FEDERAL COURT OF AUSTRALIA

COSTS - application for judicial review - motions to strike out amended application - question of competency of amended application - stage of proceedings at which notice of objection to competency given - respondents substantially but not completely successful - whether open to Court to make costs order - form of costs order.

Federal Court Rules, O 52 r 18(3), O 54 r 4

Coal and Allied Operations Pty Ltd v The Industry Research and Development Board (Beaumont J, Federal Court of Australia, 16 November 1992, unreported), considered

ROBINSWOOD PTY LTD (ACN 008 844 488) v THE COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA and CLIVE ROSS

WAG 56 OF 1997

R D NICHOLSON J

PERTH

11 JUNE 1998

THE COURT ORDERS THAT:

The applicant pay 85% of the respondent’s costs of their motions for strike out.

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

EX-TEMPORE REASONS FOR JUDGMENT ON COSTS

HIS HONOUR:  The submissions in relation to costs have been made in written form and it is common ground the issue of costs should be resolved upon those written submissions.

The first question which arises is whether there should be any order as to costs, that is, whether it is open to the Court to make such an order.  In the applicant’s supplementary submission on costs it is submitted the decision of Beaumont J in Coal and Allied Operations Pty Ltd v The Industry Research and Development Board (Beaumont J, Federal Court of Australia, 16 November 1992, unreported) has the effect there should be no order for the costs of the proceedings.

That case was one in which the applicant sought judicial review pursuant to the Administrative Decision (Judicial Review) Act 1903 (Cth) of what was claimed to be a decision made by a Tax Concession Committee.  In the course of submissions a question arose as to the competency of the application and in the event senior counsel for the applicant conceded there was no reasonable argument that there was a relevant decision under an enactment within the meaning of that Act.  The consequence was the application had to be dismissed.  The question then arose as to costs.  Beaumont J referred to O 54 r 4 of the Federal Court Rules which deals specifically with proceedings brought under that Act.  It provides that a respondent who objects to the competency of an application shall within 14 days after receiving service of the application file and serve upon the other parties to the proceeding a Notice of Objection to Competency stating briefly the grounds of objection.  In the Coal and Allied case no such objection was filed or foreshadowed because the issue of competency arose, as I have said, during the course of the hearing.

Beaumont J also referred to O 52 r 18 which enables a respondent to move on notice at any time for an order dismissing an appeal as incompetent.  Sub-rule 18(3) provides that:

“If a respondent does not move under sub-rule (1) but the appeal nevertheless is dismissed by the Court as incompetent, the respondent shall not, unless the Court otherwise orders, receive any costs of the appeal, and the Court may order that he [the respondent] pay the appellant any costs of the appeal proving useless or unnecessary”.

Beaumont J considered the first limb of sub-r 18(3) provided some analogy and guidance for the purpose of the case before him.  He concluded the provisions of O 54 r 4 were clearly intended to encourage a respondent to an application to inform the applicant at the earliest possible date that jurisdiction is in issue.  That not having been done in that case he considered it was appropriate in those circumstances that there should be no order for the costs of the proceeding.  Clearly he was guided to that conclusion by the analogy of sub‑r 18(3) of O 52.

If it is the case that O 52 r 18(3) is a guide to the application of O 54 I nevertheless consider the circumstances in the present case may be significantly distinguished from those in the Coal and Allied case.  Here the Court granted leave to the respondents to file the Notice of Objection to Competency on 17 December 1997.  The applicant was at all times aware by reason of the Notice of Motion filed and served on 25 June 1997, the detailed submissions filed on 7 July 1997 in support of that Notice of Motion and the Notice of Objection to Competency to the amended application filed and served on 21 November 1997 not only of the grounds upon which the respondent sought to strike out the application, and subsequently the amended application, but also of the arguments upon which the respondents would rely to support those grounds.  In my opinion, those circumstances provide a significant factual distinction from the circumstances which were before Beaumont J.  Here the objection to competency was known well before the hearing in substance if not given in form.  In my opinion the basis for following O 52 r 18(3) by way of analogy is therefore not present.  I therefore conclude there is no bar to the Court making an order for costs for the reasons submitted on behalf of the applicant.

The second aspect is what order for costs should be made.  That is, what costs order is appropriate in all the circumstances.  The applicant’s case is that it was successful in maintaining its amended application with respect to remission notices.  Further, that the Court allowed the decisions set out in pars A8, A9 and A10 of the amended application to be reviewed.  Additionally, the applicant asserts the amended application will proceed with respect to s 39B of the Judiciary Act and the respondents have not been successful in having the amended application struck out.  The emphasis is made that the respondents should be seen as only partially successful in relation to that application which will proceed on important decisions.

In the respondents’ submission they have been successful in having the majority of the amended application struck out.  They point to the fact that pars A8, A9 and A10, the only paragraphs to survive in the amended application, were not the subject of objection by the respondents on the grounds of jurisdictional competency.  Additionally it is submitted the respondents were only unsuccessful in seeking to strike out those paragraphs under O 20 r 2 of the Federal Court Rules.  Further it is submitted the alleged decisions or conduct referred to in the relevant paragraphs which the Court ordered to be struck out, and in particular par A1 of the amended application, clearly constituted the largest part of the subject matter of the amended application and the majority of submissions.

In my opinion the result of the judgment dated 24 April 1998 was the respondents had a significant but not total victory.  I do not consider in those circumstances the applicant should be compelled to meet all the respondents’ costs.  However the applicant’s case pursued matters which, for reasons given, were randomly cast without regard to the law as I presently understand it.

In my opinion the respondents are entitled to an order that the applicant pay eighty‑five per cent of their costs on their motions for strike out.

Associate:

Dated:              23 June 1998