Australian Wool Testing Authority Ltd v The Commissioner of Taxation of the Commonwealth of Australia

[1990] FCA 516

Re: AUSTRALIAN WOOL TESTING AUTHORITY LTD.
And: THE COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA
No. V G201 of 1990
FED No. 516
Administrative Law
96 ALR 756
26 FCR 171

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Northrop J.(1)

CATCHWORDS

Administrative Law - judicial review - whether decision subject to review - whether expression of opinion only.

Income Tax Assessment Act 1936 s.s.6, 8, 17, 23, 24

Administrative Decisions (Judicial Review Act) 1977 s.s. 3, 5 and Schedule 1

HEARING

MELBOURNE

#DATE 18:9:1990

ORDER

The objection to competency be discharged.

The respondent pay the applicant's costs of the objection to competency.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

Australian Wool Testing Authority Ltd, ("the Applicant") seeks the determination of the question of whether income received by it is, pursuant to s.23 of the Income Tax Assessment Act 1936 ("the Assessment Act") exempt from income tax. The matter came before the Court in unusual circumstances. By an application issued on 13 July 1990 the Applicant sought an order of review under s.5 of the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act") of a decision said to have been made by the respondent ("the Commissioner") that the Applicant was not eligible for taxation exemption status pursuant to the provisions of the Assessment Act and in particular under s.23 of the Assessment Act. In addition, by the same application, the Applicant sought orders against the Commissioner under s.39B of the Judiciary Act 1903 but at the hearing before the Court the Applicant abandoned its claim under that Act. Thus the only question raised by the application is the claim based on the Judicial Review Act. In conformity with 0.54 of the Federal Court Rules, the application was filed but was not supported by an affidavit. The application stated that a directions hearing would be conducted on 10 August 1990.

1. On 27 July 1990, the Commissioner filed a notice of motion returnable before the Court on 9 August 1990 seeking an order that the application be dismissed or forever stayed. At the same time the Commissioner, in conformity with 0.54 r.4, filed notice of objection to competency with respect to the application for the order of review. On 31 July 1990 the Commissioner filed an affidavit in support of the notice of motion. Thus, the motion and the objection to competency came on for hearing before the first directions hearing had been held. This caused some problems since the formulation of the claim as set out in application is obscure and the motion became unnecessary upon the Applicant abandoning its claim under s.39B of the Judiciary Act. Further, the factual material before the Court was limited.

2. The grounds of the objection to competency relied upon by the Commissioner and as amended during the course of the hearing are as follows:-
   

"1. The Commissioner has made no decision of the kind or to the effect alleged in the application. "1.A Alternatively, if the Commissioner has made a decision, it is not a decision under an enactment.

2. Alternatively, if the Commissioner has made any of those decisions, by virtue of paragraph 1(e) of Schedule 1 to the Judicial Review Act such decisions are not decisions to which the Judicial Review Act applies, in that they are decisions -

(a) forming part of the process of making assessments of tax; and/or

(b) leading up to the making of assessments of tax, under the Assessment Act".

1. The Applicant claims that income received by it is exempt income tax by reason of paragraph 23(h) of the Assessment Act. That paragraph is set out:-
   

"23. The following income shall be exempt from income tax:

(a) . . .

(h) the income of a society or association not carried on for the purposes of profit or gain to the individual members thereof, established for the purpose of promoting the development of aviation or of the agricultural, pastoral, horticultural, viticultural, 7Xdispute.ing or industrial resources of Australia;"

1. It must be noted that the Court is not required on the hearing of the objection to competency to determine whether the income of the Applicant comes within paragraph 23(h) of the Assessment Act. There is no evidence before the Court directed to that issue. In particular the Court is not required to determine whether the Applicant, which is a corporation, is a society or association within the meaning of paragraph 23(h), whether the Applicant is not carried on for the purpose of profit or gain to the individual members thereof or whether it was established for any of the purposes enunciated in the paragraph. Nevertheless, in order to understand the issue, some reference must be made to the historical background. Most of this analysis is taken from the application itself, is not supported by evidence, but appears not to be in dispute.

