State Authorities Superannuation Board v Commissioner of State Taxation for the State of WA P42/1994 [1995] HCATrans 310 (13 September 1995)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth Nos P42 and P43 of 1994

B e t w e e n -

STATE AUTHORITIES SUPERANNUATION BOARD

Appellant

and

COMMISSIONER OF TAXATION FOR THE STATE OF WESTERN AUSTRALIA

Respondent

For mention

BRENNAN CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 13 SEPTEMBER 1995, AT 9.32 AM

Copyright in the High Court of Australia

MR K. MASON, QC, Solicitor-General for the State of New South Wales: If your Honour pleases, I appear with my learned friend, MR L.S. KATZ, for the appellant. (instructed by the Crown Solicitor for New South Wales)

MR R.M. MITCHELL: Your Honour, I appear for the Western Australian Commissioner of State Taxation. (instructed by the Crown Solicitor for Western Australia)

MR G. GRIFFITH, QC, Solicitor-General for the Commonwealth: If your Honour pleases, I appear with my learned friend, MR S.J. GAGELER, not yet intervening for the Commonwealth, but to be here to be involved in what happens and perhaps make a suggestion as to how our own involvement might be reduced. So, I appear for the Attorney-General for the Commonwealth. (instructed by the Australian Government Solicitor)

MR D. GRAHAM, QC, Solicitor-General for the State of Victoria: I am being more guarded, your Honour, I should say I represent the Attorney-General for the State of Victoria, not yet intervening. (instructed by the Victorian Government Solicitor)

HIS HONOUR: Moving omnipresence. Mr Solicitor for New South Wales .

MR MASON: Your Honour, the appeal books will be completed, I understand, within a matter of days. There has been some minor disagreement about their contents but I am led to believe that will be resolved. Would your Honour wish me to explain what the case is about?

HIS HONOUR: Yes. I know generally what the case is about, but at what stage the preparation of it has reached is significant, I gather, at this stage.

MR MASON: Yes, on my instructions the index will be settled within a matter of days and the appeal books will be prepared and completed very shortly thereafter, so, from our perspective it would be merely a question of the Court indicating what wishes it had as to the early exchange of written submissions.

HIS HONOUR: It is obviously desired that there should be an exchange of submissions because the points are diverse and it would be just as well to have it clearly indicated, so perhaps those who are thinking of intervening might also decide what points they wish to intervene on.

MR MASON: Yes.

HIS HONOUR: The 78B notices have all been given, have they not?

MR MASON: They have, referable to the removal application. I think, for more abundant caution, we will issue a further set referable to the removed appeal.

HIS HONOUR: And could you identify in those 78B notices the specific points that are going to be raised in the argument?

MR MASON: Certainly, your Honour, yes.

HIS HONOUR: That might even, I suppose, attract more interventions.

MR MASON: Yes. The constitutional issues, of course, arise, as it were, a little bit down the track depending upon how various arguments fall out.

HIS HONOUR: Perhaps even around the corner.

MR MASON: There is a Court of Appeal decision in New South Wales which, as it were, stands in the path of the interest which I advance on the constitutional issue, namely the capacity for section 64 validly, as it were, to sustain a Commonwealth power to affect the substantive rights of parties in the federal jurisdiction.

Now, that is the first primary constitutional point and the second one is that there is involved in this case a breach of section 114 of the Constitution if section 64 is the means that is used to, as it were, impose the taxation upon the appellant body.

HIS HONOUR: Well, now, could I just inquire of the potential interveners before you go further. Now, Mr Solicitor for the Commonwealth, what point are you interested in?

MR GRIFFITH: The ones around the corner, if your Honour pleases. The suggestion we were tentatively contemplating making, your Honour, that it does seem that the principle issues of construction are ones where the principal parties are those who are involved. I do not know whether any State would wish to intervene but I cannot see that the Attorney for the Commonwealth would wish to intervene on those matters. It is only if they are disposed of in a certain ways as we understand is adverse to my learned friend, the Solicitor General for New South Wales, that - - -

HIS HONOUR: You would be supporting section 64 and - - -?

MR GRIFFITH: We would be supporting validity, your Honour, but the suggestion we wish to make is that in the case of Capital Duplicators that did provide a comfortable economy of approach although in the end it was not the result that the parties expected because it was thought that the answer by the Court on the initial question which was set down for hearing, this section 90 point, would dispose of the whole case, but it did not, so it went in on the second aspect of it but the suggestion we were going to make is that it would be likely, we would have thought, that we would have a full house, as it were, as in the Court at the moment, if the section 64 point is listed so that on one view, if the Court listed the construction matters only, it would be a simple one-day case with two parties, and then we would hope there would be no intervention, certainly we would see no reason, and we would regroup if that is necessary.

