AusNet Services Ltd v Commissioner of Taxation

1. The applicant has leave to file by way of supplementary submissions two aide's - memoire in the form of exhibit "DP-1" and "DP-2" of the Affidavit of David Mark Paolini filed on 18 July 2024 and must serve the same forthwith.
2. The respondent has leave to file and serve on or before 2 August 2024 a supplementary submission in like form to the aide's - memoire and of no greater length than the same.
3. Costs reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

LOGAN J: 1 Although successful in what was a minor interlocutory practice and procedure issue, resolved for reasons given briefly and ex tempore on the day of hearing, the appellant has taken the unusual course of requesting more formal reasons for judgment. I therefore provide the following. 2 The interlocutory controversy for resolution is whether, as it seeks by interlocutory application, to allow the appellant to supplement its outline of submissions by a series of flow chart diagrams. The power to make the order sought is found in s 25(2B)(ab) and (c) of the Federal Court of Australia Act 1976 (Cth). 3 This is a significant tax appeal. I am conscious that written outlines of submissions have been filed in accordance with standard directions. 4 A perusal of what is proposed to be filed for the appellant reveals that it is likely to be helpful. I do not doubt it was prepared in good faith for that purpose. The respondent Commissioner was resistant to this being done consensually, apparently because at the time his counsel were taking advantage of the Winter Law Vacation observed within the State court system. Upon inquiry of the Commissioner's counsel who appeared today, it became apparent that any supplementary submission in response could be prepared within a week. Given the date of hearing, there is no procedural fairness reason which would inhibit the filing of such a response (which should take like form to that proposed by the appellant). That will still allow the members of the Full Court time to read the supplementary submissions before the hearing. 5 In the circumstances, it is to be lamented that it was necessary to devote court time to the resolution of an issue which should have been able to be resolved consensually. Even so, I shall resist the temptation to order costs against the respondent and just reserve costs. Leave to file the proposed supplementary submission will be granted, subject to like leave being granted to the respondent to file a submission in like form on or before 2 August 2024. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan.