Cwealth of Aus v SCI Operations- v ACI Operations

[1997] HCATrans 35

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S167 of 1996

B e t w e e n -

COMMONWEALTH OF AUSTRALIA

Applicant

and

SCI OPERATIONS PTY LTD

Respondent

Office of the Registry
  Sydney  No S168 of 1996

B e t w e e n -

COMMONWEALTH OF AUSTRALIA

Applicant

and

ACI OPERATIONS PTY LTD

Respondent

Applications for special leave to appeal

BRENNAN CJ
McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 13 FEBRUARY 1997, AT 9.34 AM

Copyright in the High Court of Australia

________________________________

MR S.J. GAGELER:   May it please the Court, I appear for the applicant in both of those matters.  (instructed by the Australian Government Solicitor)

MR J.J. SPIGELMAN, QC:   If the Court pleases, I appear with DR J.E. GRIFFITHS for the respondents.  (instructed by Blake Dawson Waldron)

BRENNAN CJ:   Mr Gageler.

MR GAGELER: Your Honours, the special leave questions raised in this application can be formulated in various ways, but they essentially involve two topics. The first topic is the proper construction of section 51A of the Federal Court of Australia Act which is in terms substantially identical to section  77MA of the Judiciary Act governing the award of interest in this Court and also substantially identical to statutory interest provisions in Western Australia, South Australia and Queensland.  The second topic, your Honours, is the existence and date of accrual of any cause of action for the recovery of amounts previously paid as customs duty which may be consequential upon the making of a commercial tariff concession order.

May I take your Honours first to page 141 of the application book to a passage that appears in the dissenting judgment of Justice Sackville.  Your Honours, the position was that the Commonwealth was successful before Justice Wilcox at first instance and unsuccessful on appeal, the majority being comprised of Justices Beaumont and Einfeld, with Justice Sackville dissenting.  So the Federal Court was split 2:2 in the result.  Your Honours, at page 141 Justice Sackville says this, about line 21:

Although the case as pleaded by the appellants rested on the contention that a CTCO -

that is commercial tariff concession order -

should have been made in respect of PET resin no later than 1 November 1987, the appellants did not persist with that contention before the trial judge; nor did they do so on the appeal. Their argument is simply that they are entitled to interest on the amount of refunded duty from the date of the original payments, either by reason of s.51A or the general law of restitution. That argument in no way depends on any allegation that the Comptroller failed to make the CTCO by a particular date; nor does it depend on any contention that the appellants were subjected to unwarranted delays, for example, because the Comptroller incorrectly refused to make a CTCO until ordered by the Court to do so.

As I understand his argument, Dr Griffiths did not dispute three propositions ‑ ‑ ‑

BRENNAN CJ:   We have read the judgments, Mr Gageler.

MR GAGELER:   Your Honour, it is important to emphasise the three propositions, and from that his Honour over the page distinguishes this case where - the three propositions establish this, your Honour, that until the making of the CTCO on 3 June 1994, the amounts paid as customs duty were lawfully paid and lawfully held.  What his Honour says is that is very different from Royal Insurance categories (i) and (ii)(b); also very different from the Collector of Customs v Gaylor Case and also very different from Woolwich.  And what his Honour went on to hold was that this was in effect a Royal Insurance category (ii)(a) case.  It was a case where the entitlement to repayment arose not by reference to common law restitutionary principles but by reason only of the retrospective operation of the statute.

BRENNAN CJ:   That is the key question, is it not?

MR GAGELER:   Yes, your Honour.

BRENNAN CJ:   And what does that turn on, what section of the Act?

MR GAGELER:   Section 269N(1), your Honour, which comes into operation only upon the making of a commercial tariff concession order.

BRENNAN CJ:   Where do we find 269N(1)?

McHUGH J:   In paragraph 6 of your submissions.

MR GAGELER:   Yes, it is, and it is also set out at page 65 of the application book beginning at line 40.  Relevantly it provides:

A concession order.....shall be deemed to have come into effect on such day before the making of the order as is specified in the order.

It relies for its operation first upon the making of a commercial tariff concession order and, your Honours, his Honour ‑ ‑ ‑

BRENNAN CJ:   Now what is meant by “deemed” there?  What is the operation of “deemed to have come into effect”? 

MR GAGELER:   It means ‑ ‑ ‑

BRENNAN CJ:   Deemed for all purposes, including section 51A of the Federal Court Act?

