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High Court of Australia Transcripts |
Last Updated: 19 August 2003
IN THE HIGH COURT OF AUSTRALIA
Office of the
Registry
Melbourne No M238 of 2003
B e t w e e n -
PERMANENT TRUSTEE AUSTRALIA LIMITED
Applicant
and
COMMISSIONER OF STATE REVENUE
Respondent
Application for expedition
GUMMOW J
(In Chambers)
TRANSCRIPT OF
PROCEEDINGS
AT CANBERRA ON MONDAY, 11 AUGUST 2003, AT 2.16 PM
Copyright in the High Court of Australia
MR M.K. MOSHINSKY: If your Honour pleases, I appear for the applicant. (instructed by Allens Arthur Robinson)
MR P.J. HANKS, QC: Your Honour, I appear with MR C.J. HORAN for the respondent. (instructed by Solicitor for the Commissioner of State Revenue, Victoria)
HIS HONOUR: Yes, Mr Moshinsky.
MR MOSHINSKY: If your Honour pleases, there has been a recent development since the papers were originally filed in this application.
HIS HONOUR: Mr Hutley seems to have taken your arguments.
MR MOSHINSKY: Yes, exactly, your Honour. Does your Honour wish me to take you to the letter where Paliflex’s solicitors outline their position?
HIS HONOUR: No.
MR MOSHINSKY: In light of that, my learned friend has indicated to me that they consent to the application for expedition, and – perhaps he can correct me if I am wrong – as I understand the Commissioner’s position, it should be determined first, and hopefully very soon, whether or not those issues are going to be raised in Paliflex, and then the application for removal dealt with shortly thereafter.
HIS HONOUR: Yes. Can you explain this to me? The stamp duty in question, is it sought to be imposed on this agreement called the “Development Agreement”, is it not?
MR MOSHINSKY: Yes, that is right.
HIS HONOUR: Was your client a party to that? The parties are supposed to be Australian Pacific Airports and Folkestone Limited. I am looking at the 78B notice, amongst other things. Then the next thing we know, Mr Hanks’ client has issued a notice of assessment to you.
MR MOSHINSKY: My client is a party to that agreement. Can I take your Honour to exhibit “SAL10” to the affidavit of Mr Lawrance, headed “Application for Removal”.
HIS HONOUR: Yes, I have it.
MR MOSHINSKY: That exhibit is the affidavit without the exhibits of Mr Morris.
HIS HONOUR: Yes.
MR MOSHINSKY: At paragraph 6, he deposes:
Permanent and Folkestone were successful in their tender and, on or about 1 July 1998, entered into an agreement (the Development Agreement) between APAM, Folkestone and Permanent - - -
HIS HONOUR: Regarding:
the development of a four star hotel at the Airport –
MR MOSHINSKY: Yes.
HIS HONOUR: What is the role of Permanent in the commercial arrangement?
MR MOSHINSKY: It is the lessee of the premises, and then it sublets them to the hotel operator.
HIS HONOUR: Thank you.
MR MOSHINSKY: Does your Honour wish to hear further from me on the reasons for expedition?
HIS HONOUR: Yes, go ahead.
MR MOSHINSKY: Your Honour, the constitutional issues that we would seek to have removed raise two points of principle. The first is whether the exclusive power to make laws with respect to Commonwealth places is subject to section 55 of the Constitution.
HIS HONOUR: Yes, I see that.
MR MOSHINSKY: The second is whether the power is subject to the limitations contained in section 51(ii) and section 99 of the Constitution. These issues arise in the context of a challenge to the validity of the Mirror Taxes legislation.
HIS HONOUR: Yes, quite.
MR MOSHINSKY: The reason why we seek expedition - - -
HIS HONOUR: Now, just a minute. So you say section 52, like 51, actually, is expressed to be subject to the Constitution?
MR MOSHINSKY: Yes, your Honour.
HIS HONOUR: Section 55 is not expressed subject to anything, and, what, you say that the Mirror Taxes Act did not deal only with the imposition of taxation?
