ACN 078 272 867 (In Liquidation) (Formerly Advance Finances Pty Limited) & Anor v Commissioner of Taxation & Anor; Binetter v Commissioner of Taxation

[2011] HCATrans 307

[2011] HCATrans 307

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S167 of 2011

B e t w e e n -

ACN 078 272 867 (IN LIQUIDATION) (FORMERLY ADVANCE FINANCES PTY LIMITED)

First Plaintiff

ACN 087 623 541 (IN LIQUIDATION) (FORMERLY CIVIC FINANCES PTY LIMITED)

Second Plaintiff

and

COMMISSIONER OF TAXATION

First Defendant

THE FEDERAL COURT OF AUSTRALIA AND JUDGES THEREOF

Second Defendant

Office of the Registry
  Sydney  No S210 of 2011

B e t w e e n -

GARY BINETTER

Plaintiff

and

COMMISSIONER OF TAXATION

First Defendant

THE FEDERAL COURT OF AUSTRALIA AND JUDGES THEREOF

Second Defendant

Applications for an order to show cause

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 31 OCTOBER 2011, AT 9.29 AM

Copyright in the High Court of Australia

____________________

MS R.L. SEIDEN:   If it please the Court, I appear with my learned friend, MS S. KAUR‑BAINS, for the plaintiff in both matters.  (instructed by Signet Lawyers Pty Limited)

MR M.L. BRABAZON, SC:   May it please the Court, I appear with my learned friend, MR A.J. O’BRIEN, for the first defendant in both matters.  (instructed by Australian Government Solicitor)

MS SEIDEN:   Your Honour, the parties have had discussions and the Commissioner does not oppose expedition and, if convenient to the Court, Wednesday would be a suitable day for the parties to hear both the stay application and the substantive applications to show cause.

HIS HONOUR:   Yes, that is convenient.

MS SEIDEN:   Thank you, your Honour.  The parties estimate a half to one day.  The Commissioner had foreshadowed the need for issuing 78B notices under the Judiciary Act. The plaintiffs no longer press the argument that involved, including section 75(iii) of the Constitution which raised the point whether certiorari was available under that provision rather than as an ancillary relief to 75(v).

HIS HONOUR:   No actual 78B notices have been issued?

MS SEIDEN:   As I understand it, that is correct.

HIS HONOUR:   So there is no need to, as it were, withdraw them?

MR BRABAZON:   That is correct, your Honour.

MS SEIDEN:   Thank you, your Honour.  The parties have also been in discussions about a list of authorities and a folder of authorities for your Honour and the parties will co‑operate to provide your Honour with such a folder, if it is possible to be done, by sometime tomorrow, if that is convenient to the Court.  Thank you, your Honour.

HIS HONOUR:   There is one thing that is concerning me slightly.  Will all affidavits that have been filed be relied or are some of them that have ‑ ‑ ‑

MS SEIDEN:   I will certainly provide a list by the end of the day to your Honour.  As I understand, they will all be relied upon but I will certainly provide a list to your Honour by the end of the day.

HIS HONOUR:   Mr Brabazon, are you relying on all yours?

MR BRABAZON:   Yes, your Honour.  Some of the affidavits are relevant only to the question of the stay, including Mr Cleary’s most recent affidavit, and it may be convenient if, when the parties indicate what they are relying on, a distinction is drawn between the substantive proceeding and the stay.

HIS HONOUR:   Yes, 9.30 on Wednesday then.

MS SEIDEN:   Thank you, your Honour.

MR BRABAZON:   May it please the Court.

HIS HONOUR:   Adjourn the Court.

AT 9.32 AM THE MATTERS WERE ADJOURNED