MR GAGELER:   That is something that Justice Sackville dealt with, your Honours.  It is deemed for the purposes of the Customs Act to have come into effect on an earlier date, as in Royal Insurance category (ii)(a), that the amounts previously paid lawfully as customs duty and lawfully retained are to be repaid.  The question is how and the Act itself, in my submission, provides for the mechanism of a refund under section 163 so that as in Royal Insurance and as your Honour held in Peverill, it would be my primary contention, although this was not accepted by Justice Sackville, that there is no entitlement to recover by action either at common law or based on the statute, that any entitlement to a refund arises by reason of a mandatory duty of the Comptroller-General of Customs which is enforceable by mandamus or other mandatory order.

BRENNAN CJ:   That means that the whole case turns on the meaning to be assigned to the words “shall be deemed to have come into effect” in section 269N.

MR GAGELER:   The whole case could potentially turn on that and that, in my submission, is how the case is to be correctly resolved; indeed, how it was resolved by his Honour Justice Sackville.  But that is not the way ‑ ‑ ‑

BRENNAN CJ:   The question is does it not depend on this:  either the money which represents the refund sum became due as at the date of their original payments or it became due when the CTCO was made?

MR GAGELER:   Yes.

BRENNAN CJ:   Now, if it became due as at the date of the original payments and the Court is bound to treat the amount that is recoverable as having become due as at those dates, 51A applies.

MR GAGELER:   No, your Honour, it is still a question of identifying a cause of action and when that cause of action accrued.

BRENNAN CJ:   I appreciate that.  I am putting it to you on the footing that it is found that it became due and was recoverable eo nomine as at the time when the original payments were made.

MR GAGELER:   That involves a particular construction of section 269N.

BRENNAN CJ:   Quite.  And on that footing 51A applies.

MR GAGELER:   Yes.

BRENNAN CJ:   If, on the other hand, it becomes due when the CTCO is made or it is payable only by way of the enforcement of a statutory duty, 51A does not apply.

MR GAGELER:   Correct.

BRENNAN CJ:   So it all turns on the meaning to be attributed to particularly section 269N(1) of the Customs Act?

MR GAGELER:   Yes, your Honour.

BRENNAN CJ:   Now, why should this Court give special leave to construe some words in the Customs Act?

MR GAGELER:   Because, your Honour, the way your Honour has put it is the correct resolution of the case, in my submission.  That is what it turns on.  That is how I argued.

BRENNAN CJ:   It may well be the correct resolution, but why should this Court give special leave to construe a section?

MR GAGELER: Because the way in which your Honour has put it is not the way in which the Full Court of the Federal Court has dealt with it in the majority judgment. The Full Court of the Federal Court in the majority judgment has dealt with it as a section 51A case and has dealt with it as a matter of construction of that provision.

GUMMOW J:   They have not resolved 51A because there is the windfall defence.  The windfall defence remains to be litigated in relation to their construction of 51A.

MR GAGELER:   Your Honour, in effect they have found that there is an entitlement to interest.  They have found liability.  It is just a matter of quantum.  Your Honours, the way that the majority dealt with it is at pages 95 and 96 in, in my submission, a very unsatisfactory way.  What they say at page 95 line 35 and following is that:

In our view, s.51A(1)(a) should be treated as picking up the date when, by the operation of the relevant legal processes, the cause of action, notionally, or in truth, arose.

I will not read the remainder of that passage which goes over to page 96. But that is the entirety of the reasoning of the court on the critical issue. There is no analysis there of what the cause of action was. There is no explanation of what is meant by the phrase “relevant legal processes”. There is no warrant, in my submission, for what is described over on the top of the next page as “the minor gloss” on section 51A, and that is the way the court dealt with this, as a case that deals with the operation of section 51A.

So far as the court there on page 95 says that this “would accord with the intent of the scheme of the Customs legislation”, there is just no analysis of the scheme of the Customs legislation.

McHUGH J:   But that is the problem, is it not, about the case?  Speaking for myself, I think your arguments have a great deal going for them, but is it is a special leave point?  I mean, the whole case is really concerned with the application of a particular section of the Customs Act on the facts of the case.

MR GAGELER:   Your Honour, there are a couple of things to say about that.  It is not very much different from Royal Insurance.  In fact I say Royal Insurance governs this case.  One could have said the same thing about Royal Insurance and special leave was granted in that case.

BRENNAN CJ:   But that was granted in order that the question of the nature of the cause of action under a statute so couched could be determined.

MR GAGELER:   That arises in this case, your Honour.

BRENNAN CJ:   And has been determined already in Royal Insurance.

MR GAGELER:   In a way that I say is favourable to me and has been misapplied by two judges of the Federal Court and correctly applied by another two judges.

BRENNAN CJ:   What you are saying is that the decision below is wrong.