So, our submission is that a two-step approach would be a convenient one, subject, of course, to your Honour's dispositions on it. Of course, the section 64 point was a mechanism for the removal but that would not seem to be a problem. The Court can do what it likes when it removes.

HIS HONOUR: It has been removed now so that is that. Now, Mr Solicitor for Victoria.

MR GRAHAM: Our position is the same, if your Honour pleases; it is the points around the corner that would interest us, not the questions of construction. As to a split hearing, one can see the force of what my learned friend the Solicitor for the Commonwealth says. On the other hand, a disjointed hearing may produce more inconvenience rather than having the whole matter brought on and heard as a single case.

HIS HONOUR: And your interest, of course, would be contrary to the Solicitor for the Commonwealth in relation to sections 64 and 114?

MR GRAHAM: Yes, your Honour.

HIS HONOUR: Yes, thank you. Mr Solicitor for New South Wales, in the light of that it does seem that there are parties dealing with the matters around the corner on opposite sides. If you were preparing a summary of argument, obviously it would be desirable for them to have an opportunity to make their contributions at that stage, that is, immediately after you deliver your submissions. What do you say about the two-stage hearing?

MR MASON: We do not support that, really for two reasons: the first is that the construction point is really a very short point. It is a New South Wales statute that gives, on ordinary cannons of construction, a shield of the Crown to a particular body and the question is whether that protection drops off when that body moves outside of the State and, in our submission, that will be a very short point of construction. Once the power of the body to exercise its authority outside of a State is established, there is no reason, we will contend, why it ceases to be the Crown, and any argument to the contrary would be doing less than giving full faith and credit to the intent of the New South Wales Parliament.

Capital Duplicators, of course, was a case where the split hearing produced what Mr Bennett, in a small note in the Australian Law Journal pointed out, was a skewed result, because the numbers in the Court fell out one way on the first point, another way on the second point and the ultimate result was different. From our point of view, your Honour, whilst it is recognised that the Court will avoid a constitutional issue if it may, this case is a very significant vehicle for challenging the Court of Appeal decision and we would not wish to lose the opportunity to do that. It was removed on the basis that that would be a primary part of the matter in this Court and it would be better, in our submission, if the whole case stayed in one piece.

HIS HONOUR: What do you say, Mr Mitchell?

MR MITCHELL: Your Honour, I have not had an opportunity to take instructions as to what my client would feel about a split hearing. The only thing I might anticipate is that it may think that the cost and inconvenience of two hearings potentially rather than one might make that undesirable and that might well be outweighed by the reduced cost of having a short hearing. I think at present my client would be inclined to leave it with the convenience of the Court.

HIS HONOUR: Thank you. It seems to me that it may be that there is some question arising as to section 118, full faith and credit, in relation to the recognition of the status of the SASB under Western Australian law. I do not know whether the genius of counsel might in some way link the problem of that status and the operation of section 118 with section 64. I think perhaps safety's sake as well as economy might indicate that we should have one hearing rather than two. That being so, what is your timetable for your submissions, Mr Solicitor for New South Wales?

MR MASON: Could we be directed to have ours filed a fortnight before the hearing?

HIS HONOUR: I should think at least a fortnight before the hearing - a little more, I would think - but I will hear what the other counsel have to say.

MR MASON: If I may say, the matter is very well canvassed in Peters' Case but of course we will be wanting to say that that was wrongly decided.

MR MITCHELL: Your Honour, we would like a week or two following my learned friend's submissions to respond to those.

HIS HONOUR: Mr Solicitor for the Commonwealth?

MR GRIFFITH: Your Honour, we would expect the usual two weeks after the submissions of both parties.

MR GRAHAM: I would concur with my learned friend the Solicitor for the Commonwealth.

HIS HONOUR: Yes, very well; let us work backwards on that basis. I think the matter is perhaps likely to be heard on 14 November which would take the interveners' arguments back to, say, 7 November. Let us make it the 8th, which I think would be the Tuesday. So that is 8 November for the interveners, which takes the respondent back a fortnight before that. Does anybody have a diary with them?

MR GRIFFITH: The 25th, your Honour.

HIS HONOUR: On 25 October, and 11 October then, for your submissions, Mr Solicitor for New South Wales.

MR MASON: Can I just ask - I do not have a diary - what is the Monday, please, around about 11 October - the 9th?

HIS HONOUR: The 9th.

MR MASON: That is all right then, I will be back from holidays.

HIS HONOUR: We can all breathe easy. I direct that there be full written submissions filed and exchanged as between the parties and any of the Attorneys-General who may have responded to the 78B notice in a way which indicates their intention to intervene, and that those written submissions be filed and exchanged in the case of the appellant on or before 11 October; in the case of the respondent, on or before 25 October, in the case of the interveners, on or before 8 November.

MR MASON: If the Court pleases.

BRENNAN CJ: Thank you very much, gentlemen.

AT 9.45 AM THE MATTER WAS ADJOURNED