BHP Billiton Limited v Van Soest - [2015] HCATrans 153

[2015] HCATrans 153

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A3 of 2015

B e t w e e n -
BHP BILLITON LIMITED
Applicant
and
JORDAN VAN SOEST
Respondent
Application for special leave to appeal

FRENCH CJ
GAGELER J

TRANSCRIPT OF PROCEEDINGS

FROM SYDNEY BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 19 JUNE 2015, AT 10.26 AM

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR T.G.R. PARKER, SC, for the applicant. (instructed by HWL Ebsworth Lawyers)

MR P.C.B. SEMMLER, QC: May it please the Court, I appear with my learned friend, MR S. TZOUGANATOS, for the respondent. (instructed by Turner Freeman Lawyers)

FRENCH CJ: Yes, Mr Walker.

MR WALKER: May it please the Court. Your Honours, could I take you directly please to page 214 of the application book, where in the reasons for the Full Court of Justice Gray, part of – with respect – a very thoroughgoing canvassing of her Honour’s reasons at trial is in train. His Honour on page 214 is referring to a report by a Dr Wilson of 1968. Your Honours will recall that the claim against my client was in respect of mesothelioma suffered by a man who had been a painter and docker in the Whyalla shipyards in 1962.

FRENCH CJ: The alleged breach went to the failure to test, which would have made it aware of the risk?

MR WALKER: Yes, in part.

FRENCH CJ: In part, yes.

MR WALKER: I think your Honour may have added a rider “which would have revealed”. Now, if that was the allegation that would make good legal logic for it to have been the allegation. One thing is crystal clear – there is no finding, indeed, there is a rather deliberate ‑ ‑ ‑

FRENCH CJ: As to what it would have revealed.

MR WALKER: ‑ ‑ ‑ refraining from finding as to what would have been revealed. That is, of course, an important point in our case. What I want to point out about the Wilson report, having noted that it is six years later, is that what is recorded in paragraphs 96 and 97, and from the course of the trial, shows that this was the closest, by way of a proxy – and proxies in this area of factual disputation are common and appropriate – this was the closest to what might be called an estimation, or an assessment, a finding of fact in relation to exposure.

Now, a furphy, a travesty of our case is continued in the written submissions against us here to the effect that we were searching for precise quantitation - nonsense. We accept, as one would hope from an employer that did not have test records, that a lack of numerical, calibrated measurements could not possibly be the end of a plaintiff’s case and we accept as well that what our…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] HCATrans 153
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by BHP Billiton Limited (BHP) against a decision of the Full Federal Court concerning the interpretation of a notice of intention to cease to be a resident of Australia for tax purposes. The dispute arose from the Commissioner of Taxation's assessment of capital gains tax on the disposal of shares by Mr. Van Soest, who had previously been a resident of Australia. Mr. Van Soest had lodged a notice of intention to cease to be a resident of Australia with the Commissioner, and the Commissioner sought to assess capital gains tax on the disposal of shares that occurred after this notice was lodged.

The central legal issue before the High Court was whether the notice of intention to cease to be a resident of Australia, as lodged by Mr. Van Soest, was effective to prevent the Commissioner from assessing capital gains tax on the disposal of shares that occurred after the date of the notice, notwithstanding that Mr. Van Soest was still considered a resident of Australia for tax purposes at the time of the disposal. The High Court was required to determine the proper interpretation of section 104-25(1) of the *Income Tax Assessment Act 1997* (Cth) and its interaction with the definition of residency for tax purposes.

The High Court, in allowing the appeal, held that the notice under section 104-25(1) was not a unilateral declaration that could alter the taxpayer's residency status for tax purposes. Instead, it was a notification of an intention to cease residency, which would only become effective upon the actual cessation of residency. Therefore, as Mr. Van Soest remained a resident of Australia at the time of the share disposal, the notice did not prevent the Commissioner from assessing capital gains tax on that disposal. The Court reasoned that the provision required both the intention to cease residency and the actual cessation of residency for the notice to have its intended effect, and that the taxpayer could not unilaterally determine their tax residency by lodging such a notice. The High Court ordered that the appeal be allowed and the orders of the Full Federal Court be set aside, with the matter remitted to the Federal Court for further consideration.

Orders