MR GAGELER:   I am saying that, yes.

BRENNAN CJ:   Now the next point is, assuming it is wrong, should you get special leave?

MR GAGELER:   Yes, because it deals not only with section 269N of the Customs Act but it deals also with section 51A - not only (1)(a) which was argued but (1)(b) which was not argued - of the Federal Court Act which has implications, not only for the Federal Court statute but for statutes in other jurisdictions.  Your Honours, I could say more about 51(1)(b).  There is an elaborate passage in the judgment of the Full Court which deals with 51(1)(b).  The great difficulty with that, as Justice Sackville points out in his postscript to his judgment, was that the point was not argued.  Not only was the point not argued but the point proceeds on an assumption that the Comptroller-General of Customs acted unreasonably.  That point was not only not argued but it was originally pleaded and it was abandoned at the trial, as the passage from Justice Sackville’s judgment that I read out to your Honours illustrate.  Now, there is another special leave point.

GUMMOW J:   Was the proceeding in the Full Court of the Federal Court an interlocutory appeal to that court?

MR GAGELER:   No, it was not.  Justice Wilcox dismissed the application and it was a final appeal.  The form of order made by the Federal Court was something formulated by the majority.  I do not recall anything like that appearing in the notice of appeal to the Full Court.

GUMMOW J:   But it has to go back to the primary judge or another judge, has it not?

MR GAGELER:   It would to give effect to the order, whatever the order means.  It is a very difficult order to understand, particularly in the light of the reasons.

GUMMOW J:   That can be fought out before some primary judge, I suppose, if need be with further reference to the Full Court.

MR GAGELER:   Yes, to tell us what was meant by the order, but the problem is, your Honour, it determines liability and, correctly applied, Royal Insurance says, in our submission, there is no liability.  So, your Honours, I accept that the case can be said to turn on the construction of the Customs Act.  That, in itself, is no insignificant thing.  The Customs Act - your Honours, I put some figures in the written submissions.  There is a lot of money at stake.  The commercial tariff concession order scheme does not regularly come before the court but it is a very, very important administrative scheme and there are hundreds of millions of dollars which turn on it. 

If this decision is correct, then it applies not only in this case but to all commercial tariff concession orders, all of which are backdated in accordance with the scheme.  It applied to the legislation in its previous form, it applies to legislation in its current form.  Now, my friends in their submissions say, “Oh, the legislation in its current form has got strict time limits involved”.  That is true up to a point.  But there is provision for reconsideration and then there is provision for appeal on the merits to the Administrative Appeals Tribunal and that, experience has shown, can take a very long time to resolve.  So the potential for a lot of time being involved, a lot of money involved, is still there.

What else has to be recalled about the commercial tariff concession order scheme is that the order when made applies to any importer of goods.  It does not simply apply to the person who applied for the order.  It applies to any importer of goods who meets the description in the order as made and it will be backdated.  That means that anyone who imported goods during that time would be entitled to a refund.  Most of these importers would, of course, be people who have already passed on the burden to someone else.  So, your Honours, even if it is treated as a Customs Act case, it is still a very important point and one of very general application.

Finally, your Honours, there is the point, which I do not wish to over‑emphasise but which is there, and that is that substantial injustice which I say occurred in the individual case because the court proceeded to entertain a point which was not run, which was raised with me in my address as a respondent in the Full Federal Court and I told them repeatedly in passages that are set out in the transcript extracted in the application book, that it was not run, I did not come prepared to meet it and it could not be entertained.  The court nevertheless entertained the argument and made a finding of fact, an inference, that because it took seven years for the commercial tariff concession order in this case to be made, that was due to the unreasonable behaviour of the Comptroller-General of Customs. 

Now, your Honours, that inference was not available, in my submission, as a matter of procedure, as a matter of substantial fairness and if I had thought that it could have been entertained properly by the court, it is something upon which I would have sought to lead evidence.  It would be something which I would wish to show was contrary to the fact.

GUMMOW J:   There is a third branch to it too, which is the general law claim for so-called unjust enrichment.

MR GAGELER:   It is difficult to know whether that is raised.

GUMMOW J:   Do you complain about that as well?

MR GAGELER: The majority said, “Well, we think there might be a general law claim here but there is no need to decide that because section 51A is sufficient.”

GUMMOW J:   But was it debated, that is what I mean?

MR GAGELER: It was fully debated, your Honour. I would expect, if special leave were granted in this case, that it would be something that would be raised by notice of contention by the other side. It was fully debated. It was found not to exist by Justice Wilcox and it was found not to exist by Justice Sackville, both in my favour, and the majority said we do not need to deal with it because we already find liability under section 51A.

