Stokes v Federal Commissioner of Taxation S114/1994 [1995] HCATrans 257 (16 August 1995)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S114 of 1994

B e t w e e n -

KERRY MATTHEW STOKES

Applicant/Respondent

and

THE FEDERAL COMMISSIONER OF TAXATION

Respondent/Applicant

Application for remitter and application to strike out statement of claim

TOOHEY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 16 AUGUST 1995, AT 9.28 AM

Copyright in the High Court of Australia

MR D.H. BLOOM, QC: May it please the Court, in that matter, I appear with my learned friends MR A. ROBERTSON and MR R.S. NORTON, for the plaintiff in the proceedings and for the applicant in the second of the notices of motion. (instructed by Clayton Utz)

MR B.J. SHAW, QC: If your Honour pleases, I appear with my learned friend, MR G.T. PAGONE for the Commissioner in each of the summonses. (instructed by the Australian Government Solicitor)

HIS HONOUR: I am faced with two applications. What is the proposal, Mr Bloom, that they be dealt with together or sequentially and, if so, in what order?

MR BLOOM: Your Honour, we would see it as appropriate, perhaps, to deal with the remitter first. Although it was second in time, it was certainly announced to the other side first and we would, with respect, suggest that that would be the appropriate way to deal with it.

HIS HONOUR: It might be difficult to disentangle one from the other but I will see what Mr Shaw has to say. Mr Shaw?

MR SHAW: Your Honour, in our submission, it is appropriate for you to hear them both together as matters reflecting on the nature of the motion to strike out are obviously relevant to the question of whether or not there ought to be a remitter at this point.

HIS HONOUR: I can see that; I can see the force of that. I suppose if there had been no motion to strike out, we probably would not be here this morning.

MR SHAW: No, it would have been quite different. And, your Honour, if the motion to strike out were to go on and were to fail for one reason or another and it was left as a matter in which evidence had to be taken, I would be in a very difficult position in trying to resist remitter. The whole point of the strike out motion is that, if we are right, the matter can be dealt with now and appropriately here.

HIS HONOUR: Well, I suppose that is so, but only on the basis that I would be driven to express a view as to the effect of Richard Walter upon the factual situation that exists here - - -

MR SHAW: Yes, that is true, your Honour, on that basis.

HIS HONOUR: - - -from which decision and appeal would almost inevitably go, one way or the other.

MR SHAW: Your Honour, maybe the appropriate course is to do what happened in Richard Walter.

HIS HONOUR: That thought had crossed my mind too. It really depends on to what extent there is a factual dispute between the parties.

MR SHAW: Or can be.

HIS HONOUR: Or can be, yes. I just have at the back of my mind, I suppose, that if this matter were thought to be appropriate for a sitting of the whole Court, then I would have expressed a view on the matter. If the matter went by way of appeal from me, obviously I would not be sitting, which is just a consideration.

MR SHAW: Your Honour, all that really suggests is that if it is a matter appropriate to be heard here, perhaps the Richard Walter course is exactly the thing to do. If one needs to formalise that, we easily could. But your Honour would certainly have power to state a question or - I have forgotten exactly what happened in Richard Walter. I think that is what happened. It was removed from the Federal Court and then Justice Mason reserved a question or stated a question for the Full Court, I think.

HIS HONOUR: Yes, that is so. That again depends on the area of dispute, if there is any area of dispute on the facts.

MR SHAW: Any possible area of dispute on the facts.

HIS HONOUR: Yes. I will go back to Mr Bloom, Mr Shaw.

MR BLOOM: If your Honour pleases. The reason these proceedings were commenced in the High Court in the first place was because of the uncertainty surrounding the decision of the Full Federal Court in David Jones' Case as to the ambit of section 39B of the Judiciary Act. That uncertainty has now been removed by Richard Walter.

HIS HONOUR: I do not quite understand why that would be a compelling reason for bringing the proceedings in this Court, particularly if there are going to be any factual matters that have to be aired.

MR BLOOM: Originally, your Honour, it was to take advantage of the fullness of section 75(v) of the Constitution, and what was unclear as a result of David Jones was whether the jurisdiction of the Federal Court, conferred by section 39B, was coterminous. It would now seem that relevantly it is and had we known that at the time we commenced, the proceedings would undoubtedly have been commenced at the New South Wales registry of the Federal Court.

