Attorney-General for Qld v SGH

[2001] HCATrans 67

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B79 of 2000

B e t w e e n -

THE ATTORNEY‑GENERAL FOR THE STATE OF QUEENSLAND

Applicant

and

SGH LIMITED (formerly known as Suncorp Building Society Limited)

First Respondent

THE COMMISSIONER OF TAXATION

Second Respondent

Application for removal pursuant to section 40 of the Judiciary Act 1903

CALLINAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 21 MARCH, 2001, AT 11.17 AM

Copyright in the High Court of Australia

MR P.A. KEANE, QC, Solicitor-General of the State of Queensland.  If your Honour pleases, I appear for the applicant, with my learned friend, MR G.R. COOPER.  (instructed by the Crown Solicitor for Queensland)

MR J.D. McKENNA:   If your Honour please, I appear for the first respondent.  (instructed by Clayton Utz, Lawyers)

MR J.A. LOGAN, SC:   If the Court pleases, I appear for the Commissioner of Taxation.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   There is a matter I should mention.  I do not know whether this is connected but I gave an opinion on a matter, I think, that went on demurrer to the Court - - -

MR KEANE:   In fact, I think your Honour actually settled the statement of claim as well.

HIS HONOUR:   Yes, Suncorp v Metway, is that correct.

MR KEANE:   Yes, it is.

HIS HONOUR:   This fund looked to me to be a bit similar to the one - - -

MR KEANE:   It is that fund.

HIS HONOUR:   Is there any reason why I should not deal with this?

MR KEANE:   No.

HIS HONOUR:   It looked very familiar actually.

MR KEANE:   Yes.  Yes, it is that matter.

HIS HONOUR:   Is there any problem?  Does anybody have any problem?

MR LOGAN:   Not from our part.

HIS HONOUR:   I am only stating a case, I suppose. Does anybody suggest that the party Mr Keane represents does not have a right, under section 40, to have the case stated?

MR McKENNA:   Not at all, your Honour.

HIS HONOUR:   What about you, Mr Logan?

MR LOGAN:   It is as a removal, your Honour, and there is no objection on the part of the Commissioner to the statement of the case in the terms proposed.

HIS HONOUR:   Right.  The proceedings are pending, are they, in the Federal Court?

MR KEANE:   Yes, they are, your Honour.

HIS HONOUR:   Is there any good reason why they should not perhaps be determined there first?

MR KEANE:   Well, as we say, in so far as the Constitution - - -

HIS HONOUR:   I think you have a right, Mr Keane, but on the other hand, I would just be interested to know whether there is any reason why ‑ ‑ ‑

MR KEANE:   Your Honour, inevitably, the question of the status of the first respondent as the State will need to be decided and the question whether the State too, as we would say, State payment – the imposition of a tax on that is a tax on the property of the State are inevitably questions which will only be decided finally in the High Court.

HIS HONOUR:   Yes.  Well, nobody really seriously disputes that.

MR LOGAN:   Your Honour, the substantive revenue law point is one which is already the subject of determination on not dissimilar facts by ‑ ‑ ‑

HIS HONOUR:   And special leave was refused.

MR LOGAN:   Special leave was refused, so that, really, the point that differentiates the present case from the earlier ones is only truly the constitutional point, hence the Commissioner’s attitude to ‑ ‑ ‑

HIS HONOUR:   It is a pretty big point though, is it not?

MR LOGAN:   That is right, with respect, yes.

HIS HONOUR:   All right.  I have had a look at the proposed settled case.  The only question I really had was about annexure H which is the Report of the Committee of Inquiry and I really had two queries about that:  is it an essential document and are all the facts stated in it agreed?

MR KEANE:   Your Honour, as to the second, the facts that have been extracted from it and agreed in the stated case are, and as to the first question, the facts that are in the stated case are regarded by one or other of the parties as essential.

HIS HONOUR:   Right.  So, the stated case is in an agreed form, is that correct?

MR KEANE:   That is so.  The facts are agreed.

HIS HONOUR:   I suppose the report is there simply in case somebody wishes to explain one of the facts which has been extracted from it and appears in the stated case, is that right?

MR KEANE:   That is our submission.

HIS HONOUR:   Very well.  I am prepared then to state a case.

