Comm of Taxation (Cth) v CSR

[2001] HCATrans 472

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S278 of 2000

B e t w e e n -

COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA

Applicant

and

CSR LIMITED

Respondent

Application for special leave to appeal

McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 23 NOVEMBER 2001, AT 10.40 AM

Copyright in the High Court of Australia

MR C.M. MAXWELL, QC:   May it please the Court, I appear with my learned friend, MR K.M. CONNOR, for the applicant.  (instructed by the Australian Government Solicitor)

MR D.H. BLOOM, QC:   May it please the Court, I appear with MR A.J. PAYNE, for the respondent.  (instructed by Gilbert & Tobin)

McHUGH J:   Yes, Mr Maxwell.

MR MAXWELL:   Your Honours, this case, in our respectful submission, raises questions of fundamental principle in relation to the assessability of lump sum receipts where the amount received is undissected and of mixed character, that is to say, in part assessable and part not.  The questions I am about to identify apply with respect both to section 25(1), an income according to ordinary concepts, and section 26(j) which is concerned with:

amount received by way of insurance or indemnity for or in respect of ‑ ‑ ‑

deductible outgoings. 

KIRBY J:   Did I read in this case that the respondent concedes that there is another way that you can bring to tax this sum?

MR MAXWELL:   The respondent did make that concession and evidently from its summary in this proceeding puts that as the first basis upon which special leave should be refused.

McHUGH J:   You say you will not get enough tax out of them that way?

KIRBY J:   You want to wring some more out of the respondent?  It is a tiny amount.

MR MAXWELL:   We take the point seriously but it is important to emphasise, as the Court has just said, that different results will follow, depending upon which basis of assessment is applicable.  In particular, assessability by virtue of the capital gains provisions, Part IIIA, brings into account capital losses which are not brought into account if the assessment is under 25(1) or 26(j).  Secondly, that concession noted by the trial judge at the conclusion of your Honour’s judgment has never been suggested to render the balance of the proceeding moot.  No such point was raised in the appeal.

KIRBY J:   No, it does not render it moot.  I do not think it renders it moot.

MR MAXWELL:   No, indeed.

KIRBY J:   But it means you have got a few quivers in your bow.

MR MAXWELL:   That is so.

KIRBY J:   But you want the big one and you do not want to have the deductions.

MR MAXWELL:   We want the primary one.  As his Honour the trial judge noted, the principal argument put forward was a 25(1) argument, then a 26(j) argument and then, third, and only in default of winning on either of those first two, Part IIIA, and in our respectful submission, the assessment having been done on that basis ‑ ‑ ‑

KIRBY J:   You say, conceptually, you look at the primary basis of tax first and then you look at the others if you have to?

MR MAXWELL:   Yes, because, of course, capital gains ‑ ‑ ‑

KIRBY J:   But the respondent says that this is simply a matter of applying settled principles to established facts and that we should not revisit Allsop or we should just leave it stand where the court that has primary responsibility in this matter has left it.

MR MAXWELL:   Yes, your Honour.  There is no doubt that it is explicitly an application of what is said to be a principle to facts found and that is said by his Honour, at first instance, and the Full Court.

McHUGH J:   I cannot help but think that if you were granted leave there would be an all‑out attack on McLaurin and Allsop and you would want us to overrule them.

MR MAXWELL:   Your Honour, if necessary, we would, and it is part of my submission to indicate why that would be a course which the Court would, on the hearing of the appeal, entertain.  If I might first identify the questions so as to underline their importance, then say something about the so‑called Allsop principle and then why this is a case where special leave should be granted.  The two questions which arise in relation to an undissected lump sum of mixed character are as follows.  First, how is the whole to be characterised.  The so‑called Allsop principle says if part of it is non‑assessable the whole is non‑assessable.

We will say more fully in a few minutes that that is an unsatisfactory proposition in tax law in 2001.  It unreasonably ignores the assessable character of the balance which in this case is overwhelmingly the preponderance of the amounts received, and I will take your Honours to what the trial judge found about that.  Your Honours will have noted, as we have mentioned in the submission, it is said that this so‑called principle is destructive of the analytical integrity of the tax system for that reason, because you have here, as in Allsop, a little bit which might be capital, in this case a claim never brought but potentially capable of being brought which would, if it succeeded, produce damages of a capital character because the claim would be damages to reputation and goodwill can have the perverse effect of throwing a capital character over the entirety of the $100 million which the findings of fact made plain was received in settlement of claims for indemnity under insurance policies for risks with respect to products.