2. The Applicant is a company limited by guarantee and not having a share capital. It commenced its activities on 1 July 1982. Before that date it had been a statutory body. It carries on the business of testing wool and other fibres, wool products and similar products and reporting the results of those tests. From the time it commenced its activities the income of the Applicant was exempt income by reason of paragraph 23(jd) of the Assessment Act which was inserted into that Act by s.4 of Act No. 39 of 1982 which paragraph applied to income derived on or after 1 July 1982. Paragraph 23(jd) provided as follows:-
   

"23. The following income shall be exempt from income tax: "(a) . . .

(jd) income derived by the Australian Wool Testing Authority Limited, a company incorporated in Victoria, being

(i) income derived by the company from

(A) the carrying out by the company of tests of sheep's wool, lambs' wool, other fibres (whether natural or otherwise), products made wholly or partly from sheep's wool or lambs' wool or similar products made wholly or partly from other fibres (whether natural or otherwise); or

(B) the issue of certificates, or the making of reports, by the company in respect of tests of the kind referred to in sub-sub-paragraph (A); or

(ii) income derived by the company from the investment of

(A) income to which sub-paragraph (i) or this sub-paragraph applies; or

(B) moneys that are to be used by the company in, or in connection with, the carrying out by the company of the activities referred to in sub-paragraph (1);".

1. During the course of the hearing, leave was given to the Applicant to file an affidavit which establishes the fact that at no time after 1 July 1982 has the Applicant received a request from the Commissioner to lodge a return of income and that it has never lodged a return of income.

2. Act No. 57 of 1990, by s.6, amended the Assessment Act by omitting paragraph 23(jd). Thus, it appears to be accepted that the income of the Applicant for any period after 1 July 1990, is not exempt income under paragraph 23(jd) of the Assessment Act. The announcement of this amendment was made following the 1989 Budget. Thereafter conversations took place between counsel for the Applicant and an officer employed in the office of the Commissioner in his company exemption section. As a result, the solicitors for the Applicant wrote to the Commissioner on 20 November 1989 referring to the conversations, the proposed amendment to s.23 of the Assessment Act and stating that the Applicant "is confident that it meets the requirements necessary to gain a tax exempt status pursuant to Section 23(h) of the Act". The letter then set out a number of facts tending to show that the Applicant came within paragraph 23(h). The letter then concluded:-
   

"I hope that the above information is sufficient for you to grant tax exemption status to the Authority commencing 1st July, 1990, and if any further information is required, it can be obtained by contacting Mr. E. Power of Counsel on 608-7727. I hope that this application for tax exempt status meets with your approval and I would appreciate a reply within fourteen (14) days."

1. By letter dated 4 January 1990 and signed by J.J. Crotty, Deputy Commissioner of Taxation, the Commissioner wrote to the Applicant's solicitor as follows:-
   

"INCOME TAX - AUSTRALIAN WOOL TESTING AUTHORITY LTD. With reference to your letter dated 20 November 1989 you are advised that the income of the abovenamed company is considered to be exempt under section 23(h) of the Income Tax Assessment Act 1936. Accordingly, it will not be necessary to lodge returns of income on behalf of the company unless specifically requested to do so at any time. However, you are requested to advise this office about any future change in the character, purpose, method of operation, constituent documents, name or address of the organisation. This is a requirement for retaining the exempt status."

1. The Commissioner, by letter dated 14 June 1990 and signed by D.A. Nolan, Assistant Commissioner, wrote to the Applicant as follows:-
   

"RE: AUSTRALIAN WOOL TESTING AUTHORITY LTD. (AWTA) This Office has considered the question raised in your letter of 20 November 1989 to the Deputy Commissioner of Taxation, Melbourne, concerning the taxation status of the abovenamed organisation. It is clear from the decision in Australian Insurance Association v F.C. of T. 79 ATC 4569 that, in determining whether or not a non-profit society or association is established for a purpose referred to in s.23(h) of the Income Tax Assessment Act 1936, the relevant purpose must be the principal or dominant purpose for which the society or association was established. Available information suggests that the dominant activities of AWTA are the provision of commercial testing, screening and measurement services to primary producers in relation to wool and other fibres. On that basis, it is considered that AWTA is not established for the purpose of promoting the development of the agricultural, pastoral, horticultural, viticultural, manufacturing or industrial resources of Australia, and that its income is not exempt under s.23(h). Accordingly, the contrary advice provided by the Deputy Commissioner, Melbourne, on 4 January 1990 is withdrawn."

