Permanent Trustee Australia Ltd v Commissioner of State Revenue [2003] HCATrans 386 (3 October 2003)

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Permanent Trustee Australia Ltd v Commissioner of State Revenue [2003] HCATrans 386 (3 October 2003)

Last Updated: 14 October 2003

[2003] HCATrans 386

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 removal pursuant to section 40 of the Judiciary Act 1903

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 3 OCTOBER 2003, AT 11.28 AM

Copyright in the High Court of Australia

MR J.W. de WIJN, QC: If it please the Court, I appear for the applicant with my learned friend, MR M.K. MOSHINSKY. (instructed by Allens Arthur Robinson)

MR P.J. HANKS, QC: If the Court pleases, I appear with my learned friend, MR C.J. HORAN, for the respondent. (instructed by Solicitor for the Commissioner of State Revenue)

GLEESON CJ: I notice that the parties are not in dispute about whether this removal order should be made, but could I ask you are there any facts that would need to be found in order to enable us to deal with the issue?

MR HANKS: We understand there are no such facts, your Honour. There is a discrete issue which does not depend upon any disputed facts. That issue is whether the lease is dutiful in respect of the quantum identified as rent. There is no dispute as to the facts which would impact on that matter or on that issue. There is a separate issue where there are disputed facts, but that is quite distinct, and the constitutional question must be determined, as it has been raised by our friends, in order to answer that first question.

GLEESON CJ: Now, where do we find the precise order that you want?

MR HANKS: I should leave that to my learned friend.

MR de WIJN: Your Honour, it is at page 1 of the application book in the notice of motion.

GUMMOW J: That is “part of the cause”. What is the state of the record of the Supreme Court? Is there a stated case there?

MR de WIJN: No, it is a stamp duty appeal from a decision disallowing an objection. It is not a - - -

GUMMOW J: But does the Revenue state a case in the Victorian system?

MR de WIJN: No, they do not.

GLEESON CJ: Where do we find the statement of the constitutional grounds of objection referred to in the order?

MR de WIJN: We have summarised them in points 1 to 5 of our summary of argument and they are also contained in our notice of objection, starting at page 15 of the application book, your Honour.

GLEESON CJ: I take it Mr Hanks agrees that there is no need to make the order more precise than that.

MR HANKS: I do, your Honour, I do - - -

GUMMOW J: It might be convenient to state a case once it got here, would it?

MR HANKS: We believe it would be - - -

GUMMOW J: Would there be any trouble about agreeing a stated case?

MR HANKS: We think not.

MR de WIJN: We think not, your Honour.

MR HANKS: In fact, to the contrary. There would be no difficulty.

GLEESON CJ: We will make the order as sought and the parties can then make application as advised for a stated case.

MR DE WIJN: We are indebted to the Court.

AT 11.31 AM THE MATTER WAS CONCLUDED