Carapark, which we have cited, makes it manifest that in such a case the receipt bears the character of the risk insured, in this case a revenue risk, and is a receipt in the ordinary course of the business, but we have this odd result in Allsop and in McLaurin.  Your Honours will recall in Allsop there is a claim with respect to road transport permit fees; that there was one incident where there was trespass to the vehicle and the his Honour the Chief Justice regarded that as having the result that the entirety was to be regarded as capital, even though the taxpayer himself had conceded that this was a receipt which arose out of the conduct of his business.

KIRBY J:   I can see your attack on this principle.  It seems, in a sense, to be a bit of a dinosaur from an earlier age.

MR MAXWELL:   Just so.

KIRBY J:   But, is it not a principle that is susceptible to a little deft amendment of the statute?  It has been around for a very long time now.

McHUGH J:   Forty years or so, has it not?

KIRBY J:   Given the size and complexity of the Tax Act, it is not a matter that is insusceptible to correction.  I mean, I could even sit down and try to draft it myself.

MR MAXWELL:   That is so.

KIRBY J:   There are some matters which are difficult to amend but this has been allowed to stand for 40 years and it does seem to be a relic of an age when attitudes to tax liability were different than they tend to be today.

MR MAXWELL:   Indeed, and if I might say, in particular, an era when the appreciation of the breadth of section 25 was altogether more limited than it is in this Court since Myer and Montgomery, in particular.

McHUGH J:   That really means that the whole case is about an attack on those two decisions.

KIRBY J:   Why do you not face up to that and that might make it a special leave matter?  You said, “If necessary, we would like to attack those” but you have to, have you not?

McHUGH J:   Otherwise, as we have said again and again, or certainly we said it in Westfield’s Case, that the Full Federal Court is the final court of appeal in taxation matters unless there is some exceptional case.  After the decisions in McLaurin and Allsop this is really only a question of application.  Here you have got a settlement sum.  It is received as a lump sum.  The integers of it are not attributed in any way and the respondent receives it as consideration for a release of causes of action, some of which, on any view I would have thought, concern non‑income matters.

Now, on that basis, all you have got is an argument about characterisation which hardly warrants the grant of special leave.  So, if the two cases stand, it seems to me that it is not a case for the grant of special leave.

KIRBY J:   That is my position too.

MR MAXWELL:   Your Honours, the Commissioner does make the attack on Allsop and McLaurin.  As below - of course there is a range of submissions about Allsop and McLaurin that they do not establish the principle for which they are said to stand but it I clear that the courts have taken the view that they do establish that principle, so the principle is there.  Alternatively, that these circumstances were distinguishable, and those arguments were rejected but, fundamentally, the Commissioner does submit that this Court should not allow the so‑called principle to stand because it produces a result which is contrary to the fundamental principle of the Income Tax Asessment Act that assessable income should be assessed.

The fact that you can tack on – not tack on – have in the undissected amount a bit, however insignificant, which might, because in this case it was a cause of action, have produced a damages payment which would be on the capital account, means that the rest of the $100 million is all capital.  It is so counter‑intuitive, in our respectful submission, so contrary to principle that this Court should not let that principle stand because this is an inappropriate result.

KIRBY J:   You say it is not just this case, it is hundreds of cases where this is being applied.

MR MAXWELL:   Hundreds of cases.

KIRBY J:   But what is your answer to the question?  It has been around for 40 years and a little bit of deft amendment could have cured it 39 years ago.

MR MAXWELL:   Two answers, your Honour.  In Esso v The Commissioner this Court overturned Grant v Downs which had been around since 1976.

KIRBY J:   Over 25 years.

MR MAXWELL:   Its longevity was not a difficulty.  Secondly – I mean, if there is error in the principle at the foundation, longevity cannot save it because this Court will – and I want now to make my second point – as clearly said by this Court in John dealing with Curran’s Case, questions of statutory construction and the application of provisions, in this case 25(1), fundamentally, and also 26(j), require that error be corrected.  In that case the taxpayer said this has been fixed up by statute and this Court did not regard that as answering the matter.  The decision in Curran under 51(1) was overturned because it was wrong.