That uncertainty, as we say, your Honour, has been removed and that was the purpose of the stated case in Richard Walter, to remove that uncertainty, and the parties requested that the case be stated because they were faced by that 2:1 decision of the Full Federal Court in David Jones. In this case, the pleadings have not been closed and there are two real issues that arise once they are closed. The first is the extent to which evidence is admissible outside the notices of assessment themselves. This was a matter that your Honour dealt with particularly in Richard Walter - the question of the adjustment sheet and correspondence which accompanies the assessments and its admissibility. Once that question, which is of course a question of law, has been determined there will be a need for somebody to find facts based upon what is or is not admissible.

The Commissioner has suggested in an affidavit that we received only the day before yesterday that he may wish to call evidence from a number of people. Whether that is so or not remains to be seen, but if he does it will obviously be necessary for somebody to hear that evidence and to make findings of fact accordingly. So we would, in all those circumstances - - -

HIS HONOUR: I rather took that to be a sort of fall-back position.

MR BLOOM: I do not know what it is, your Honour, but it is some sort of position; but upon the assumption that he does not want to call evidence, there is still the very real question of what is admissible and also, given what is admissible, what findings ought to be made, what conclusions ought to be drawn as to the provisional or tentative nature of these assessments.

HIS HONOUR: Is that something that is susceptible of being the subject of a case stated? I can see difficulties.

MR BLOOM: I would see difficulty in it, yes, your Honour. They would be highly contentious facts. I mean, it is of the essence of our case that the three notices evidence nothing but provisional tentative assessments, if that, and it is of course the Commissioner's case to the contrary. There are also questions, your Honour, behind that of the Commissioner's ability to make three determinations under Part IVA; whether at the same time or one after the other in relation to the same taxpayer, the same transaction where his powers under Part IVA under section 177F are really limited to determining that an amount of a tax benefit is included and here we have three amounts in respect of the same transaction included.

HIS HONOUR: Well, that is so, but given the fact that there are three assessments that taken in isolation, I suppose, could be the subject of a case stated.

MR BLOOM: As to whether his power is spent once he exercises it or as to whether the three of them constitute together one exercise or a non-exercise, they are matters really of fact, your Honour, which would need to be explored, with respect, before this Court should deal with it. We would see it as highly undesirable that this Court should be troubled by this matter at this stage and really is a matter, in our respectful submission, that ought to go to the Federal Court and be dealt with there. It may well be that after the necessary findings of fact have been made by a Federal Court judge that a case could be stated to the Full Court of the Federal Court and from there up to the High Court if it were necessary.

HIS HONOUR: Yes, Mr Bloom, I do not wish to go back and forth from one counsel to another but what do you say about Mr Shaw's submission that the two applications should be heard together?

MR BLOOM: Your Honour, again, in our respectful submission, it is quite clear that - and your Honour will have seen, perhaps, the decision of Justice Hill in the Federal Court in Darrell Lea - it is quite clear that this raises an issue that was not determined by the High Court in Richard Walter, and it does seem to us again that if your Honour was simply to exercise the power of remitter to the Federal Court this would be a matter more appropriately dealt with by the judge in the Federal Court.

First of all, the pleadings could be closed and that would perhaps be a relevant factor and then, if my learned friend wished to proceed with his application for strike out it could be proceeded with there.

HIS HONOUR: But if I am faced with an argument from Mr Shaw that Richard Walter effectively disposes of the issue in this case and whatever view I might take of that argument - - -

MR BLOOM: He must do so, your Honour, as we understand the law, and in so far as his initial attack is based on Order 26 rule 18(1) do so upon the basis of the statement of claim and statement of claim alone and on that basis he does so without the benefit, one would think, of section 177 of the Income Tax Assessment Act at all.

HIS HONOUR: The defendant must take the statement of claim as the defendant finds it for the purpose of that exercise at any rate.

MR BLOOM: And cannot go further. If he were able to demonstrate a lack of a reasonable cause of action on the pleading itself, he could then, as we understand it, for the purpose of seeking to have your Honour strike out the proceedings or stay the proceedings go to other evidence, but he is limited really to the statement of claim, in our respectful submission, and Sir Garfield Barwick said as much in the General Steel Case, which is, of course, the leading authority.

