Thiess Bros (Pacific) Pty Ltd v Chief Collector of Taxes [1982] PNGLR 385

• Jurisdiction: Papua New Guinea
• Citation: [1982] PNGLR 385
• Date: 03 December 1982
• Court: Supreme Court
• Year: 1982

Full Title: Thiess Bros (Pacific) Pty Ltd v Chief Collector of Taxes [1982] PNGLR 385

Supreme Court: Kidu CJ, Pratt J, Bredmeyer J

Judgment Delivered: 3 December 1982

1 Costs—Income Tax Review Tribunal—power to award costs—appeal to National Court and then to Supreme Court—no power in tribunal to award legal costs on appearances before it—hence, no power in either National Court or Supreme court to award costs before tribunal

2 INCOME TAX—Appeals—Review Tribunal—Jurisdiction—Costs—No Power to award costs—No power in National or Supreme Court to order costs—Income Tax Act 1959—National Court Act 1975, (Ch 37), s6(2), s8(e)—National Court Rules, O91 r1–r4—Supreme Court Act 1975 (Ch 37), s8—Constitution, s184(1) and (2).

3 COSTS—Taxation Review Tribunal—Costs before—No power in Tribunal to award costs—No power in National or Supreme Courts to award costs before Tribunal.

A Review Tribunal constituted under s240 of the Income Tax Act 1959 has no power to award legal costs on matters heard before it.

The National Court and the Supreme Court have no power to award costs of the proceedings before the Review Tribunal.

On an appeal from the Review Tribunal to the National Court (or an appeal therefrom to the Supreme Court) those courts have power to award costs of the appeal.

Birkman, In re; Ex parte Pickering (1860) 1 QSCR 14, Federal Commissioner of Taxation v Mantle Traders Pty Ltd (1980) 49 FLR 256, Garnett v Bradley (1878) 3 AC 944, Letang v Cooper [1965] 1 QB 232, Shell Co of Australia Ltd v Federal Commissioner of Taxation [1931] AC 275, Thiess Bros (Pacific) Pty Ltd v Chief Collector of Taxes [1977] PNGLR 62 and Thiess Bros (Pacific) Pty Ltd v Chief Collector of Taxes [1978] PNGLR 474 referred to

Summons.

This was an application by a successful appellant taxpayer for an order for costs incurred by it in proceedings before a Taxation Review Tribunal.

___________________________

Kidu CJ:

This is an application by Thiess Brothers (Pacific) Pty Ltd for costs incurred by it in proceedings before the Taxation Review Tribunal. These costs amounted to K12,400.

The appellant appealed to the National Court from a decision of the Review Tribunal. It was unsuccessful and appealed to the Supreme Court which upheld the appeal and ordered costs in its favour both for the proceedings, before it and before the National Court: (Thiess Bros (Pacific) Pty Ltd v Chief Collector of Taxes [1978] PNGLR 474). Liberty was granted to either party to apply for costs of the proceedings before the Review Tribunal. For some unknown reason, it took four years for this application to be made.

The Income Tax Act 1959, does not empower the Review Tribunal to award costs. In fact, the practice has been one of parties (taxpayer and Chief Collector of Taxes) paying their own costs of proceedings before the Review Tribunal.

Mr Fuller, for the appellant, submitted that the Supreme Court had the power to make orders for costs of proceedings before the Review Tribunal. He relied on s256 of the Income Tax Act, O91 of the National Court Rules and s8 of the Supreme Court Act 1975.

S256 of the Income Tax Act provides:

The National Court may, on the hearing of an appeal under this Division, make such order as it thinks fit and may by the order confirm, reduce, increase or vary the assessment.

S8 of the Supreme Court Act provides:

"For the purpose of this Act, the Supreme Court may, if it thinks it necessary or expedient in the interest of justice to do so—

(a) . . .; and

(b) . . .; and

(c) . . .; and

(d) . . .; and

(e) exercise in relation to the proceedings of the Court any other powers that may for the time being be exercised by the National Court on appeals or applications . . . "

Mr Geddes, for the Chief Collector of Taxes, argued that there were two questions to be determined:

1. Whether an unsuccessful taxpayer who appeals from a decision of the Review Tribunal can ask for his costs of proceedings before the Tribunal from the National Court or the Supreme Court.

2. If the answer to Q.1 is "Yes", should the National Court or Supreme Court exercise its discretion.

The power to award costs is of statutory creation. A paper delivered at the 1975 Summer Judicial Conference in Canberra, Australia, sums up the history of how both the common law courts and courts of equity in England were vested with the power to award costs and I quote from the paper:

"Jurisdiction to award costs, and so to control them, is entirely the creation of statute. At Common Law neither the plaintiff nor the defendant was entitled to costs. The Statute of Gloucester, 6 Edw. I, C. 1, (1278) (so called because it was enacted at Gloucester) gave costs to a plaintiff who received damages in a real action, but only to a plaintiff. Subsequent statutes extended the plaintiff's right to recover costs in any...