In our respectful submission, these decisions should be overturned as being wrong, as having been – I mean, the other point about the time that has elapsed is that the income tax law has developed in those 40 years such that it is timely to revisit them.  The more out of date they are they more in need of examination they are.

KIRBY J:   And whilst they stand the Full Federal Court and the Full Court cannot do other than obey them.

MR MAXWELL:   Precisely so and, with respect to your Honour, that is the answer to the Westfield point because as his Honour said, “Look you can try and persuade me that ‑ ‑ ‑

McHUGH J:   I only mentioned the Westfield point on the application point.  I mean, while it stands, Westfield would say, “Well, we should get involved in an application point”.

MR MAXWELL:   That is so.  No, if that question of principle is not to be argued on the appeal then there is no question of fundamental principle, but there is a principle applied to facts.  We accept that but we say the questions of fundamental principle are the ones about characterising the whole:  does the capital tail wage the assessable dog; does the ‑ ‑ ‑

KIRBY J:   Are your grounds of appeal suitable to narrowing the question before this Court as to whether the decisions in Allsop and McLaurin still state the law?

MR MAXWELL:   The draft notice of appeal is at 87 and paragraph 8 – your Honours, we would not shrink from having that being the – because that is the primary question.

McHUGH J:   Yes.

MR MAXWELL:   If the answer to that is “Yes, wrongly decided and should be overruled”, then none of the other issues about whether this was or was not ‑ ‑ ‑

KIRBY J:   They can fixed up by the Federal Court.

MR MAXWELL:   They can be fixed up.

KIRBY J:   In the light of a new principle.

MR MAXWELL:   Yes, your Honour.  I meant, your Honour, in relation to Westfield, that if you read the judgments below, and of course his Honour, at first instance said, “I cannot do anything about it.  Allsop and McLaurin are there.  If anything is to be done it is to be done by the High Court”.  That is why my client is here.  Might I just draw to your Honour’s attention in order to emphasise what we would say is the absurdity of the result which this principle produces?

KIRBY J:   Give me some examples not just in this case.  I would like to understand you.  You gave the example of the case from which it sprang which is accounted intuitive result, at least as far as my intuition works.

MR MAXWELL:   Yes, your Honour.  If I might make good that point in relation to Allsop and then I will say something about this case, subject to time. Your Honours will find – I am not sure whether we provided the copy of the case to your Honours. In the findings of fact made by his Honour Mr Justice McTiernan - and they were expressed to be such at 345, point 7, and following - 113 CLR, his Honour found that:

At all times up to and including the date of the receipt . . . regarded the negotiations for settlement of the said action as relating solely to the recovery of permit fees . . . and in the minds of the appellant and his solicitors the said sum –

related to that and nothing else.  There was, however, scope for an action for interference with his vehicle but the other finding of fact at 346, point 5, was this:

the appellant always maintained . . . that the action so contemplated . . . which was in fact brought and the recovery by him of the said sum of £37,500, arose out of his business as a carrier –

Now, on the authority of Montgomery and Myer, that would be enough to make the entirety assessable by itself but puzzlingly their Honours in the joint judgment – if I might take you to 351, point 5 ‑ ‑ ‑

KIRBY J:   This is Chief Justice Barwick and Justice Taylor?

McHUGH J:   “But even if”, is that the sentence?

MR MAXWELL:   No, the previous sentence:

There is no suggestion that the release was illusory . . . and, that being so, we do not regard the allegations contained in par. 10(g) of the case stated as relevant matters for our –

but they were findings, actually, at 10(g) on 345, and that was the finding of the appellant regarded as solely referrable to the refund of the permit fees.  But there was, as their Honours note at point 3 of the page:

sufficient in the case to enable it to be said that during the period in question there had been unlawful interferences with the appellant’s vehicles and his business operations and in respect of these matters he had valid claims –

for trespass to chattels.  But, clearly in his mind, they were of no account.  He thought he was getting back what he had paid in permit fees in the course of his business, then the sentence to which the presiding judge referred:

But even if they are taken into consideration they would not affect the conclusion that the amount payable was an entire sum paid by way compromise of all these claims and no part of it can be attributed solely to a refund of fees paid by the appellant for permits.  In these circumstances there is no warrant for regarding the amount paid by him or any part of it as a refund or recoupment to him of any revenue disbursement made –

and, yet, his view was that it was all recoupment of a revenue disbursement.  So that is, in my respectful submission, counter intuitive ‑ ‑ ‑

KIRBY J:   You had better come back to this case, now.

