Australian Communication Exchange Ltd v Deputy Commissioner of Taxation

[2003] HCATrans 730

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B71 of 2002

B e t w e e n -

AUSTRALIAN COMMUNICATION EXCHANGE LIMITED

Appellant

and

DEPUTY COMMISSIONER OF TAXATION

Respondent

For mention

CALLINAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON TUESDAY, 10 JUNE 2003, AT 3.30 PM

Copyright in the High Court of Australia

MR L.F. KELLY:   If the Court pleases, I appear for the appellant. (instructed by Corrs Chambers Westgarth Lawyers)

MS M.M. BRENNAN:   If the Court pleases, I appear for the respondent.  (instructed by Australian Government Solicitor)

HIS HONOUR:   The reason why this matter has been listed for mention is to inform you that it would be of assistance to the Court and the Court thinks it appropriate that all seven Judges participate in this appeal.  What I would have in mind is that the matter be dealt with on the papers, that is on the transcript, and on, of course, the written submissions by the other two Judges who, if after consideration of the transcript and the other materials thought the matter should be relisted, then it could be relisted for further oral hearing.  I doubt that that would be necessary, but I really wanted to find out what the parties’ views were on that.  Are you able to take instructions now?

MR KELLY:   Yes, your Honour, I can.  I have not but I can.

HIS HONOUR:   Well, if you wish to leave the Bar table.  What about you, Ms Brennan, are you in a position to take instructions?

MS BRENNAN:   Thank you, your Honour, yes.  If we could have a few minutes.

HIS HONOUR:   Yes, by all means.  I will just retire for a couple of minutes and if you tell my associate when you are ready.

MS BRENNAN:    Thank you very much, your Honour.

MR KELLY:   Thank you, your Honour.

AT 3.32 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.57 PM:

HIS HONOUR:   Yes.

MR KELLY:   May it please the Court.  Your Honour, could I respectfully inquire whether the Court has taken into consideration the fact that Justice Heydon had not been sworn in as a Justice of the High Court when the first part of the appeal was heard on 6 February this year?

HIS HONOUR:   I think the short answer is no, Mr Kelly.  Subject to that matter, would there be any problem for the parties?

MR KELLY:   No.  Subject to that consideration, your Honour, the appellant has no objection to the proposed course.

HIS HONOUR:   I suppose if that is a possible argument – and I can see that it could be – you would have to give section 78B notices, would you not?  It is just listed before me, as you would appreciate, as a directions hearing.  I cannot speak for the other four Judges who sat on the case.

MR KELLY:   Yes, your Honour.

HIS HONOUR:   I am just wondering what is the most convenient way to deal with it, whether the parties would be prepared to make submissions on the constitutional point to which you have drawn attention in writing, which would be considered, I would say, by the five Judges who did constitute the Court.  I think perhaps the best thing to do is for you to compose a section 78B notice – who is the moving party, by the way?

MR KELLY:   I was for the appellant and there is a cross‑appeal.

HIS HONOUR:   That is right.  You are for the respondent, Ms Brennan.

MS BRENNAN:    Yes, your Honour.

HIS HONOUR:   I think, Mr Kelly, your side perhaps should give section 78B notices to the Attorneys and I think perhaps the matter should be adjourned until we see what the response to those notices is.  It is probably sufficient for today’s purposes if I say that in view of the parties’ willingness to have the matter dealt with by seven Judges, so long as it is constitutional for that to happen, the matter should be adjourned to a date to be fixed and I will not make any order that the matter be dealt with by seven Judges rather than five.  We will just see what happens in relation to the 78B notices.  If the Attorneys wish to intervene, any of them, it may be necessary to list it for an oral hearing just in relation to that point alone, I would have thought.  That is why I do not even ask you at this stage to give me any written submissions on that.

MR KELLY:   Your Honour, the only matter which I would draw to your attention potentially is that we may go away and do some research about it and come to the view on both sides of the record that there is no constitutional impediment to the proposed course and that it is not really an issue as such.

HIS HONOUR:   Why do you not do that?  I will list the matter for further mention when the parties give me notice that they would like the matter to be further mentioned.

MR KELLY:   Or, your Honour, for the convenience of the Court, if we agree between us that there is no issue on that point, could we advise the Court in writing that there is no impediment and that the Court can then proceed to hear the matter.

HIS HONOUR:   Yes.  It is conceivable, now you have raised the point, the Court might take the view that it is a matter that should be argued but, again, I cannot speak for the other four Judges on that.

MR KELLY:   Yes, your Honour.

HIS HONOUR:   But, yes, if in fact you think there is no constitutional impediment, your views on that would be useful and then we can decide whether we think that there is a possibility of a constitutional point and how we would proceed from there if there is.  If in fact you form the view that there is not and the balance of the Court agrees with that view that there is not even an argument in relation to it, then seven Judges would go ahead and determine the matter.  You have no objection to that?

MR KELLY:   No, your Honour.

MS BRENNAN:    No.

HIS HONOUR:   All right.  Thank you for that and thank you for drawing my attention to the possible constitutional point.  When was the matter argued?

MR KELLY:   I believe it was 6 February this year.

HIS HONOUR:   When was Justice Heydon was sworn in?  I thought he was sworn in on the 7^th.

MR KELLY:   The next day.

HIS HONOUR:   The next day.  The case only lasted a day, did it not?

MR KELLY:   An afternoon, I think, your Honour.

HIS HONOUR:   I must say when I reflect on it, I do not think there is a constitutional problem really to treat the matter as having been adjourned perhaps for further argument.  It sometimes happens, as you know, that a case is listed before five Judges and the view is formed that all of the Court should participate.  With Judges changing from time to time, the notices of appeal will be filed before a particular judge who sits to hear the matter is appointed.  The thing is you were right to draw attention to it.  You will give it some thought too.

MR KELLY:   Thank you, your Honour.

HIS HONOUR:   All right.  It is a mention – I suppose it is necessary for me to certify for counsel and it is desirable and I will do that.  I will simply adjourn this mention hearing to a date to be fixed and you will give me notice when you want the matter relisted.  All of the Court will be here the week after next for the Brisbane sittings.  Thank you for that.

AT 4.04 PM THE MATTER WAS ADJOURNED