Commissioner of Taxation v Scully

[1999] HCATrans 13

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M58 of 1998

B e t w e e n -

THE COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA

Applicant

and

LYNETTE C. SCULLY

Respondent

Application for special leave to appeal

McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 12 FEBRUARY 1999, AT 12.43 PM

Copyright in the High Court of Australia

MR G.T. PAGONE, QC:   If it please the Court, I appear with MS J.J. BATROUNEY, for the applicant.  (instructed by the Australian Government Solicitor)

MRS A. MOSHINSKY, QC:   If it please the Court, I appear with my learned junior, MR S.R. McCREDIE, for the intervener.  (instructed by The Victorian WorkCover Authority)

McHUGH J:   We will come to this question of “intervention” in a moment.  I note your appearance. Mrs Moshinsky.

MR G.J. DAVIES, QC:   If the Court pleases, I appear with my learned friend, MR J.F. GOLDBERG, for the respondent.  (instructed by Coadys)

McHUGH J:   Mrs Moshinsky, how do you claim a right to intervene?  Interveners, when allowed in, are parties and there are no parties to special leave applications.   An application for special leave is an application to commence proceedings in the Court.  Hitherto, as far as I am aware, no interveners have been allowed – although, in one of the tax cases, I think, the Law Council came and put some submissions.  It is a matter for the Court.  We are not prepared to allow you to intervene but we have seen your submissions and we will take them on board.

MRS MOSHINSKY:   Have your Honours seen our further submissions as well?

McHUGH J:   You sent submissions.

MRS MOSHINSKY:   We sent a submission and further submissions, as well.

McHUGH J:   Yes.

MRS MOSHINSKY:   As long as your Honours have that.

McHUGH J:   Yes, thank you.

MRS MOSHINSKY:   We did say we did not seek leave to be heard.  Thank you, your Honour.

McHUGH J:   Having said that, the Court thinks it might be assisted by hearing from you first, Mr Davies.

MR DAVIES:   Yes, your Honour.  This case, your Honours, involves simply the issue as to whether the payment in question was consideration in respect of personal injury.

McHUGH J:   Yes, I know, and normally one would be inclined to say it is a question in which there were arguments both way, ordinarily the Full Court of the Federal Court is the appropriate place to be determining these issues, but this case does seem to have some considerable importance, both in terms of the administration of the Act but, also as the submissions of the “intervener” show, it has ramifications outside the scope of the Act.  Why should not the Court take the matter on to give a definitive answer?  I appreciate there are good arguments both ways.

MR DAVIES:   Yes, your Honour.

GUMMOW J:   You seek protection as to costs, do you not?

MR DAVIES:   We do, yes, your Honour.  We would seek protection as to costs and I - - -

McHUGH J:   It is really concerned with the question of public interest.

MR DAVIES:   Yes.  I cannot deny that, your Honour.  It obviously is.  The point really was that the Federal Court was right but it does not advance this application very far, your Honour.

McHUGH J:   No.  I mean, ordinarily one would send the Commissioner packing, I think.

MR DAVIES:   However, your Honour, I do act for a lady who is permanently and totally incapacitated.  The amount of tax involved is $2,000.  In those circumstances, we would seek protection in relation to costs, if the matter proceeds.

McHUGH J:   Yes.  Thank you very much.

MR DAVIES:   If the Court pleases.

McHUGH J:   Are you prepared to give an undertaking to pay not only the respondent’s costs on the appeal but also not to disturb the orders below?

MR PAGONE:   I hope your Honour means my client rather than me giving that undertaking, your Honour.  With that qualification, yes, your Honour.

McHUGH J:   Yes.  There will be a grant of special leave in this matter upon the condition that the Commissioner pay the costs of and incidental to the - of the respondent to this appeal and that there will be no disturbing of the costs orders made in the court below.

MR PAGONE:   If the Court pleases.

AT 12.47 PM THE MATTER WAS CONCLUDED