MR MAXWELL:   - - - counter to the facts and a result which this Court would not reach on those facts in the modern era of section 25.  In any event, the case did not properly ‑ ‑ ‑

KIRBY J:   I will be interested to see how Mr Bloom can defend that.  I notice that Sir Maurice Byers argued the case.

MR MAXWELL:   Yes, your Honour and he argued McLauren on the side, interestingly.  Now, in the present case, if your Honours would go to application book 38, paragraph 38, his Honour found:

The applicant –

that is CSR:

has not established that the parties had in contemplation any other cause for payment than a compromise of the claims for indemnity for damages and costs under the insurance policies.

And, as the analysis of the evidence shows in the earlier pages, that is how CSR regarded it.  This was a settlement of a claim which they estimated might be worth as much as £750 million, and that is set out in paragraph 40, that is, their claims under the insurance policies were:

worth in excess of £750 million to the Applicant.

Paragraph 40, but if I might go back to 38 his Honour says, the second sentence:

The mere fact that the deed releases claims which go beyond that is not sufficient, unexplained by evidence, to establish that any such claim was then in contemplation.

He makes a finding at the foot of 38:

the proper finding is that there was no such additional claim –

That is, no claim other than the claims for indemnity under the insurance policies:

in contemplation at the time of entering into the deed.  It follows that no amount could have been attributed to it by releasee or releasor.

Now, you would think that would be enough to make the whole amount assessable but, no.  In any event, his Honour goes on to reinforce that conclusion by saying in paragraph 39:

This is hardly surprising.

Would your Honours allow me to continue for a few minutes?

McHUGH J:   Yes.

MR MAXWELL:  

This is hardly surprising.  There is no evidence of any such claim having been advanced –

so the taxpayer did not make these other claims which it later said it had released -

and the reality is that the settlement which was arrived at was at a significant discount to the amount at which it would have been assessed –

as we have already noted, a discount of sixth/sevenths, or more.  There is a reference to the applicant’s position paper which makes it perfectly clear that what was being settled was the claims against the insurers for indemnity and nothing else, as a matter of commercial reality.  That is what the whole of the text on 39 says.  There is not a mention of other causes of action.

McHUGH J:   I think you have had sufficient time, thank you.  Yes, Mr Bloom.

MR BLOOM:   Thank you, ,your Honours.

McHUGH J:   The Court would like to hear you on ground 8 of the notice of appeal. 

MR BLOOM:   Well, your Honour ‑ ‑ ‑

McHUGH J:   That has taken the wind out of your sails, by the sound of things.

MR BLOOM:   Never, your Honour.

KIRBY J:   What can you say except that it has been around a long time and could have been fixed up?

McHUGH J:   What can you say except it has stood for 40 years and we should not interfere?

MR BLOOM:   A few other things than that, perhaps.  Yes, it has stood for 40 years and you should not interfere.  That is the first thing I do say.  Secondly, the problem that comes from the Court’s interfering as opposed to the legislature’s interfering is the legislature usually does it prospectively but when the Court interferes it has a sort of retrospective effect.  So that taxpayers who have adjusted their affairs on the basis of the law, as they understand it from the High Court, have that taken away, as it were, in retrospective fashion if the Court intrudes.

KIRBY J:   That is a good point.

MR BLOOM:   This is what I think, with respect, your Honours were saying the majority in Payne recently, about not ripping up the law relating to travelling expenses, using the expression which Sir Owen Dixon used in Lunney’s Case for the very self same reason.

KIRBY J:   By a majority.

MR BLOOM:   Yes, your Honour, I did say the majority.  In 1975 the Asprey Committee recognised these principles in McLaurin and Allsop and said that – and the principle is different to the way my learned friend stated it and I want to come back to that in a moment, too, but they said ‑ ‑ ‑

McHUGH J:   The Asprey Committee was critical of it, was it not, but ‑ ‑ ‑

MR BLOOM:   Not only critical, they recommended legislation to overcome it.  They said we should have specific legislation introduced to apportion on a valuation basis, and the reason you need that sort of legislation is that when you understand the principle it is really this:  my learned friend put it that part of the claim was, in effect, able to be computed as the revenue part and part was able to be computed as capital.  That is not right.  One has claims of capital, and you do not know how much they sound.