1. The copy of the letter of 14 June 1990 in evidence before the Court is the copy sent by the Assistant Commissioner to the Deputy Commissioner at Melbourne. The copy has the following endorsement on it signed by Mr Nolan:-
   

"Deputy Commissioner of Taxation MELBOURNE VIC 3000

Copy for your information. Your reference is VJ 67/19. It is understood you have an application for exemption under s.23(h) from a body established and administered along similar lines to AWTA. Before concluding that matter, would you please get in touch with Mr J Lamerton of this Office (telephone [phone]) who would be able to provide assistance concerning the general approach to s.23(h) applications."

1. This history shows clearly that the issue between the parties is whether the income of the Applicant is exempt income under paragraph 23(h) of the Assessment Act. As was said earlier in these reasons, the application is an obtuse document which obscures more than it discloses. It requires amendment. It is not surprising that the Commissioner and his counsel had difficulty in understanding what was sought to be raised. During the course of the hearing the issues became clearer. The applicant was seeking an order of review of the decision contained in the letter of 14 June 1990. It was said that this letter was evidence of two decisions, one being the withdrawal or revocation of the decision contained in the letter of 4 January 1990 that the income of the applicant is exempt income under paragraph 23(h) of the Assessment Act and that as a result the Applicant is not required to lodge "returns of income" unless specifically requested to do so. The other decision was said to be that the income of the Applicant is not exempt income under paragraph 23(h) since it was not established for the purpose of promoting the development of the agricultural, pastoral, horticultural, viticultural, manufacturing or industrial resources of Australia. It is not for this Court to decide the substantive issue. The question for decision by the Court is whether the letter of 14 June 1990 discloses a decision under an enactment within the Judicial Review Act and if yes whether that decision can be reviewed by the Court.

2. In substance, counsel for the Commissioner asserted that under the provisions of the Assessment Act and the Income Tax Regulations every person, including every company, is required to lodge with the Commissioner a return of income derived by that person during each relevant year of income. From those returns, and from any other information in his possession, the Commissioner is required to make an assessment of the amount of the taxable income of that person and of the tax payable thereon. In making the assessment of the taxable income, and as part of the assessment, the Commissioner is required to determine whether any income is exempt income. If the Commissioner decides that income is not exempt income, the taxpayer can have that decision challenged in the Administrative Appeals Tribunal or in the Federal Court in conformity with the provisions of the Assessment Act. Further, it was contended that such a decision could not be reviewed under the Judicial Review Act by reason of the exclusion from a decision to which that Act applies of decisions coming within paragraph (e) to Schedule 1 of that Act since it is a decision "making, or forming part of the process of making, or leading up to the making of" an assessment of tax under the Assessment Act. Counsel contended further that if the letter of 14 June 1990 did contain a decision, it was not a decision under the Judicial Review Act.

3. Reference must be made to some of the provisions of the Assessment Act. By reason of s.6, in the Assessment Act "assessable income" means all the amounts which under the provisions of the Act are included in the assessable income, but under sub-section 25(1) the assessable income of a taxpayer does not include exempt income. The Assessment Act includes many provisions setting out what constitutes assessable income but those provisions are not relevant for the purposes of determining the objection to competency. By s.6, exempt income means "income which is exempt from income tax and includes income which is not assessable income". It is to be noted that s.23 of the Assessment Act, as well as a number of other sections, lists many categories of income which constitute exempt income for the purposes of the Act, including income coming within paragraph 23(h). It is to be noted that in the Assessment Act the word "assessment" means the ascertainment of the amount of the taxable income as well as the ascertainment of the tax payable on the taxable income and that "taxable income", for present purposes, means the amount remaining after deducting from the assessable income all allowable deductions.

4. From the material before the Court, it is clear that the Commissioner has established the practice of relieving a person from the requirement to lodge returns of income where the only income of that person is exempt income. This is apparent from the letter from the Commissioner dated 4 January 1990 as well as the letter dated 14 June 1990. The endorsement on the latter letter supports the existence of the practice. It is only logical that such a practice should have been introduced. There must be thousands of persons who receive no income other than exempt income under s.23 of the Assessment Act. It would be illogical to expect each of those persons to lodge a return of income each year and it would be an unnecessary expense for the Commissioner to process each of those returns each year. Each of the letters from the Commissioner are based on the existence of a practice whereby the Commissioner makes a decision that where the only income of an identified person is exempt income that person be relieved from lodging returns of income. This practice, on its face, does not form part of the process of making an assessment of the taxable income of a person based upon a return of income lodged by that person.