GUMMOW J:   Can you answer me this:  if you are right about the construction of 269N of the Customs Act, does that pull down all of these other three branches, (1)(a), (1)(b) and restitution?

MR GAGELER:   Yes, unless the (1)(b) construction adopted by the Full Court is correct.  The (1)(b) construction is that even though it says instead of making an order under (1)(a) there can be a lump sum, that it is somehow an independent discretion, and even if the cause of action arose at the time of the making of the commercial tariff concession order ‑ ‑ ‑

GUMMOW J:   So independently of your construction of section 269(a), if the majority of the Full Court is right about (b), you could still be in trouble?

MR GAGELER:   That is right, yes.  But of course I would contend on the appeal that they are wrong for all the reasons given.  So that is probably a qualification to the answer I incorrectly gave to your Honour the Chief Justice.  That is right, yes.  But of course I would contend on the appeal that they are wrong for all the reasons given.  So that is probably a qualification to the answer I incorrectly gave to your Honour the Chief Justice  because there still is the 51(1)(b) point as well as the 269N point.  If your Honours please.

BRENNAN CJ:   Yes, Mr Spigelman.

MR SPIGELMAN:   Could I take your Honours in the first instance to the orders which appear at page 124.

McHUGH J:   Page 124 or 174?

MR SPIGELMAN:   Page 124.  They probably appear later as well, your Honour, but I am looking at it in the form the orders as proposed.  Page 174 is perhaps the final orders and they are in the same form.  But 174 is the orders as made, sorry, rather than those proposed.  Your Honours will see there that the matter has been remitted for the exercise of the discretion, namely what the majority of the Full Court did was to declare that, subject to the good cause point:

the appellants are entitled to an order for interest under s.51A(1)(a) ‑

which turns on whether there was a cause of action and when that cause of action arose, and then says:

or if this be inappropriate, an order for interest -

under 51A(1)(b).  The matters for which my friend complained on what I might call his procedural fairness grounds are matters that he can agitate before the judge, namely they are matters as to from what date should an order under 51A(1)(a) operate.  That is a matter that the Full Court did not exercise a discretion about.  That is a matter to which the question of the default and delay in the making of the CTCO for a period of seven years plainly goes.

BRENNAN CJ:   I am not quite with you there, Mr Spigelman.

GUMMOW J:   I am not sure about that.

BRENNAN CJ: Section 51A(1)(a), just confining attention to that subject to start with, does not the declaration proceed on the footing that there was a liability antecedent to the making of the CTCO order?

MR SPIGELMAN:   Oh yes, I am sorry.  With respect to (a), yes it does.  There was that liability but the question - what my friend was complaining of was he would have, if he had received adequate notice et cetera, adduced evidence as to who was responsible for the delay, saying that it was not the department, obviously evidence of that form.  That evidence can still be admissible before the judge to whom the matter is remitted on the question as to the identification of the date.  The Full Court has not exercised a discretion to say that interest is payable from a certain date, in the sense of to be paid from that date.  It has determined the question of law that it is open for the trial judge to find that it would be backdated to that date.  But the actual date to which it should be backdated is not determined.

There is no finding of fact - and I will take your Honours to this if your Honours wish - of the character for which my friend contends in any part of the critical reasoning.  They make reference to the background of delay and matters of that character but they do not do so in the critical part of their reasoning which is that one can backdate to that date.  That is a question of law, and I do not doubt that.  But the issue of which I am primarily now addressing is that this is not an appropriate vehicle because matters of a critical character are still outstanding between the parties and have yet to be determined. 

That is true in the two alternative ways that the Federal Court determined it could award interest, namely under paragraphs (a) or (b).  The structure of the Act is that there are two modes of calculation:  one, under (a) is applying a rate to a period.  The Act determines that that period shall commence from the cause of action arising.  The alternative way of computation is not to apply a rate to a period but to determine a lump sum.  Now, when (b) applies - and this is what the Full Court held and, we say, properly held - one makes a judgment as to what amount ought to be determined in all of the circumstances of the case.  It is an alternative mode of computation:  a rate for which the period is critical and therefore identification of the commencement of the period is critical, or alternatively, a lump sum for which there is no relevant period and for which, therefore, the identification of the commencement of the period, namely when the cause of action arose, is irrelevant. 