HIS HONOUR: But in arguing that there should be a remitter are you not driven to saying something about the implications of Richard Walter?

MR BLOOM: Strictly speaking, no, your Honour.

HIS HONOUR: If, for instance, it was clear beyond argument that the reasoning and the decision in Richard Walter applied to this situation, then there would be, of course, much force in the argument that the writ should be struck out or the statement of claim should be struck out.

MR BLOOM: If it were clear beyond argument that that was the case and on the basis of the statement of claim it could be put then, yes, it may be that your Honour would be doing something futile, but, again, that is a matter which will take half a day to argue, as we understand it, and it is a matter which, in our respectful submission, ought to be dealt with by a Federal Court judge and not by your Honour for the very reason your Honour gave, that if your Honour were to deal with it, it may well be the subject of leave to appeal and most certainly would be to one party or the other in those circumstances and that is not a situation which in our experience the High Court wants to find itself in.

HIS HONOUR: Yes, thank you, Mr Bloom.

MR BLOOM: If I might just add, as Mr Robertson reminds me, deprived of the benefit of what the Federal Court has to say. If your Honour please.

HIS HONOUR: In the circumstances I will deal with the remitter application first. Now, there is a time problem, as counsel appreciate. I am sitting at 10.15 on a matter which I do not think will take much of the day, it would appear, and as soon as I am free I am prepared to come back and continue this application. I do not know how counsel are placed.

MR BLOOM: Shall we commence now, your Honour? We are in your Honour's hands, but I would not have thought that the motion would take more than 10 minutes or so. Perhaps if we commenced it and, if necessary, if your Honour adjourned.

HIS HONOUR: Yes. Let us see how we go, Mr Bloom.

MR BLOOM: If your Honour pleases. The motion was filed on 20 June 1995 and seeks simply a remitter pursuant to section 44(2A) of the Judiciary Act, which entitles the High Court:

upon the application of a party or of the High Court's own motion, remit the matter, or any part of the matter, to the Federal Court of Australia.

The power is not expressed in terms of any particular registry, your Honour. It simply refers to the Federal Court of Australia.

HIS HONOUR: It is the practice, I think, in this Court to remit to a particular registry. Maybe that is because so often these matters are by consent, at least in the field of tort they tend to be.

MR BLOOM: Well, your Honour, I can only say about that that this is a case where that, again, is contentious. We learned only the day before yesterday that that was an issue between the parties. We have not yet put any evidence on ourselves as to the appropriateness of the registry. We can say no more than this, that we would have commenced in Sydney in the Federal Court if it had not been for the David Jones decision. We did not do so. We commenced in the High Court in Sydney instead. That there are matters about which we would like to go into evidence would suggest that Sydney is the appropriate place, at least initially, and until such time as it is known where the witnesses, if any, will be coming from, and it is a matter which your Honour need not deal with in that context in the sense that the Federal Court Rules themselves permit the Chief Judge of that Court in Order 51A to make that decision.

HIS HONOUR: Yes.

MR BLOOM: So it is a matter of dispute between us we now know, but we have not yet had the opportunity to put on evidence as to that aspect. Again, it is a matter of procedure and, again, we would respectfully submit that the matter should go simply to the Federal Court of Australia in this instance and allow the Chief Judge of that court to hear submissions and make whatever - - -

HIS HONOUR: Well, let us defer that aspect, Mr Bloom, until the outcome of the remitter application.

MR BLOOM: Certainly, if your Honour please. Your Honour, the notice of motion has an affidavit earlier filed in support of Linda Catherine Evans. It is sworn 2 June 1995.

HIS HONOUR: You can take it I have read the papers.

MR BLOOM: If your Honour please, and the basis of what Miss Evans says is, "Look, we suggested to the defendant the matter be stood over pending the decision of the High Court in Richard Walter". As soon as that decision came out, we wrote and said, "We suggest that, by consent, the matter be remitted to the Federal Court", and that is how we find ourselves here today, because that is obviously opposed. If your Honour please, it is our respectful submission that that, for the reasons I already went into earlier, ought to be the order which your Honour makes. If your Honour please.

HIS HONOUR: Just before you sit down, Mr Bloom. I understand the argument. It is on the footing that as the authorities stood at the time these proceedings were commenced, there was a question as to the power and jurisdiction of the Federal Court.