5. Counsel for the Commissioner sought to deny this conclusion by relying on sub-sections 161(1) and (1A) of the Assessment Act, the present form of which was inserted into the Assessment Act by s.29 of Act No. 20 of 1990. That sub-section provides:-
   

"161(1) Every person must, if required by the Commissioner by notice published in the Gazette, furnish to the Commissioner:

(a) in whichever of the forms of return provided by the Commissioner for the purpose is applicable; and

(b) in the prescribed manner; and

(c) within the period specified in the notice or such further period as the Commissioner allows; a return signed by the person, containing such information as is required by the form of return in relation to:

(d) the income (other than income upon which withholding tax if payable), and profits or gains of a capital nature, derived by the person during the year of income; and

(e) any deductions or losses, being losses of a capital nature, claimed by the person. "(1A) The Commissioner may, in the notice, exempt from liability to furnish returns such classes of persons not liable to pay income tax as the Commissioner thinks fit, and a person so exempted need not furnish a return unless the person is required by the Commissioner to do so."

1. Counsel relied upon a notice published in Gazette No. GN 25 of 27 June 1990 by which the Commissioner required persons to lodge returns for the period ending 30 June 1990 or equivalent date. The notice is long and convoluted and on a strict reading does not require companies to lodge returns. There is no verb to that part of the notice directed to relevant entities; compare the use of grammar with respect to persons (other than companies) where the notice states the Commissioner "needs (these) . . . to lodge with me . . . a return of income" and the direction that such a person needs to lodge a return if specified requirements apply. There is no similar need applicable to relevant entities. This is not important for present purposes since the notice does not exclude from the requirement to lodge returns persons who are in receipt of exempt income only. Counsel relied upon the provisions of s.161 and the notice to support a contention that any decision on the question of whether income was exempt income formed part of the process of making an assessment under the Assessment Act and thus could not be reviewed under the Judicial Review Act.

2. Reference is made to s.8 of the Assessment Act which provides that the Commissioner has the general administration of the Assessment Act. Counsel for the Applicant contended that this section was the enactment under which the decisions sought to be reviewed were made and thus each decision was "a decision of an administrative character made . . . under an enactment"; see sub-section 3(1) and s.5 of the Judicial Review Act.

3. Finally, reference is made to sections 17 and 24 of the Assessment Act. Section 17 imposes the liability to pay tax. It provides:-
   

"17. Subject to this Act, income tax at the rates declared by the Parliament is levied, and shall be paid, for the financial year that commenced on 1 July 1965 and for each succeeding financial year, upon the taxable income derived during the year of income by any person, whether a resident or a non-resident."

1. Sub-section 24(2) provides:-
   

"24.(1) . . .

(2) The exemption of any income from income tax shall not exempt any person from furnishing any return or information which is required by the Commissioner, or from including in his return such information as is prescribed, or as is required by the Commissioner."

1. On a proper analysis of the facts of this application, many of the submissions made by counsel for the Commissioner have become irrelevant.

2. Counsel for the Commissioner contended that each of the letters from the Commissioner contained an expression of opinion only and that an expression of opinion was not a decision. Further, on that basis, it was contended there was no decision under an enactment within the meaning of the Judicial Review Act. Counsel relied upon opinions expressed by the High Court in Australian Broadcasting Tribunal v Bond 26 July 1990, unreported. In that case, the Chief Justice discussed at some length the meaning to be given to the word "decision" in the Judicial Review Act. It is not necessary to refer in detail to what his Honour said. It is sufficient to say that his Honour took the view that a mere expression of opinion or a statement which could of itself have no effect on a person was not such a decision. The decision, however, need not be a final decision. A decision being an intermediate determination could, in appropriate circumstances, be a decision within the meaning of the Judicial Review Act.

