FEDERAL COURT OF AUSTRALIA

Schokker v Commissioner of Taxation [1999] FCA 1311

PRACTICE AND PROCEDURE – costs – appeal allowed – appropriate costs orders – appellant unrepresented at first instance – represented by senior counsel on appeal – whether any need for special costs orders – no point of principle.

HANK BERNARD SCHOKKER v COMMISSIONER OF TAXATION OF

THE COMMONWEALTH OF AUSTRALIA

WG 21 OF 1998

FRENCH, DRUMMOND & CARR JJ

17 SEPTEMBER 1999

PERTH

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The respondent pay the appellant’s costs of and incidental to the appeal.

2.                  The order of the learned primary judge in regard to costs be varied so that the respondent be ordered to pay the appellant’s taxed costs of the hearing at first instance of the issue on which the appellant has been successful on appeal.

3.                  Save for this variation, the order of the learned primary judge as to costs is affirmed.

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

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

THE COURT:

1                     On 12 May 1999 the Court delivered judgment allowing this appeal.  Orders were made setting aside so much of the trial judge’s order, dismissing the appellant’s appeal against the decision of the Administrative Appeals Tribunal, as related to the deductibility of the expenditure which was the subject matter of the appeal to this Full Court.  The appeal against the Tribunal’s decision in relation to those expenses was allowed and that matter was remitted to the Tribunal for re-determination.  The parties were given liberty to apply by written submission on the question of costs.  The appellant has filed written submissions seeking an order for costs in his favour in respect of the proceedings at first instance and on the appeal.  The respondent, in his submissions, contends that there should be no order for costs in relation to the appeal and that an appropriate order would be that the appellant pay 75% of the respondent’s costs at first instance.  The appellant has filed submissions in reply.  The substantive and procedural history of this matter can be ascertained by reference to the reasons for judgment published at first instance and on appeal.  We shall not refer to the details contained in those reasons.  Nor is it necessary, in our view, to summarise the respective submissions of the parties.

2                     In our opinion, the appellant should have his costs of the appeal.  He was successful in relation to the matter which formed the subject of his appeal.  There is merit in some of the respondent’s submissions to the effect that the appellant was not successful in respect of several of the matters upon which he relied.  It is also true, as the respondent points out in his submissions, that substantial costs were incurred in relation to the matter raised by one member of the Court on appeal which resulted in an unsuccessful application for leave to amend the notice of appeal.  Nevertheless, the appellant succeeded in the appeal and, in our opinion, his conduct was not such as to make it appropriate to deprive him of any part of his costs.  The appellant seeks detailed orders that these costs include reference to representation by senior counsel and also specific reference to disbursements.  We think that those matters can be safely left to the Registrar for assessment of what amount is reasonable in all the circumstances. 

3                     In respect of the costs at first instance, we have read all that has been put by either side.  The appellant was unsuccessful at first instance in relation to several matters which were not the subject of any appeal.  His Honour ordered the appellant to pay the whole of the respondent’s costs.  In our view, the appropriate order would be one whereby the learned trial judge’s costs order was modified to reflect the appellant’s eventual success in relation to the expenses which formed the subject matter of the appeal.  That is, an order should be substituted which provides that the appellant, (who was unrepresented before his Honour) should be entitled to recover such disbursements as he incurred at first instance in relation to the expenses which formed the subject matter of the appeal as the Registrar considers were reasonably incurred in relation to that issue.  He should not be obliged to pay any proportion of the respondent’s costs at first instance in relation to those expenses, which costs should be borne by the respondent himself.  Otherwise the appellant should pay the balance of the respondent’s costs in respect of the issues adjudicated upon by the learned trial judge and in respect of which there was no appeal.  Any requisite apportionment can, in our opinion, be safely left to the Registrar for assessment. 

Associate:

Dated:              17 September 1999