MR MOSHINSKY: Yes, and also the second paragraph. It deals with more than one subject. The Mirror Taxes Act picks up - - -
HIS HONOUR: Yes, I have looked at it. The critical provision seems to be section 6, is that right?
MR MOSHINSKY: That is correct. Section 6(2) is the principal operative provision.
HIS HONOUR: Yes. What about subsection (3)?
MR MOSHINSKY: Well, that may have the effect of denying operation to the Act, rather than it being a question of validity - - -
HIS HONOUR: Yes. Well, that is what I am talking about.
MR MOSHINSKY: But the effect would be the same.
HIS HONOUR: Well, it would not, really.
MR MOSHINSKY: Your Honour, if these issues are permitted to be raised in the Paliflex proceeding, then there would be, we say - - -
HIS HONOUR: It seems as if they are already going to be raised. The question is whether we should hear twice from a person who wants to agitate in favour of it.
MR MOSHINSKY: What we say to that is that our participation would not add appreciably to the hearing time.
HIS HONOUR: That is not the question. The question is whether your participation will add anything of cogency to our reasoning that will not already be given to us by Mr Hutley. That is the question.
MR MOSHINSKY: Yes.
HIS HONOUR: I mean, there are probably an infinity of parties in your interest out there, with other transactions.
MR MOSHINSKY: Well, perhaps. We have proceedings on foot which raise exactly the same issues. We are the party that has raised the issues in the first place - - -
HIS HONOUR: No problem with - - -
MR MOSHINSKY: - - - and clearly we have a direct interest in their outcome.
HIS HONOUR: Yes.
MR MOSHINSKY: We also think that we, particularly through our written submissions, may be able to offer assistance to the Court in addition to the submissions put forward by Paliflex.
HIS HONOUR: Yes.
MR MOSHINSKY: We are happy to confine any oral submissions we make so that there is no repetition at all of matters put by Paliflex, and we only supplement to the extent necessary about what they put.
HIS HONOUR: Yes, I understand that. This case in fact is not a mirror image of Paliflex, because it is possible to decide Paliflex by saying that Justice Mason was correct. If that is so, that is the end of that litigation. At least, it is the end of the litigation as regards the Land Tax Act. Whether it is the end of it regarding the local government rates, I am not sure. Anyhow, if Justice Mason is followed, that seems to me a pretty decisive step. If it is not followed, there is the next step of the retrospectivity of mirror legislation, which is not in your case. So they are two possibilities against which you would never be reached.
MR MOSHINSKY: Yes, that is true, but the - - -
HIS HONOUR: That is right, is it not?
MR MOSHINSKY: If we are right, then the opposite result would follow to that reached by the New South Wales Court of Appeal.
HIS HONOUR: What I am putting to you is, if you are right, we can solve, possibly, Paliflex without ever getting into the invalidity of the Mirror Taxes legislation.
MR MOSHINSKY: I am sorry, if we are right, you may be able to solve it without getting into the retrospectivity issue?
HIS HONOUR: No, if Justice Mason is correct, or the retrospectivity issue does not – works as well, or, alternatively, we never need get to your argument.
MR MOSHINSKY: Yes, but it certainly remains a possibility that if the reasoning of the Court of Appeal is followed, in respect of the construction issue and the retrospectivity issue, one does get to the section 55, et cetera, issues. Could I just make two supplementary points.
HIS HONOUR: When you say two days, do not forget, presumably, there would be a fairly hefty intervention from the Commonwealth on your arguments?
MR MOSHINSKY: Yes.
HIS HONOUR: The whole relationship between 55 and 52 and 99 would be pretty significant for them, I would have thought. When you say two days, they are two packed days.
MR MOSHINSKY: Yes, they are, but if those issues are going to be raised anyway, we do not see how our participation would add very - - -
HIS HONOUR: What I am putting to you is that the Commonwealth will be here as of right, and you will not be.
MR MOSHINSKY: Yes, and the State Government will have the right to intervene, but we will not.
HIS HONOUR: Well, they have the Commissioner here.
MR MOSHINSKY: But if this proceeding is not heard at the same time - - -
HIS HONOUR: Yes, I see what you mean.