3. In their joint judgment Toohey and Gaudron JJ. in speaking of the Judicial Review Act, said:-
   

"It does not follow that, because s.5 is not confined to acts involving the exercise of or a refusal to exercise a substantive power, the acts which constitute a decision reviewable under s.5 of the ADJUR Act are at large. They are confined by the requirement in s.3(1) that they be made "under an enactment". A decision under an enactment is one required by, or authorized by, an enactment. Cf. Australian National University v. Burns (1982) 64 FLR 166; 43 ALR 25. The decision may be expressly or impliedly required or authorized. See Minister for Immigration and Ethnic Affairs v. Mayer

(1985) 157 CLR 290, at p 302-303; Chan v. Minister for Immigration and Ethnic Affairs (1989) 63 ALJR 561, at p 571; 87 ALR 412, at p 429. If an enactment requires that a particular finding be made as a condition precedent to the exercise of or refusal to exercise a substantive power, a finding to that effect is readily characterized as a decision "under an enactment". However, it is otherwise with respect to findings which are not themselves required by an enactment but merely bear upon some issue for determination or some issue relevant to the exercise of a discretion. Findings of that nature are not themselves "decisions under an enactment"; they are merely findings on the way to a decision under an enactment."

1. In the present case, the letter of 4 January 1990 does disclose a decision made by the Commissioner. That decision which was that the Applicant need not lodge returns of income unless specifically requested to do so, is of a substantive character, and is of an administrative nature made under an enactment namely s.8 of the Assessment Act. For similar reasons, the letter of 14 June 1990 discloses at least one decision, the revocation of the decision referred to in the letter of 4 January 1990 being based upon the view that the income of the Applicant was not exempt income. That decision was of a substantive nature since it derived the Applicant of a benefit which had been conferred upon it by the decision of 4 January 1990. It follows, in my opinion, that the letter of 14 June 1990 does contain evidence of a decision of an administrative nature made under an enactment, namely s.8 of the Assessment Act involving the construction and application of paragraph 23(h) of the Assessment Act to the Applicant and the request of the Applicant that it need not lodge a return of income.

2. In my opinion, the express provisions of s.8 of the Assessment Act, by implication at the very least, should be construed as conferring upon the Commissioner a power to make a decision that the income of particular persons is exempt income under s.23 of the Assessment Act and thus relieving those persons from the obligations of lodging a return of income. Any such decision need not be included in any notice under s.161 of the Assessment Act but can be published to the person concerned. Where such a decision is made and communicated, that decision is a decision under an enactment pursuant to the Judicial Review Act. This conclusion is supported by views expressed in Minister for Immigration and Ethnic Affairs v. Mayer 1985 61 ALR 609.

3. Counsel for the Commissioner contended further that it was the Assessment Act which imposed the obligation to lodge returns and to pay tax. He referred to sections 17, 24(2) and 161(1) and (1A) of the Assessment Act and said that their effect, when considered in the context of the notice published in the Gazette, was that every person was required to lodge a return of income except those persons exempted from liability to furnish returns by the notice pursuant to sub-section 161(1A). That notice did in fact exempt specified persons from the requirement to furnish notices but the notice did not exempt persons who received exempt income only. In any event a person may receive exempt income as well as non-exempt income and that person of necessity must furnish a return to enable an assessment to be made to determine the amount of assessable income of that person. In this context, counsel submitted, the Commissioner had no power under s.8 of the Assessment Act to determine, otherwise than by the notice published in the Gazette, that a person need not furnish a return. Accordingly, the letters of 4 January 1990 and 14 July 1990 contained nothing more than expressions of opinion which were incapable of being decisions. Further, it was contended, any liability to furnish a return would not arise until a notice under s.161 was published in the Gazette towards the end of June 1991.

4. In support of this submission, in addition to Bond's case, counsel relied upon Nomad Industries of Australia Pty. Ltd. v. Commissioner of Taxation (1983) 2 NSWLR 56. In that case Rogers J. had to determine whether the provisions of s.9 of the Judicial Review Act prevented the Supreme Court of New South Wales from determining a claim brought by the plaintiff seeking declarations that certain goods it had imported into Australia came within certain items in the Schedules to Sales Tax Legislation and thus were exempt from sales tax. The Commissioner sought unsuccessfully to have the proceedings struck out on a number of grounds including s.9 of the Judicial Review Act. Rogers J. held that the view expressed by the Commissioner that the items did not come within those Schedules was nothing more than an expression of opinion and did not constitute a decision under the Judicial Review Act.