In a similar case in the United States to the one that was brought in the second New Jersey proceedings here, John Manville claimed $US5 billion in damages which is a little bit more than $A100 million even on the current exchange rate.  The point is and the point that their Honours were making in Allsop was that where you have claims of a large amount in capital and claims of a large amount in revenue and you get one undissected lump sum you cannot say that any one dollar of the lump sum you get is for revenue or for capital and on that basis you have to say – you have to allow that the whole could be for capital and therefore the whole comes in as capital.  That is the principle which is differently put, frankly, by my learned friend.

Now, the Asprey Committee recommended specific legislation.  That recommendation was never acted upon although 10 years later capital gains tax was brought in, 10 years after the Asprey Report.  Now, this amount does come in under the capital gains tax legislation.  My learned friend says he gets less.  I do not what he means by that.

McHUGH J:   He means by that that you have to take into account indexation, does he not?

MR BLOOM:   Your Honour, his own particulars which we have put in say the full $100 million is the full assessable amount.  In this case and in any case, he says, the asset for capital gains tax purposes is – relying on something you said, I think, in Hepples is the right to sue and that arose and had no cost base and therefore the full $100 million comes in as a capital gain.  He says, “Well, you might have some capital losses”.  This company has none, I might say, but “You might have some capital losses”.  So it might be that if you brought it in as revenue you might have some revenue losses but that is because you have made losses, not for anything to do with the character of the amount coming in, and here the whole amount comes in under the capital gains tax provisions.

Obviously, the legislature thought having the benefit of the recommendations of the Asprey Committee that the capital gains tax would be enough to deal with this and other sorts of problems.  Now, section 25 and section 26(j), unlike section 51(1), do not contain the words “to the extent to which”.  Section 51(1), as the High Court said in Ronpibon contemplates apportionment, therefore, 25 and 26(j) do not, and McLaurin and Allsop work upon that principle.

My learned friend also faintly repeated an allegation which is made in his written submissions that somehow or other the claims here depended upon the relationship of insurance.  The principal reliance is placed in their written submissions upon paragraph 67 in the application book which is at page 46.  Your Honours see there:

The Settlement Sum has been received by the Applicant upon claims against its insurer.

If your Honours turn back two pages to page 44, you will see that that is the submission of the respondent.  Indeed, if your Honours go back to find the real finding of fact at paragraph 13, your Honours will see, and this is the case – it is page 32 and the Full Court repeats this:

NZI asserted that the policies relied upon by the Applicant in the New South Wales proceedings did not exist –

So they denied not only liability under the policies but that there were any policies.  As to the finding of the learned trial judge that my learned friend took you to, there was a notice of contention about that in the Full Court, namely that the only cause of action that anyone had in contemplation was the indemnity.  Well, it could not have been indemnity because insurance was being denied of itself so it was more than that, but the contention was there because less than three months after the settlement deed the second New Jersey proceedings in which all these capital claims were asserted against CIGNA were instituted in the United States of America, within three months.  Now, that is hardly to be thought to be something that came out within that short three‑month period and there were findings ‑ ‑ ‑

McHUGH J:   Yes, but you are addressing generally.  We asked you to address on ground 8.

MR BLOOM:   I am sorry, your Honour.  On my feet I had that problem.

KIRBY J:   It is not like you to get carried away, Mr Bloom.

MR BLOOM:   Certainly not, your Honour, and I am sorry I did.

KIRBY J:   Your best point is the point that you opened with and that is that Parliament corrects prospectively, we correct retrospectively, and this is an area with a lot of money turning on it where one could infer that the tax implications of the settlement would have been taken into account by the parties.

MR BLOOM:   Yes, your Honour, and with respect, not only that, in 1975 there was a specific recommendation for an amendment and the legislature chose not to act upon that.  They did bring in capital gains tax in 1985 and this amount comes in under the capital gains tax.

KIRBY J:   Yes.

MR BLOOM:   So, with respect, it is not a proper case for your Honours to rip up the existing rules.

McHUGH J:   Yes, Mr Maxwell.

