FEDERAL COURT OF AUSTRALIA

Mitsui & Co (Australia) Ltd v Commissioner of Taxation (No 2) [2012] FCA 437

THE COURT ORDERS THAT:

1.    Unless the parties otherwise agree, Mitsui is to pay the Commissioner’s costs as between party and party, save that the Commissioner is not entitled to the costs of the affidavit and report of Professor Crommelin.

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

REASONS FOR JUDGMENT

1    The parties have made written submissions as to costs in accordance with the orders of the Court made on 13 December 2011 (Mitsui & Co (Australia) Ltd v Commissioner of Taxation [2011] FCA 1423).

2    The parties accept, that save in one respect, the ordinary rules as to costs should apply, namely, that costs follow the event, and that the applicant (Mitsui) should pay the costs of the respondent (the Commissioner). The one point of difference between the parties relates to whether the Commissioner should be entitled to the costs associated with the affidavit and report of Professor Michael Crommelin, which was filed in this proceeding by the Commissioner. Mitsui contended that the costs order in favour of the Commissioner should exclude any costs in respect of the affidavit and report of Professor Crommelin.

3    Professor Crommelin is the former Dean of the University of Melbourne Law Faculty and is a distinguished legal scholar, particularly, in relation to mining and petroleum law. Professor Crommelin’s affidavit and report related to the legal regime affecting the grant of petroleum mining tenements.

4    Mitsui contended that Professor Crommelin could only give opinion evidence as an expert within the area of his expertise, which in this case was the content and application of the law. This subject-matter, said Mitsui, was not a proper subject for expert evidence. Prior to the hearing, Mitsui objected to the tender of Professor Crommelin’s affidavit and report on this ground. Mitsui’s objection was conceded by the Commissioner and Professor Crommelin’s affidavit and report was tendered only as a submission.

5    Mitsui contended that in those circumstances, the procuring by the Commissioner of the affidavit and report from Professor Crommelin was a “luxury” in the litigation. Those costs, said Mitsui, did not fall within the definition in the Federal Court Rules 2011 of costs as between party and party costs, namely, costs that have “been fairly and reasonably incurred”.

6    In my view, there is substance in Mitsui’s submission and the submission is accepted. Accordingly, I will order that, unless the parties otherwise agree, Mitsui is to pay the Commissioner’s costs as between party and party, save that the Commissioner is not entitled to the costs of the affidavit and report of Professor Crommelin.

Associate:

Dated:    30 April 2012