5. In that case counsel for the Commissioner, who was the defendant, advanced submissions to the contrary to those advanced on behalf of the Commissioner in this case. At p 62, Rogers J. set out the submissions made on behalf of the plaintiff:-
   

"The essential submission was that all that the defendant did and was permitted to do was to express a view as to the applicability of the legislation, and it was thereafter for a State court to determine, in an action for recovery of the sales tax, brought in a court of appropriate jurisdictional limit, whether or not there was a liability. There was thus no room for any "decision" to be made by the Commissioner, and therefore no room for the Commissioner to engage in conduct leading to or for the purpose of making a "decision". In any event even if the Commissioner could make a relevant "decision", for example, to issue an assessment or to institute proceedings for recovery of the tax, in the present case, he had not done so. He simply expressed his view as to the correct interpretation of the Exemption Act. As a matter of law that had no effect whether as a sword or a shield. The Commissioner could not be held to that view, if he wished to change his mind nor yet did his view, if incorrect, make the tax payable."

1. Reference was made to Ross v Costigan (1982) 41 ALR 319 a decision considered in Bond, and then Rogers J. set out at p 63 the submission made on behalf of the Commissioner:-
   

"Counsel for the defendant submitted that what the Commissioner said in his letter amounted to a "decision", otherwise the question submitted to the court would be a purely hypothetical one. That is in my view an incorrect conclusion. Contentions or opposing view points may proffer a dispute for resolution by the courts without need for a "decision" being made by either party. It is sufficient for the contestants to embrace opposite views of the proper construction or application of a statutory provision. Thus, for example, a vendor and purchaser may seek a declaration as to the applicability or otherwise of land tax legislation. Neither of them has any power to make a "decision". In my view there was here no decision within the meaning of s.9 of the Act."

1. The facts of that case are very different from the facts of this case. The legislation was different. Here, there is the express statement that the Applicant need not furnish returns and then an express statement that that statement is withdrawn. In my opinion, in conformity with the views expressed in Bond, each of these letters contain evidence of a decision under an enactment which is capable of being reviewed under the Judicial Review Act. The Nomad Industries Case does not constrain me to hold that the letters do not refer to decisions.

2. The remaining question can be dealt with shortly. Under s.3 of the Judicial Review Act, there are excluded from decisions which are subject to applications for orders of review "decisions included in any of the classes of decisions set out in Schedule 1." For present purposes, the relevant class of decisions is that set out in paragraph (e) to Schedule 1 namely:-
   

"CLASSES OF DECISIONS THAT ARE NOT DECISIONS TO WHICH THIS ACT APPLIES

(a) . . .

(e) decisions making, or forming part of the process of making, or leading up to the making of, assessments or calculations of tax or duty, or decisions disallowing objections to assessments or calculations of tax or duty, or decisions amending, or refusing to amend, assessments or calculations of tax or duty, under any of the following Acts: . . .

Income Tax Assessment Act 1936 . . ."

1. There have been many cases involving the construction and application of this provision but it is not necessary to consider all of them. One thing is clear. Decisions affecting liability to tax are not within paragraph (e); see for example Mercantile Credits Ltd v Federal Commissioner of Taxation (1985) 61 ALR 331 per Morling J. at pp 335-336 and the cases referred to in that passage. In my opinion, having regard to those principles of law and to the provisions of the Assessment Act referred to in these reasons, neither the decision of the Commissioner that the Applicant need not lodge a return of income nor the decision to withdraw or revoke that decision, is a decision "making, or forming part of the process of making or leading up to the making of, assessments or calculations of tax" under the Assessment Act. In any event, on any view the Applicant was not, at the time those decisions were made, under any obligation to furnish a return of income for the year of income ending 30 June 1991. The Applicant had never furnished a return of income for any of the years of income ending 30 June 1983 to 30 June 1990 inclusive and it would seem that it was not required to do so. In all the circumstances, the Commissioner fails on this ground of objection.

2. In the result, the objection to competency fails and it must be discharged. This is a case where the Commissioner must pay the Applicant's costs of the objection to competency. No order will be made with respect to the costs of the motion since it was made prematurely before the first directions hearing. The directions hearing will be adjourned to 26 September 1990 and be treated as the first directions hearing.