MR BLOOM: That is correct, yes, your Honour.

HIS HONOUR: Otherwise the action would have been brought in the Federal Court initially.

MR BLOOM: And in the New South Wales District Registry, your Honour, most certainly.

HIS HONOUR: Yes, thank you. Mr Shaw.

MR BLOOM: If your Honour please.

MR SHAW: If I could hand up to your Honour an outline of the argument which we have prepared. Only the last bit relates to the remitter, your Honour, and that relates to where the remitter ought to be if there is a remission. The reason I have handed it up to your Honour is that it demonstrates that we are putting the application that your Honour is not yet dealing with on the basis of what was decided in Richard Walter. What one has, your Honour, is an action which was begun here; its progression was halted because the case of Richard Walter was in the course of being heard and decided, and it was decided by both parties it was better to wait until the case was decided. The case was decided. We say it has the effect that - and it shows that this action is not maintainable and therefore the question is what does Richard Walter decided? Or one of the questions is, what does Richard Walter decide?

Now Richard Walter itself was a case which it was thought suitable to remove into this Court from the Federal Court, partly no doubt because of the constitutional aspects and partly because of the significance of section 177 in the general structure of the taxation legislation of the country.

HIS HONOUR: And against the background of the decision of the Federal Court in David Jones.

MR SHAW: Indeed. So that one has a case which raises the same kind of questions as arose in Richard Walter actually in the court, and the effective remission can only be to delay the hearing, it is submitted, if we are right. We would say that it is only a matter of legal argument and it has already been indicated by the Federal Court in Darrell Lea, that my learned friend referred to, that the view that at least one member of the court takes is that what the High Court decided in Richard Walter is arguable, so that, in our submission, what one has is a case which is really asking the question, what has the Court decided? And, in our submission, unless it is clear that that question cannot be debated because there are factual matters about which evidence ought to be given, it is a matter that this Court should deal with.

As we would put the matter, we have the stake of the claim; we have the notices of assessment produced; the question simply is whether in those circumstances the action is maintainable or not. If it is, well, then, maybe there are some matters, whatever it was my learned friend wants to say that evidence would have to be led about, but if it is concluded by a combination - if I can put it this way - of what was decided in Richard Walter and the assessments produced under section 177 then, in our submission, the Court ought to deal with the matter and ought to deal with it as soon as it can.

If the only reason is for saying, "Well, it should go back to the Federal Court, it's not clear what the Court meant in Richard Walter" then, we would submit, it is appropriate for this Court to say that rather than some other court.

HIS HONOUR: I do not understand that is what is really being put. It is not that it is not clear what the court meant but whether what the court said has implications, and if so what implications, for the factual situation here in which there are three assessments raised against one taxpayer.

MR SHAW: Yes. The difference between the two cases is that in Richard Walter you had two assessments: one raised against one taxpayer; the other raised against another taxpayer. Here one has three assessments raised against the same taxpayer under, I suppose, Part IVA and section 169 of the Income Tax Assessment Act and the question is whether what was decided in that case leads to the conclusion in this case, too, the challenge must fail. That seems to depend, your Honour, really, largely on what is either contained in or deducible from what the Court decided in Richard Walter.

If the position is that, as it were, Richard Walter has got nothing to say about it then, in our submission, it remains a case which is suitable for this Court to deal with in so far as the summons to strike out goes because what is being said is in an action commenced in this Court here are these notices of assessment and on their mere production against the background which is set out in the statement of claim the action is simply not maintainable. That may, I suppose, raise the same sort of constitutional questions which arose in Richard Walter although in this different fact situation or it may be that the matter will be debated with no constitutional overtones or undertones - whichever is the right word - but whichever it is the matters are, it is submitted, suitable to be dealt with here. If the Court pleases.

HIS HONOUR: Mr Bloom.

MR BLOOM: Yes, your Honour, I cannot add much to what I said before but may I just add this, that my learned friend has introduced in his submissions just now an even further point of difference between this case and Richard Walter. He says that the assessments in this case would be assessments, or amended assessments made in exercise of a power under section 169 of the Tax Act, and not the ordinary assessing power, 166. And that itself is a different situation to that which the court assumed in Richard Walter and would again involve different matters for determination by this Court than were determined in that case. Your Honour, I did not take your Honour to Darrell Lea. I assume that your Honour has had an opportunity to read it.