MR MAXWELL:   Your Honours, might I be permitted to read the passage from John’s Case 166 CLR at 440 to which I referred in which Curran was overturned.  The joint judgment of the Chief Justice Mr Justice Mason and Justices Wilson, Dawson, Toohey and Gaudron said:

in the end justification for not following an earlier decision construing a statute –

in that case 51(1) –

must be that in the view of the Court that earlier decision was wrong, that it was wrong in a significant respect, and that the Court should give effect to the intention of Parliament.

We say the intention of Parliament is that assessable income should be assessed.

KIRBY J:   Yes, but ‑ ‑ ‑

MR MAXWELL:   If I might then deal with – I am sorry to interrupt your Honour – with the point about reliance.  Their Honours went on to say:

The same considerations, in our view, apply with equal force if the issue is identified as one of the application of a statutory provision . . . 

Given the special considerations applicable in cases of statutory construction and application –

and certain other matters:

in our view, the Court ought not regard the decision in Curran as determinative of the present case, notwithstanding that the appellant taxpayer and other members of the Malindi partnership relied upon its authority as the basis for ordering their affairs.

Now, that was a case where there was a particular scheme which you could avail yourself of in reliance on Curran.  This is not even as strong for the taxpayer as that.  This is a settlement of an insurance claim or claims in the course of the conduct of this company’s business and it cannot in any strong sense be said, “Well, they will have planned the settlement on the basis that it was not assessable”.  This was a settlement made in the usual way, taking account the risks and prospects of the litigation, which was litigation about indemnity, and the tax effect is a question for the application of general provisions, from time to time.

McHUGH J:   Yes, but one of the distinctions between this case and John’s Case is that you did not have a recommendation from the

Asprey Committee which the Parliament did not accept but instead put forward in a different method of assessment.

MR MAXWELL:   But, with respect, your Honour, the issue that arises in cases of this kind is not primarily a capital gains question.  It is not, with respect, correct to say ‑ ‑ ‑

McHUGH J:   I understand that and ‑ ‑ ‑

MR MAXWELL:   ‑ ‑ ‑ that capital gains is the legislative answer to the Allsop/McLaurin question.  These are income questions, primarily, and decided as such, with respect, and the question is:  does a bit of capital give a capital character to the entirety?  That is not really a capital gains question.  It is a question of characterisation.  Accordingly, we would rather rely on the recommendation of Asprey as all the more reason why Parliament not having corrected this, the principle is still producing absurd and, in our respectful submission, unreasonable results, as in this case.  Parliament has not acted.  This Court, in our respectful submission, should, as it did in Curran, to correct something which is fundamentally destructive of the analytical integrity of the tax system by leaving very substantial amounts of assessable income not assessed because part of the lump sum happens to be of a capital character. 

In our respectful submission, this is a proper case for the Court to examine those decisions.  It is an ideal vehicle for doing so, and, in our respectful submission, special leave should be granted for that purpose.

McHUGH J:   Yes, thank you, Mr Maxwell.

The only point in this application that would warrant a grant of special leave is the contention of the applicant that this Court should reconsider the correctness of the Court’s decisions in McLaurin v The Federal Commissioner of Taxation (1961) 104 CLR 381 and Allsop v The Federal Commissioner of Taxation (1965) 113 CLR 34.

While those decisions stand, the Federal Court and other decision‑makers are bound to apply the holdings in those cases.  There are strong arguments in favour of revisiting the principles and the approaches in those cases.  However, the holdings have stood for 40 years in one case and for 36 years in the other, despite many amendments to the Act.  They have stood, notwithstanding criticisms by the Asprey Committee and by text writers such as Professor Parsons.

The Parliament did not adopt the recommendation of the Asprey Committee concerning this matter.  Instead the Parliament introduced a capital gains tax which will usually have the effect of bringing to tax amounts that are exempt from income tax by reason of the decisions in McLaurin and Allsop.  The respondent accepts that the sum in question in the present case can be brought to tax under the capital gains legislation. 

Any change in the law by this Court would operate retrospectively upon taxpayers who were entitled to order their affairs on the basis of this Court’s rulings in McLaurin and Allsop. 

In all the circumstances, particularly having regard to the recommendation of the Asprey Committee and the failure of the legislature to act on it, we are not persuaded that this is a proper case for the grant of special leave to appeal.  The application is dismissed and must be dismissed with costs.

The Court will now adjourn to reconstitute.

AT 11.16 AM THE MATTER WAS CONCLUDED