McDermott Industries (Aust) Pty Ltd v Commissioner of Taxation

7 By a notice disputing facts served pursuant to O 18 r 2 and dated 18 July 2003, the Commissioner disputed that the facts specified in pars 2, 3, 4, 5 and 8 of the first notice were questions of fact to be admitted, asserting that they were conclusions of mixed fact and law. The notice also stated that the matters raised in item 9 were not known or admitted. Additionally the notice admitted items 1, 6 and 7. 8 By a second notice to admit facts ('the second notice') dated 6 October 2003, MIA required the Commissioner to admit the matters according with items 4 and 5 of the first notice (save that the words 'For the purposes' through to 'above' were omitted). 9 The solicitors for the Commissioner responded asserting that it was their view that the proposed changes outlined in correspondence between the parties did not cure defects in the first notice and that, as it was MIA's view that the matter was covered by its evidence, there was little point in incurring costs in debating the formulation of an unnecessary admission. It stated that the Commissioner would only seek to cross-examine a Mr Cuthbertson and would not require two other witnesses for cross-examination. 10 In anticipation of a contest on the facts MIA prepared prior to trial a further affidavit of a Mr Rao with respect to a question of payment, but did not serve that affidavit. 11 On the day of the trial, 2 March 2004, the Commissioner conceded there was no dispute as to the facts the subject of MIA's statement of grounds. As a consequence the need to cross-examine Mr Cuthbertson was avoided and the affidavit of Mr Rao was not filed. No reason was proffered by the Commissioner for making that concession. 12 MIA submits that cost orders should be made in the following form:

