Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue M15/2000 [2000] HCATrans 549 (8 September 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M15 of 2000

B e t w e e n -

THE ROY MORGAN RESEARCH CENTRE PTY LTD

Applicant

and

THE COMMISSIONER OF STATE REVENUE (in his capacity as Commissioner of Payroll Tax)

Respondent

Application for special leave to appeal

McHUGH J

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 8 SEPTEMBER 2000, AT 10.55 AM

Copyright in the High Court of Australia

MR R.R.S. TRACEY, QC: If the Court pleases, I appear for the applicant. (instructed by Tanya Cirkovic & Associates)

MR R.L. BERGLUND, QC: If the Court pleases, I appear with MR P.H. SOLOMON for the respondent. (instructed by Solicitor for the Commissioner of State Revenue Office)

McHUGH J: We think we might call on your opponent, Mr Tracey.

MR TRACEY: If the Court pleases.

McHUGH J: Yes, Mr Berglund. Why should not leave be granted in this case?

MR BERGLUND: Your Honours, the position is, we say, that the High Court in Rose v Hvric has considered the expression "except where otherwise expressly enacted" and sets out proper interpretations of those words.

GUMMOW J: What about the Electric Light Case, 94 CLR?

MR BERGLUND: Your Honour, that relates to a question of the meaning of "determination" and our submission is that the extra point that has to be had regard to is the decision of the Privy Council in Kemper and the House of Lords in Lane v Esdaile which deal directly, we say, with a statute of this particular kind, section 148 of the VCAT Act and - - -

GUMMOW J: Yes, but does the House of Lords postdate Electric Light?

MR BERGLUND: The House of Lords is 1998. Sorry, the Privy Council is - - -

GUMMOW J: Yes. Well, does it refer to Electric Light?

MR BERGLUND: It does not, your Honour, no. We say that the simple interpretation of section 148 is such that it does give a bifurcated means of appeal and the legislation particularly says quite simply that the leave is to be granted or given by the particular court, as the case may be. We say for the reasons that were set out in Lane v Esdaile in the House of Lords and the Privy Council in Kemper, the ordinary and natural interpretation of that statute is the one which the Court of Appeal in Rabel has adopted.

We also say though that what in fact is happening is that the appellant is trying to not challenge necessarily the method of interpretation but the results of the interpretation and we also say that reliance on the Commercial Arbitration Act and perhaps section 17A(4) of the Supreme Court Act are of no assistance because it does in fact, for those relevant Acts, provide for appeals being granted as a result of leave from the court itself and there is no distinction between the issue of whether it be from a particular arm of the court or not.

We also say that at the end of the day what is happening is that the matter will go back, if it is successful, to the Court of Appeal to reconsider the appropriateness or otherwise of granting leave but the real substance in issue is the question of whether or not the applicant is an employer and those are matters which have been the subject of appeal in very similar instances and at the end of the day the applicant was unsuccessful. So that if there was some concern about the application of section 148, we would say that this is not the appropriate vehicle. If the Court pleases.

McHUGH J: What do you say about the utility of this matter, Mr Tracey?

MR TRACEY: Your Honour, the utility is very important. As the Court is aware, unless disturbed, the position in this State will remain that a person can suffer a very serious judgment from an administrative tribunal, seek the intervention of the Court by way of leave, have that application refused without reasons and then be denied a right of appeal to the Court of Appeal. We would submit that not just for our client but for appellants generally - - -

McHUGH J: Yes, we need not hear you any further. There will be a grant of special leave in this case.

MR TRACEY: If the Court pleases.

AT 11.00 AM THE MATTER WAS CONCLUDED