MR MOSHINSKY: - - - the State Government can be there, anyway. The two supplementary points I wish to make are that insofar as our constitutional grounds go beyond the section 55, 51(ii) and 99 points which are sought to be raised in Paliflex, we would not seek to make any oral submissions and would confine our submissions to written. I refer to the impermissible delegation point. Secondly, the Commissioner, in his outline at paragraph 12, refers to the disruption of the Supreme Court hearing which has been set down in October, but - - -
HIS HONOUR: 23 October, is it not?
MR MOSHINSKY: That is so, your Honour, but it is hard to see how that hearing date can be held onto, in any event, if - - -
HIS HONOUR: Why is that?
MR MOSHINSKY: - - - exactly the same constitutional issues are going to be before the High Court in September, and the subject of a reserved decision, one assumes, at that time. So, in any event, it is hard to see how the Supreme Court proceeding can go ahead at that time.
HIS HONOUR: Yes, but from our point of view – the Court’s point of view – our situation is advanced if we have had a decision at first instance digesting all this documentation and so on, informed by what we have had to decide in Paliflex.
MR MOSHINSKY: The points that we seek to have removal of are questions of law, which will not depend on those factual details. So it is not the normal situation where one would - - -
HIS HONOUR: We have heard this
before.
MR MOSHINSKY: - - - have the advantage
of the lower court decision.
HIS HONOUR: Yes, I know.
MR MOSHINSKY: I mean, it is no different from the removal application that has been granted in the Paliflex proceeding.
HIS HONOUR: There is some indication in here that it is not entirely sorted out yet whether there be some objection in the Supreme Court between you as to affidavit material.
MR MOSHINSKY: My instructions are that the Commissioner has communicated that he does not dispute the material that we have filed.
HIS HONOUR: Right, yes. Yes, Dr Hanks.
MR HANKS: Our position, your Honour, is that whether this matter is to be removed or not, from our point of view, ought to be determined as quickly as possible. For that reason, we do not oppose the application for expedition.
HIS HONOUR: Yes.
MR HANKS: The developments on Friday clearly have cast a new light - - -
HIS HONOUR: They have, yes.
MR HANKS: - - - on the application.
HIS HONOUR: What I am presently minded to do is to
not dislocate the fixture in Paliflex, which is the very next sittings of
the Court, is it not?
MR HANKS: I believe so, yes,
your Honour.
HIS HONOUR: It is in the second week of the very next sittings.
MR HANKS: Yes, it is the second week in the September sittings.
HIS HONOUR: Yes, and there is a timetable in operation there.
MR HANKS: We understand, your Honour, that directions were made in that matter and the appellant was to file submissions last Wednesday.
HIS HONOUR: In Paliflex, you mean?
MR HANKS: Yes, and the interveners that we know are to file their submissions Wednesday week.
HIS HONOUR: Yes. It just occurs to me that that may be dislocated by these new arguments.
MR HANKS: Very likely, your Honour.
HIS HONOUR: In any event, I will expedite the removal application to go in the list, which will also deal with special leaves, in Melbourne on 3 October.
MR HANKS: Yes, your Honour.
HIS HONOUR: You will then have some preliminary idea of how things stand after the argument in Paliflex, which no doubt you will follow closely, and we can see what should be done then.
MR HANKS: If your Honour pleases.
HIS HONOUR: But I will not expedite it instanter and remove it this afternoon. To be precise, what is the date of your summons for expedition? Is it 5 August?
MR HANKS: Yes, it is, your Honour.
HIS HONOUR: On the summons for expedition of
5 August, I order that the removal application be expedited and included in
the list of business
for Melbourne for 9.30 on 3 October. I certify for
counsel, and costs of today will be costs of the removal application. I am sure
you will be liaising with Mr Hutley, Mr Moshinsky.
MR
MOSHINSKY: Yes, your Honour.
HIS HONOUR: Is there anything else?
MR MOSHINSKY: No, your Honour.
MR
HANKS: No, your Honour.
HIS HONOUR: We will now
adjourn.
AT 2.32 PM THE MATTER WAS ADJOURNED
UNTIL
FRIDAY, 3 OCTOBER 2003
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