MR KEANE:   Your Honour, just in that regard, your Honour has been supplied with a draft case stated.  Unfortunately, the numbering of that got out of kilter.

HIS HONOUR:   I have been supplied with this which has bound up in it the stated case, together with all of the annexures.

MR KEANE:   That is the statement of agreed facts.  Your Honour, I think, has been supplied separately with a document head “Case Stated”.

HIS HONOUR:   It is actually bound into the first part of the - - -

MR KEANE:   It is bound in there?  Well, your Honour, that document unfortunately, at page 9 – your Honour will see this if your Honour compares the first paragraph 9 that appears at about page 4 with page 9, I think it is, your Honour will see that paragraph No 9 gets repeated.  So, can we ‑ ‑ ‑

HIS HONOUR:   It only needs renumbering, is that what you are telling me?

MR KEANE:   We can do that, your Honour.  We have a document we can hand your Honour which does that.

HIS HONOUR:   Why do you not file – yes, I will state a case in terms of the renumbered case stated.

MR KEANE:   If your Honour would make that exhibit 1 perhaps.

HIS HONOUR:   Yes.  Well, that will be exhibit 1.

EXHIBIT:              Exhibit 1…..Renumbered case stated.

HIS HONOUR:   And then there is a proposal for, in effect, directions that the matter be treated as if it were an appeal and that the parties file their outlines of submissions and whatever else.  Well, that is all you have to file, is it not?

MR KEANE:   Your Honour, I think the direction that your Honour makes that the case stated proceed as if it were an appeal is the only order that would need to be made because that will then pick up the other directions.

HIS HONOUR:   Yes.  I am prepared to state a case in terms of exhibit 1, together with the annexures which form part of the material that was filed, annexures A to H, and I direct that the matter proceed as if it were an appeal to the Full Court.

MR KEANE:   Your Honour, in terms of formality, it probably is necessary that your Honour formally order that that part of the cause in the proceedings No Q260 of 1999 pending in the Federal Court, which involves the two questions, be removed under section 40.

HIS HONOUR:   Yes.  Well, I will make an order accordingly.

MR KEANE:   Thank you, your Honour.  Would your Honour prefer it if we prepared a draft containing those orders?

HIS HONOUR:   Yes, would the parties prepare a draft form of order to reflect what I have said.

MR KEANE:   If we can initial it and provide it to your Honour’s associate.

HIS HONOUR:   Yes, thank you.  All right, there is nothing further in this matter?

MR KEANE:   I think your Honour should probably order costs in the cause.

HIS HONOUR:   Costs in the cause or reserve them?

MR LOGAN:   Yes, that would be appropriate, your Honour.

MR McKENNA:   Thank you, your Honour, costs in the proceedings.

HIS HONOUR:   Order that the costs of today be costs in the cause?

MR KEANE:   Be costs in the cause.

HIS HONOUR:   All right, I will make that order.

I am sorry, Mr Keane, there is a matter I meant to ask:  do you have any expectation or any feel for whether other States are likely to intervene?  I know it is difficult to say.

MR KEANE:   Your Honour, I am not sure about other States.  I imagine the Commonwealth - - -

HIS HONOUR:   I only ask so I can give the Chief Justice an estimate of time, you see.

MR KEANE:   Your Honour, I understand.  I am instructed that most of the States have indicated they will intervene.

MR LOGAN:   In the proceeding in the Full Court I will be led by the Commonwealth Solicitor‑General, so I do not imagine there will be a separate appearance for the Commonwealth Attorney in the case.

HIS HONOUR:   No, but is the Commissioner likely to appear separately?  He will, I suppose.

MR KEANE:   The first respondent is SGH.

HIS HONOUR:   I am sorry, SGH.

MR KEANE:   It will appear separately.

HIS HONOUR:   It seems possible that some of the States will intervene.

MR KEANE:   Yes, I am instructed that is so.

HIS HONOUR:   How long do you think it might last; a day and a half?

MR KEANE:   I would have thought a day and a half would certainly see it done; it probably would go a little more than a day.

HIS HONOUR:   I will tell the Chief Justice it should finish in a day and a half.

MR KEANE:   Yes.

HIS HONOUR:   All right, thank you.

AT 11.26 AM THE MATTER WAS CONCLUDED