1. Save as provided for in order 2, the applicant shall pay the respondent's costs of this proceeding.
2. The respondent shall pay the applicant's costs of proving each of the facts referred to in the applicant's notice to admit facts dated 19 June 2003. 13 In support MIA says that the principles underlying the rule were those spelt out by Byrne J speaking of the equivalent provision in the Victorian Supreme Court Rules in Meadow Gem Pty Ltd v ANZ Executors and Trustees (unreported, Byrne J, 11 June 1996) where he stated: 'Under r 63.18, [which is the equivalent costs order to rule 62.24 of the FCR] prima facie, the disputing party must pay the costs of proof of a fact where a Notice to Admit has been given. The question raised in the present application, then, is whether the party so entitled to the costs should be deprived of those costs. In general, the incidence of party and party costs in litigation does not depend upon reasonableness or upon matters such as whether it was part of a party's cause of action or whether it was within a party's knowledge; it depends upon success. R 35.03 [which provides for the service of notices to admit] is intended to encourage parties, especially those who expect to be ultimately successful, to consider realistically whether they will put the other party to the cost of proving each and every fact. As a general rule, the respondent to a Notice to Admit a fact should, in my view, be in no different position with respect to that fact from the position of a defendant who puts the allegations in the plaintiff's Statement of Claim in issue. Absent some special factor, each of them thereby runs the risk that, if the plaintiff or the party giving the Notice to Admit succeeds, a costs burden must be accepted. It must be remembered, too, that this is not a once and for all decision for it is always open to a party at any later time to admit a fact alleged by an opposing party. The use of costs as an incentive to narrow the issues, to shorten trials and to save costs is found elsewhere in the rules, for example, r 26.18 (offer of compromise not accepted). In my opinion the primary question which a party in receipt of a Notice to Admit a fact or an offer of compromise must address is whether the notice giver will prove that fact and obtain a result not less favourable than that contained in the offer.' 14 In reliance upon that statement, MIA submits that the Commissioner, having chosen to put it to proof of facts which were the subject of the first notice and thereafter established in the proceeding, must pay the costs of such proof. It is said no question of reasonableness arises. Further it is said that there can be no warrant in the circumstances for departing from the general rule applied by FCR O 62 r 24 that the Commissioner should pay MIA's costs of proving each of the facts disputed by the Commissioner in his notice disputing facts dated 18 July 2003. The circumstances said to be particularly relevant are: (1) the Commissioner's acceptance or assumption of the relevant facts for the purposes of his objection decision, statement of facts, issues and contentions, amended assessment, disallowance of MIA's objections; (2) MIA's filing and service of extensive affidavit evidence in the context of no evidence being filed by the Commissioner; (3) MIA's attempts to obtain admissions; (4) the fact that the Commissioner had waited until the day of trial to indicate there was no contest on the facts; and (5) no explanation was proffered by the Commissioner as to why it had not been possible to make a concession at some earlier time. 15 The Commissioner submits that a response to a notice which goes beyond the power afforded by FCR O 18 r 2 should not be visited with a costs sanction imposed by FCR O 62 r 24 unless the notice clearly and unambiguously states a fact, admission of which is sought. Here it is said that the capacity to extract an admission in default of response conferred by the former rule is one given in respect of facts and not questions of law. It is argued that pars 2, 3, 4, 5 and 8 of the first notice sought admissions in relation to questions of law. Therefore, MIA's first notice did not ground the penalty provided for by FCR O 62 r 24. 16 Furthermore it is submitted that the Commissioner did not serve a notice disputing those facts but rather challenged the quality of MIA's notice as one within FCR O 18 r 2. 17 The Commissioner also submits that the second notice suffered the same defects as the first notice. In the latter case, additionally, the Commissioner did not serve a notice disputing MIA's notice so that FCR O 62 r 24 did not come into operation. 18 Additionally, the Commissioner contends that the first notice did not narrow the issues to shorten the trial or to save costs as referred to by Byrne J in Meadow Gem. It is submitted the only potential function of the first notice was to shield MIA's witnesses from cross-examination should the Commissioner wish thereby to supplement MIA's evidence. 19 Additionally, the Commissioner argues that in circumstances such as the present, the giving of a notice to admit facts (and the seeking of admission on pleadings) was inappropriate. This arises, it is said, because proceedings under Pt IVC of the Taxation Administration Act 1953 (Cth), although called 'appeals', are in fact in the original jurisdiction of the Court: TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175. The result is that the Commissioner comes to argue events wholly within the knowledge of taxpayers. Consequently, it is contended adversarial procedures appropriate to a contest between parties to a commercial or common law dispute are inappropriate to judicial review proceedings. The Commissioner also says the jurisdiction to vary the award of costs under FCR O 62 r 24 should not be exercised having regard to the circumstances set out above. The Commissioner submits, therefore, that MIA should be ordered to pay the Commissioner's costs on the usual basis. 20 I agree with MIA's submission in reply that the operation of the presumption established by FCR O 62 r 24 does not depend on the nature of the proceedings or becomes unreasonable in proceedings such as the present. There is nothing in the term of the FCR which suggests it should be so confined. 21 The issue here should be decided on the basis of whether or not FCR O 62 r 24 applied in the circumstances. 22 It is apparent from examination of Form 25 that a notice to admit facts is indeed confined to the admission of facts and the admission of authenticity of documents. Form 26 is similarly structured. The first notice was not compliant with Form 25, in that pars 2, 3, 4, 5, and 8 sought admissions of mixed questions of law and fact rather than of fact only. It operated, therefore, as a notice to admit facts only in respect of pars 1, 6, 7 and 9. The first three of those were admitted and the last was not admitted. 23 The second notice sought again to obtain admissions of what had substantially been par 4 and par 5 in the first notice. The deletion of the words 'for the purposes of its business referred to in paragraph 2 above' from the second notice may arguably have had the effect of confining that item in the latter notice to an issue of fact. It has to be read with par 2 in the second notice which required a conclusion as to a mixed question of fact and law. However, MIA does not place any reliance on the second notice in seeking the special costs order. 24 MIA disputes that any of the matters to which its notices related involve a mixed question of fact and law. It says the matters the subject of pars 2, 3, 4, 5, 8 and 9 of the first notice were matters alleged in pars 1(c), 2, 3, 4(c) and 5 of MIA's statement of grounds dated 18 April 2002 and that each was patently a question of fact. It argues this was acknowledged by the Commissioner's counsel at trial when he referred to pars 1 - 11 as involving matters of a factual character requiring findings to be made by the Court, which were then approached by the Court as such. 25 I am unable to agree with MIA that the admissions sought in the first notice identified by the Commissioner as mixed questions of fact and law were not exactly that. They were clearly not only issues of fact. Their treatment at trial cannot preclude a true characterisation of them. I agree with what has recently been said by Gyles J in Multigroup Distribution Services Pty Ltd v TNT Australia Pty Ltd [2001] FCA 227 at [6] that if a matter specified in a notice to admit facts is not a fact, there will be no implied admission and no costs consequence. The large part of the first notice therefore should have no costs consequence. 26 Order 62 r 24 is expressed in mandatory terms. So far, therefore, as the first notice related to facts which were disputed but then proved, MIA would be entitled to the application of that order in its favour. The only item being an issue of fact that was disputed is item 9 in the first notice and that was proved as a consequence of the Commissioner's admission. Therefore the special costs order sought by the applicant can operate only in respect of that item. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson.

Counsel for the Applicant: N Young QC and W Harris

Counsel for the Respondent: Slater QC and RL Hamilton

Solicitor for the Respondent: Australian Government Solicitor

Date of Last Written Submissions: 10 September 2004