HIS HONOUR: I have read it, yes.

MR BLOOM: Your Honour will have seen from that decision that Justice Hill in the Federal Court identified in relation to four sales tax assessments issued to the same taxpayer in respect of the same transactions over the same period of time two bases upon which his Honour said that Richard Walter was distinguishable, and the second of them was by reference to the differences between the sales tax and the income tax legislation, but the first of them was that his Honour pointed out that the High Court was simply not dealing in Richard Walter with inconsistent assessments, inconsistent on the face of them, issued to the same taxpayer for the same period in respect of the same year. And that is at page 365 in 30 ATR, where his Honour says:

The Court -

talking about this Court in Richard Walter -

did not have to consider the situation where the Commissioner had issued assessments on alternative bases to the same taxpayer in respect of the same income -

and, your Honour, one can only add to that that there are these two real questions, namely, firstly: what is admissible, in fact, and secondly: what conclusion should be drawn from what is admissible? If your Honour pleases.

HIS HONOUR: I am of the opinion that the action should be remitted to the Federal Court of Australia for these reasons. In the ordinary course, it would have been brought appropriately in the Federal Court. Mr Bloom has offered by way of the reason for the matter having been brought here initially the decision of the Federal Court in the David Jones Case and I can understand why, in the light of that, it might have been thought appropriate to proceed initially in this Court.

The argument against remitter essentially, as I understand it, is that the decision in Richard Walter effectively disposes of the plaintiff's argument or, if it does not, in any event the matter can be appropriately dealt with in this Court. But, of course, the factual situation in Richard Walter was quite different to the factual situation in this case in so far as we are concerned here with a single taxpayer.

Two questions are said on behalf of the plaintiff to arise in regard to this matter which make it inappropriate to proceed further in this Court: one being the question of evidence and what is admissible in support of the plaintiff's claim and the second being what conclusions should be drawn from Richard Walter so far as might be thought to apply in the present case. Those reasons seem to me to be sufficiently compelling to justify remitting the matter to the Federal Court and that is what I propose to do.

MR BLOOM: May it please the Court.

HIS HONOUR: Now, the question of registry, Mr Bloom?

MR BLOOM: Yes, your Honour. If your Honour were to select a registry, I respectfully submit that it ought to be the District Registry of New South Wales.

HIS HONOUR: If I were to select one, on the material available to me, Perth would seem to be the appropriate one. I say that only on the basis that I have affidavit material from one side and not from the other.

MR BLOOM: And not from the other. Your Honour, I can only make statements from the bar table and that is undesirable and in those circumstances, it was why I originally suggested that, perhaps, an appropriate course in this case is not to nominate a registry but to allow the parties to debate that issue in the Federal Court.

HIS HONOUR: Is it said that there are witnesses available in New South Wales for whom it would be inconvenient to go to Perth if the matter were heard there or is there some other reason offered in support of the Sydney Registry?

MR BLOOM: Your Honour, there are three reasons additional to the fact that it would have been started there. The first is that senior and junior counsel, at least one junior counsel here today, are resident in and practise in New South Wales.

HIS HONOUR: With respect, I would have thought that was the least compelling reason.

MR BLOOM: Your Honour, that may be correct although when it comes down to matters of the expense of conducting action, it is a relevant factor.

HIS HONOUR: Yes, I have that in mind whenI say that in relation to this particular piece of litigation.

MR BLOOM: Although I was going to add, and this may be more compelling, that senior and junior counsel for the defendant reside in Melbourne so it is equally unattractive perhaps for them to - - -

HIS HONOUR: There are cost considerations involved.

MR BLOOM: Only from the point of view of costs. My client, your Honour, now resides principally in New South Wales. That is another very relevant factor and the third factor that perhaps may have some more importance is that we believe that, with respect to my learned friends, there is no intention to call any evidence at all. We certainly have no witnesses that we presently plan on calling and our learned friends would be most unlikely, we think, although we would be happy if they do so, to volunteer witnesses in Western Australia. But the practice in the Federal Court at the moment is to leave a matter - and I talk from personal experience, your Honour - is to leave a matter where it is started, to wait until all the evidence is on and then to make a decision on the various matters which the Court takes into account and it adopts a very flexible approach under the Federal Court Act of that question and to then select the appropriate city, but these proceedings have no real connection with Western Australia apart from the fact that the taxpayer was resident there and therefore the tax office people are there at the time this commenced.

