Hornsby Shire Council v Commonwealth of Australia & Anor [2022] HCATrans 143 (5 September 2022)

Last Updated: 5 September 2022

[2022] HCATrans 143

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S202 of 2021

B e t w e e n -

HORNSBY SHIRE COUNCIL

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

First Defendant

THE STATE OF NEW SOUTH WALES

Second Defendant

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON MONDAY, 5 SEPTEMBER 2022, AT 10.00 AM

Copyright in the High Court of Australia

HIS HONOUR: In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MS R.L. SEIDEN, SC appears with MR M.A. ROBINSON, SC for the plaintiff. (instructed by Diamond Conway Lawyers)

MR S.P. DONAGHUE, QC, Solicitor‑General of the Commonwealth of Australia, appears with MS A. LORD for the first defendant. (instructed by Australian Government Solicitor)

MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales, appears with MR M.O. PULSFORD for the second defendant. (instructed by NSW Crown Solicitor’s Office)

HIS HONOUR: Yes, Ms Seiden.

MS SEIDEN: Thank you, your Honour. Your Honour, the parties have filed a very targeted special case. It focuses on the supply of a single vehicle in May 2022. It is a Holden Trailblazer. Prior to the reporting and payment of the notional GST with respect to the Trailblazer, a letter of protest was provided to the Commissioner. We anticipate that this approach will provide a secure foundation to enable the Court to consider the constitutional question of whether or not the notional GST is a compulsory impost on property of the State and unconstitutional.

The targeted nature of the special case, we anticipate, disposes of some of the other issues that plagued the previous special case, your Honour. In the event that your Honour is minded to refer the questions to the Full Court, the parties have agreed some short minutes, which I understand your Honour has received. Your Honour, really, that is the essence of where we are at, and we appreciate your Honour’s patience with this.

HIS HONOUR: Yes. Well, thank you, Ms Seiden. I can see that you have made huge progress, and I am by no means critical of the result. I have a question about question 3.

MS SEIDEN: Yes.

HIS HONOUR: Is there any substantive issue that lurks behind question 3, or does the answer to question 3 simply flow from the answers to questions 1 or 2? That is, is there any issue between the parties as to the appropriateness of restitutionary relief if the provisions are contrary to either section 55 or 114 of the Constitution?

MS SEIDEN: Your Honour, perhaps if I could ask the defendants to speak to that? The plaintiff anticipates there is not an issue but for the reason that the particular payment was made under protest, but if your Honour – if I could ask the defendants ‑ ‑ ‑

HIS HONOUR: Of course.

MS SEIDEN: ‑ ‑ ‑ rather than to speak for them.

HIS HONOUR: Yes. Thank you. Mr Donaghue.

MR DONAGHUE: Thank you, your Honour. Your Honour, we join in the submission that the special case should be referred to the Full Court. As to your Honour’s question about question 3, we think that there is a substantive issue there because, as your Honour will recall, in Woolwich the issue was whether a plaintiff who complained as to the unlawful nature of a tax and who made the payment under protest could recover, and the House of Lords held that it was necessary to develop the law in order to allow that to occur, because the protest itself did not put the matter within one of the established boxes of unjust factors payment under mistake or colour of office or matters of that kind.

As I understand the position, this Court has never decided whether that aspect of Woolwich is part of Australian law or not. So, it is – I cannot tell your Honour now exactly how we will develop that argument, but that is an unresolved issue for Australian law that I would prefer to keep on the table while we are working out the submissions for the hearing. But, as things presently stand, in my submission there would need to be a development of Australian law in order to mean that the agreed facts create a right of recovery.

HIS HONOUR: All right. But a development that is within the four squares of the facts stated in the special case.

MR DONAGHUE: Yes. It may not turn out to be a particularly controversial development, your Honour, but it is nevertheless a development that would need to be taken and I do not want to commit myself that it will not be at all controversial at this point.

HIS HONOUR: It may not even be a development when you look back through the case law on section 90 imposts found to be invalid, but I will leave that to you, Mr Donaghue.

MR DONAGHUE: Yes. Thank you, your Honour.

HIS HONOUR: Mr Sexton.
MR SEXTON: We take the same position, your Honour.

HIS HONOUR: Yes. Thank you. May I ask about section 78B notices? This is really a question, I suppose, for the Solicitors‑General. Have they been sent at this stage in an appropriate form? What is the likelihood of interventions?

MR DONAGHUE: Yes, your Honour, I believe that they have been sent, is my recollection of the position. We can revisit, in light of the agreed special case, whether there needs to be any change. I think they were issued at a point prior to the narrowing of the case that your Honour can now see in the agreed document. So, it might be that 78B is a bit wide, rather than too narrow, but we can look again at whether anything is needed there. There is, I think, some interest from some of the other States – Mr Sexton might be better informed than I – but I do not know that any of them have yet decided whether they were going to come, but they are aware of the case, and they are thinking about ‑ ‑ ‑

HIS HONOUR: Yes. Mr Sexton, do you have greater intelligence on this issue?

MR SEXTON: I do not, your Honour, but I suppose I was working on the assumption that quite a number of my State colleagues would be interested and would attend the hearing, but I cannot guarantee that.

HIS HONOUR: I am just wondering whether it would be safer to call it a two-day case than a one-day-plus case.

MR SEXTON: I think it would be safer, your Honour. Yes.

HIS HONOUR: Thank you. All right. Well, thank you very much. I am prepared to make the orders sought in the document signed by the solicitors for the parties and dated 2 September 2022. So, I make those orders, the effect of which will be that the matter will be, in a form, ready for a two‑day hearing in the February sitting of the Court. Very well. Thank you very much. The Court will now adjourn.

AT 10.08 AM THE MATTER WAS ADJOURNED