success at trial is measured by issues won and lost. The applicant succeeded on three out of the four grounds on which he was given leave to rely. It was submitted the applicant was not a partially successful litigant, as contended by the respondent Commissioner, when viewed against those objective facts.

14    In our opinion, the submissions on behalf of the applicant again misunderstand the nature of the jurisdiction exercised by the Court when hearing an appeal on a question of law under s 44 of the Administrative Appeals Tribunal Act. In effect, two errors of law were ultimately contended for and succeeded, one by the applicant (as to special circumstances) and one by the respondent Commissioner (consistency of the determination with the object of the Division), in circumstances where, for the applicant ultimately to succeed in the Tribunal, he must show both that there were special circumstances and that making a determination is consistent with the object of Div 292.

15    The applicant succeeded in showing that the Tribunal had erred in law in relation to what may constitute special circumstances, and the respondent Commissioner succeeded in showing that the Tribunal had erred in law in deciding that the determination was consistent with the object of the Division. On neither of these points does the decision of the Court dictate the ultimate outcome in the Tribunal: see Ward v Commissioner of Taxation at [41] as to it being open to the Tribunal to find that there were “special circumstances”, and at [47] as to there not being only one possible answer in relation to the determination being consistent with the object of Div 292.

16    We also take into account that the applicant failed in so far as his application to amend his notice of appeal was contested. The applicant also failed in his opposition to the respondent Commissioner being permitted to rely on his notice of contention. We note, but do not rely on in relation to costs, what the respondent Commissioner describes as the applicant’s conduct on the appeal.

17    We are satisfied that this is an appropriate case in which to apportion costs as each side has achieved a partial success on the judicial review by the Court of the Tribunal’s decision. But for the respondent Commissioner’s acceptance, as his primary position, that there should be no order as to costs we may have been inclined to make an apportionment in favour of the respondent Commissioner.

Conclusion and orders

18    For these reasons, we would amend the orders as set out at [4] above regarding the applicant’s application to amend the notice of appeal, and decide that there should be no order as to costs of the proceedings in this Court, to the intent that each party bear his own costs.

Associate:

Dated:    18 November 2016