HIS HONOUR: That may be true, although I would gather from the affidavit sworn by Lorraine Betty Price on 10 August that it might be anticipated that officers of the Australian Tax Office might be called, I suppose to meet any allegation that there might be of the assessment having not been approached in accordance with the Act, those sort of questions that have been canvassed in early authorities.

MR BLOOM: Well, your Honour - - -

HIS HONOUR: If that is not a consideration, hen I accept the sting goes out of the argument that it should be heard and listed in the Perth Registry.

MR BLOOM: All we say about it is this, that that is something we would wish to address when all the evidence is on. Affidavits can be filed at any of the registries. Once we know who the witnesses are, then the question of convenience of counsel being overtaken by convenience of witnesses, of course, is a decision that the judge can make.

HIS HONOUR: If I remit it simply to the Federal Court of Australia, it will just presumably take its course, affidavits will be filed if thought appropriate, the pleadings will close in the ordinary way, then an approach would be made to the Chief Justice or to a judge of the Federal Court as to where the matter should be heard.

MR BLOOM: I think that approach may be made earlier, your Honour.

HIS HONOUR: I was really thinking if it were clear beyond argument that a particular registry was appropriate then I would simply save a further application to the Federal Court. Absent such an application on the basis that the action is simply remitted to the Federal Court, what would happen?

MR BLOOM: Does your Honour have a copy of Order 51A of the Federal Court Rules?

HIS HONOUR: No, I do not.

MR BLOOM: May I hand to your Honour a copy? Your Honour sees that rule 1(1) takes into account the circumstances where a district registry may be named in the order of remittal, but Order 51A rule 1(2) takes into account the circumstances where no registry is nominated and then says that "the Chief Judge may direct", that is of the Federal Court, "that the order shall be filed in a particular District Registry.

HIS HONOUR: What are the consequences of filing the order or the Chief Justice directing that the order be filed in the registry? That presumably operates so as to govern the conduct of the matter thereafter in that registry?

MR BLOOM: It would mean that that place would commence to be the proper place, but the way the Federal Court Act and the rules operate are that the matter can be transferred at any time upon application, and without any onus, I might add, so that if the Commissioner, if he wished to have it transferred, is not under an onus, so to speak. Upon that basis, the matter is transferred to a place which then becomes the proper place. But this, we presume, would go back to the Chief Judge; the parties would have the opportunity to, perhaps, make written submissions to him as to which registry it ought to go to,. He would, presumably again, if necessary, list the matter for argument if it became essential to do so and then the order would be filed in the particular registry. Again, that is a matter which, in our respectful submission, is within the practice procedure of the Federal Court and your Honour should not be troubled by the argument.

HIS HONOUR: Yes, thank you, Mr Bloom. Do you want to say anything about that aspect of the matter, Mr Shaw?

MR SHAW: Yes, if your Honour pleases. It is submitted that, on the material before your Honour it is clear that this is what I might call a Western Australian case and, ordinarily, one would have thought that it was clear that the appropriate registry was the Perth registry.

HIS HONOUR: But in what sense is it a Western Australian case?

MR SHAW: In the sense that the assessing has been done there; the assessments have been issued there; the review proceedings, if they go ahead, are there. That is to say, if my learned friend loses and there is to be objections - there have been objections already but if the appeal goes ahead, that will all be heard there, and all my learned friend can say is: (a) there is not going to be any evidence at all in relation to this action, and (b) his client resides principally in New South Wales now. Apart from that, as we understand it, costs are affected by the fact that our learned friends mainly live in Sydney. But, looking at the matter, prima facie, your Honour, it is submitted that the matter clearly comes from Perth and, in our submission, my learned friend has really advanced no reason at all to suggest why it should not go there, except to say, well, if we had commenced proceedings ourselves in the Federal Court, we would have started in Sydney, but he did not.

