FEDERAL COURT OF AUSTRALIA

Rio Tinto Ltd v Commissioner of Taxation [2005] FCA 1408

RIO TINTO LIMITED, HAMERSLEY IRON PTY LIMITED and ARGYLE DIAMONDS LIMITED v THE COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA

V548-556 OF 2003

SUNDBERG J

30 SEPTEMBER 2005

MELBOURNE

THE COURT ORDERS THAT:

1.                  On or before 28 October 2005 the applicants file and serve on the respondent a document allocating each of the documents in their List of Documents dated 31 May 2005 and their Supplementary List of Documents dated 20 July 2005 (“the Lists”) to one or more of the classes 2 to 5 set out in Schedule 3 of the firstmentioned List.

2.                  On or before 28 October 2005

(a)                the applicants file and serve on the respondent any notice of motion and further supporting affidavit seeking leave to mask portions of documents in the Lists (“the documents”) indicating the ground or grounds on which leave to mask each document is sought;

(b)               the applicants file and serve on the respondent a folder marked “Confidential Masked Documents” containing copies of the documents in a masked form, which folder may not be inspected by any other person without the leave of the Court;

(c)                the applicants file a folder marked “Confidential Unmasked Documents” containing copies of the documents in an unmasked form, which folder may not be inspected by the respondent or by any other person without the leave of the Court.

3.                  Insofar as the respondent’s motion notice of which was filed on 1 July 2005, or motions made orally by the respondent’s counsel at hearings on 7 July, 5 August or 24 August 2005, sought:

(a)                the filing and serving of separate lists of documents by Hamersley Iron Pty Limited and Argyle Diamonds Limited; and

(b)               the inclusion of documents in the Lists that are believed by the applicants to be already in the possession, custody or control of the respondent,

that notice of motion, or motions, be dismissed.

4.                  There be no order as to costs in respect of the respondent’s motion notice of which was filed on 1 July 2005 to the extent that the relief sought therein was determined by the reasons given on 22 September 2005 in Rio Tinto Ltd v Commissioner of Taxation [2005] FCA 1335.

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

REASONS FOR ORDERS

1                     On 22 September 2005, in Rio Tinto Ltd v Commissioner for Taxation [2005] FCA 1335 (the reasons), I ordered that on or before 29 September 2005 the parties bring in short minutes of orders to reflect the reasons together with any submissions as to the costs of the motion notice of which was filed by the respondent on 1 July 2005. The parties have not been able to agree upon the appropriate orders. Each has submitted draft orders for my consideration, and made written submissions as to costs. Having considered the draft orders and those submissions, I now give my reasons for the orders that I have made.

2                     Order 1 is uncontroversial. It appears in both sets of draft orders.

3                     Though it is not included in the respondent’s draft orders, Order 3 is also uncontroversial. The applicant submitted that it should be included in order “to avoid any doubt that the issues there described have been disposed of”. I agree.

4                     I had some doubt as to the practicality of each proffered version of Order 2. In my opinion, Order 2 is a workable compromise.

5                     Finally, I think it appropriate that I make no order as to costs. (That was the respondent’s position. The applicant submitted that I should reserve costs, alternatively that the costs of each issue dealt with in the reasons be awarded to the successful party on that issue.) First, reserved costs tend to become “lost” in the totality of the costs in significant litigation such as the instant proceedings. Secondly, the issues dealt with in the reasons were discrete issues of an interlocutory nature. It is desirable that such costs be dealt with when the matter is fresh in the minds of the Court and the parties, rather than deferring them to a later date. Thirdly, it would be extremely difficult for a taxing officer to apportion costs between the various issues dealt with in the reasons.

Associate:

Dated:              30 September2005