Commissioner of Taxation v Normandy Finance and Investments Asia Pty Ltd

AND: GAYNOR PATRICIA TOWNSING First Respondent HENRY TOWNSING Second Respondent EDWARD TOWNSING Third Respondent

JUDGE: LOGAN, JAGOT AND DAVIES JJ DATE OF ORDER: 21 march 2017

1. The objection decisions of the Commissioner in respect of the objections of the respondents are affirmed.
2. The respondents pay 80% of the costs of the appellant, as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT: 1 On 16 December 2016 we published reasons for judgment in which Jagot and Davies JJ explained why they would allow the appeals (at least in part) and Logan J explained why he would dismiss the appeals (see Commissioner of Taxation v Normandy Finance and Investments Asia Pty Ltd [2016] FCAFC 180). Pursuant to the orders made on 1 February 2017 resulting from the reasons of Jagot and Davies JJ, the parties conferred and have agreed the terms of the orders which ought to be made consequential upon those reasons other than in respect of the issues of the costs below and on appeal. 2 The orders set out above reflect the orders as agreed between the parties and the view we have reached that the issue of the costs of the matters below ought to be remitted for further consideration by the judge who is allocated the matters as a result of the remittal orders (the primary judge having since retired) and that the respondents should pay 80% of the appellant's costs of the appeal. 3 We do not accept the Commissioner's submission that the respondents unnecessarily prolonged the hearing at first instance and increased the Commissioner's costs by running a case on the basis of falsehoods and reconstruction. The principal case which the respondents ran ought not to have succeeded, as Jagot and Davies JJ found. But the purpose of an order for costs is not to punish a party who runs an unsuccessful case. The purpose is to compensate the successful party. In any event, our review of the materials which were before the primary judge indicate that the Commissioner also ran the case in a manner which had the no doubt unintended but still very real effect of substantially increasing the burden on the primary judge and extending the hearing time required, and thereby increasing the costs of all parties. 4 In any event, as we have said, the issue is not one of punishment for conducting litigation inefficiently, a charge of which both parties might be accused in these matters without unfairness to either. The issue is appropriate orders to reflect the compensatory purpose of costs. 5 While it is true that the Commissioner has largely succeeded in the appeals we consider that the issue of costs below is best determined after all issues have been resolved including those issues remitted for further consideration. The potential prejudice to the Commissioner, delay in the resolution of costs orders which are likely to be in the Commissioner's favour to a greater extent than not, is not a sufficient reason for us to attempt to formulate an appropriate orders for costs when issues remain outstanding. As the respondents submitted, making a single decision in relation to costs is the most efficient way to deal with the issue. It is also the most appropriate way, because all relevant circumstances will then be able to be taken into account. 6 Insofar as the costs of the appeals are concerned, we are satisfied that this is a case in which, despite having effectively succeeded on most of the important issues, the respondents should be ordered to pay 80% only of the Commissioner's costs. We do not need to repeat the things that were said in the majority judgment of Jagot and Davies JJ. It ought to be apparent from the majority's reasons that the Commissioner's conduct of the appeals, in common with the conduct of the hearing below, imposed a substantial burden on the Court (and thus, inevitably, the respondents) which was unnecessary. Had the Commissioner focused on the real issues in the appeals, the appeals would not have extended over three days and would not have placed such a burden on the Court or the respondents. We can see no reason why the Commissioner should obtain an order for the whole of his costs to be paid (subject to taxation) in circumstances where, by his own lack of focus and inefficiency, the Commissioner has expended and incurred more costs than the appeals reasonably warranted. 7 We consider that this is a matter where encouragement of litigants to "exercise some discrimination in… [the] selection of claims" to be litigated (Hockey v Fairfax Media Publications Pty Ltd (No 2) [2015] FCA 750; (2015) 237 FCR 127 at [88] per White J) is properly reflected in an order reducing the costs to which the Commissioner should be entitled. The Commissioner not only failed on some issues, but also conducted the appeals in a manner which involved unnecessary complexity, as a result increasing his own and the respondents' costs. While the extent to which the order for costs in the Commissioner's favour should be adjusted inevitably involves a rough and ready estimation of what is fair in all of the circumstances, we consider the respondents' suggestion of a 30% reduction somewhat excessive. We consider that a 20% reduction to reflect the concerns we have identified is sufficient, which means that the respondents should be ordered to pay only 80% of the Commissioner's costs of each appeal. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Logan, Jagot and Davies.

SCHEDULE OF PARTIES NSD 145 of 2016 Respondents Fourth Respondent: HENRY GEORGE TOWNSING