So it is submitted that everything points to taking the course of remitting it to that registry if my learned friend actually has got some sensible soundly based arguments that would lead the Federal Court to say, well, despite the fact it is now in Western Australia, it ought to be somewhere else - Sydney, or whatever it might be - well then he can make the application. But, in our submission, as things stand, the convenient course indicated by the material your Honour has, and even taking into account the matters that he has referred to, the appropriate place to remit it to is Perth. And I suppose one should take into account this, that, looking at the two registries, Perth is less busy than Sydney, so that the matter would probably be dealt with quicker there too.

HIS HONOUR: You would have to speak to the judges in those courts, Mr Shaw. There is no doubt a lower volume of work; there are also fewer judges.

MR SHAW: That is true, your Honour, and now your Honour says that to me I suppose it would be very difficult to persuade any judge that he was less busy than any other judge.

HIS HONOUR: If for instance, it was apparent that witnesses were to be called on one side or the other, then I would regard that as a very compelling consideration. For the purposes of determining this particular question, I am told that at least on the plaintiff's side there will be no evidence. Your client's affidavit refers to the fact that the Deputy Commissioner concerned with the assessments is now retired, but there is nothing at the moment to indicate that he will be called upon to give evidence.

MR SHAW: Well, your Honour, certainly on the strike out, we have to, of course not.

HIS HONOUR: No, I was not thinking of a strike. I was really thinking we have gone beyond that stage, unless there is a strike out application in the Federal Court. There is another aspect too, I think, which has not been canvassed, and that is, say there are interlocutory steps to be taken before this matter gets to trial in the Federal Court, with your location in Melbourne and Mr Bloom's in Sydney, Sydney might well be a less expensive place to argue the matter than Perth in terms of travel.

MR SHAW: Well, your Honour, we do not share my learned friend's aversion to Perth.

HIS HONOUR: And obviously you strike a chord with me. I will try to be as objective as I can about the matter. It does seem to me, though, that in all the circumstances, I should not, as it were, pre-empt what the Federal Court might do and what the Chief Judge might regard as the appropriate registry. I think I should leave that to the Chief Judge.

MR SHAW: If your Honour please.

HIS HONOUR: Now, what order do you seek, Mr Bloom?

MR BLOOM: An order in terms of section 44(2A), if your Honour please, and perhaps if your Honour were to go to the chamber summons of 20 - - -

HIS HONOUR: Well, if I made an order in terms of paragraph 1 of the summons stopping short at the word "Australia" in the second line, that would meet the matter that we have been concerned with.

MR BLOOM: Yes, your Honour, and might I point out, your Honour, that (2A) should both be in brackets. At the moment, (2) and (A) are in separate brackets in the chamber summons.

HIS HONOUR: An order in terms of paragraph 2?

MR BLOOM: Yes, your Honour.

HIS HONOUR: An order in terms of paragraph 3?

MR BLOOM: Yes, please. And 4 likewise, if your Honour please.

HIS HONOUR: Yes, thank you.

MR BLOOM: If your Honour please.

HIS HONOUR: Mr Shaw, do you want to say anything about an order in the terms of paragraph 1, 2, 3 and 4?

MR SHAW: No, your Honour, we do not. We would submit that your Honour ought to order, in addition, that the plaintiffs bear today's costs.

HIS HONOUR: On what footing?

MR SHAW: They started it here and now want it moved.

HIS HONOUR: Mr Bloom.

MR BLOOM: Well, your Honour, it should have been done by consent, with respect to our learned friends. We wrote and said, "As soon as Richard Walter had been decided here as a consent motion, will you agree to it going down". It is really only the costs of today having been caused by the contentious aspect of it, and we should have our costs, with respect, or the costs ought to be just as this - - -

HIS HONOUR: Well, the order that you seek does not require a determination as to costs.

MR BLOOM: No. They will be costs in the cause on that basis.

HIS HONOUR: It simply asks that costs be dealt with in the ordinary way, I suppose.

MR BLOOM: Yes, well, that is appropriate, if your Honour please.

HIS HONOUR: Very well. There will be an order in terms of paragraph 1 of the chamber summons amended by deleting the reference to "New South Wales District Registry"; an order in terms of paragraphs 2, 3 and 4 of the summons.

MR B LOOM: If your Honour please.

MR SHAW: If your Honour pleases.

HIS HONOUR: The Court will now adjourn.

AT 10.11 AM THE MATTER WAS CONCLUDED