Falcetta v Commissioner of Taxation

WHERE MADE: PERTH (Heard in Sydney) (Via video link to Sydney)

the court: 1 On 10 May 2004 we published our reasons in these appeals (Falcetta v Commissioner of Taxation [2004] FCAFC 117). In proceeding N1797 of 2003 ('the Falcetta proceeding') we ordered that the appeal be allowed in part and that order 3 of the primary judge dated 21 October 2003 be varied by deleting the reference to '$1,815.00' and substituting a reference to '$2835'. Additionally, we ordered that the respondent's cross-appeal be dismissed. In proceeding N1798 of 2003 ('the Bartlett proceeding') we ordered that the cross-appeal be dismissed. In each of the appeals we ordered that counsel provide written submissions on all issues relating to costs. 2 Those submissions have now been received. In the Falcetta proceeding the appellant submits that the appropriate orders are: (a) The Commissioner pay the costs of Mr Falcetta of the cross-appeal; (b) The Commissioner pay one half of the costs of Mr Falcetta of the appeal. In the Bartlett proceeding the cross-respondent submits that the appropriate orders are: (a) The Commissioner pay the costs of Mr Bartlett of the cross-appeal; (b) There be no order as to costs of the appeal (including, for the avoidance of doubt, no order that Mr Bartlett pay any costs of the respondent occasioned by the appeal before the appeal was discontinued on 26 March 2004). 3 The submissions for the respondent in the Falcetta proceeding agree with the appellant's proposed order (a) but seek to substitute for order (b) that Mr Falcetta pay the costs of the Commissioner of the appeal. In the Bartlett proceeding, the cross-appellant concurs with the orders proposed by the cross-respondent. 4 In relation to the second order in the Falcetta proceeding, the case of the appellant for having the Commissioner pay one half of his costs is that the appeal was successful but not entirely so. While accepting that ultimately it is a matter of impression for the Full Court, the appellant submits that the order as proposed by him is appropriate after taking into account the success of the appeal and the late concession by the Commissioner of the errors by the trial judge requiring the appeal to be allowed at least in part. These matters are more fully explained in the reasons which we published on 10 May 2004. However, as the submissions for the respondent in the Falcetta proceeding state, the appeal was only allowed to the extent of $1020, an amount conceded by the Commissioner as relating to errors of calculation by the learned trial judge. The true impression we have of the appeal is that the appellant was unsuccessful. It is therefore appropriate that the appellant pay the costs of the Commissioner of the appeal. 5 In relation to the second order in the Bartlett proceeding we should make no order as to the costs of the appeal on the understanding that Mr Bartlett will not afford any liability to pay any costs of the respondent occasioned by the appeal before it was discontinued on 26 March 2004. It is not necessary that this be separately specified in the terms of the order.