That is what the Full Court found and said there are these two ways of computing interest and we win on either of them.  Which one it should be and what the rate should be, what the time period should be or, alternatively, what the lump sum should be is not a matter which the court decided.  That was remitted to the trial judge to compute.  Those matters are still outstanding.  That will include any of the evidence of which my friend complains he did not have an opportunity to put before the court.  It is plain, we would say, that what the majority in the Full Court was doing was saying, “In the circumstances of the case it will be open to the trial judge to look at this conduct.  We know there was such conduct but we do not now assess or make findings of fact which are determinative of those matters.  That is a matter for the trial judge.”  So our first point on that is that the matters are premature.

BRENNAN CJ:   If the trial judge should find that there was no delay on the part of the Comptroller.

MR SPIGELMAN:   That is one of the circumstances in which he is entitled to give weight.  Another matter that he is entitled to give weight ‑ ‑ ‑

BRENNAN CJ:   Apart from weight, would that include the question of whether or not any interest should be awarded?

MR SPIGELMAN:   No, we would submit not.

BRENNAN CJ:   Yes, I see.

MR SPIGELMAN:   So there is a discretion.

BRENNAN CJ:   But the discretion is limited to quantum and interest must be awarded under either (a) or (b)?

MR SPIGELMAN:   We believe that that is the effect, and we would say that there are other matters, for example, obviously the fact that the Comptroller had the money for that period of time.  Now, it is a balancing exercise.

BRENNAN CJ:   Balancing or not, the proposition must be that there was a cause of action existing before the CTCO was made.

MR SPIGELMAN:   That is if (a) applies.

BRENNAN CJ:   Or if (b) applies.

MR SPIGELMAN:   No, (b) is a discretion.

BRENNAN CJ:   But how could any interest be awarded if the principal sum that was repayable only when the CTCO was made was repaid then?

MR SPIGELMAN:   It may be that the point your Honour put to me is entitled to determinative weight in all the circumstances of the case, but it is not the only circumstance entitled to weight.

BRENNAN CJ:   But I thought you conceded that there would have to be some award of interest.

MR SPIGELMAN:   Yes. I believe there has to be, because there are other factors to be taken into account than the one your Honour identified, because the discretion under (b) is not confined by a period.

BRENNAN CJ:   That means that you can get interest when money is paid promptly?

MR SPIGELMAN:   You can get interest in all of the circumstances of the case, even though there may have not been a legal obligation to repay money until some later point of time.

BRENNAN CJ:   Under paragraph (b)?

MR SPIGELMAN:   Under paragraph (b) by reason of the width of the discretion.  Now, it may be that in 99 cases out of 100 the discretion will be exercised in accordance with - the principle your Honour put to me will be entitled to determinative weight.

McHUGH J:   That seems to indicate that paragraph (b) itself might raise a special leave question in this particular case because one of the grounds upon which the Full Court decided to allow the (b) question to go forward was that in fairness taxpayers should receive some compensation in the form of an appropriate allowance for interest.

MR SPIGELMAN:   That is so.  And that the fairness was effectively saying, the discretion was unconfined by the reference to “cause of action” in (a), and they said that expressly.

McHUGH J:   That certainly seems to raise a fairly fundamental question.

MR SPIGELMAN:   We have addressed this in our written submissions and said that there are three alternative ways we can win.  What the applicant has to convince the Court of is that it wins on each of them because it is not a proper vehicle.

GUMMOW J:   I know.  He says if he wins on 269N that pulls the rug out from paragraph (a) and unjust enrichment and he says that leaves (b), but he is going to win on that anyway.

MR SPIGELMAN:   We say he is wrong in pulling the rug out from unjust enrichment.  It is not so confined.  It is true that we will have to raise that issue in a sense but what the majority in the Full Court did was to identify the entitlement to unjust enrichment on that basis but found it did not need to take that step and did not make an order based on it and said it was not doing so.

GUMMOW J:   Was it pleaded?

MR SPIGELMAN:   Yes, it was pleaded, fully argued and it is outlined, if ‑ ‑ ‑

GUMMOW J:   Yes, I have seen it.  I just wondered if it was something that emerged en route.

MR SPIGELMAN:   No, no, it was always an alternative, from the outset pleaded as an alternative.  I do not think my friend makes any complaint that that was not in issue.  Our proposition with respect to that third way of putting it is that it does not turn on 269N, but if there is a general law of unjust enrichment, what 269N means in terms of its deeming provision and retrospective operation will not determine the issue.  The issue will be determined whether in all the circumstances of the case restitution is appropriate.  Now, I know that raises some questions that may be of importance but in this case the crucial question ‑ ‑ ‑

GUMMOW J:   That is really another way of putting the construction of paragraph (b).

MR SPIGELMAN:   It may have the same consequences as paragraph (b) in the circumstances. 

BRENNAN CJ:   So unjust enrichment is discretionary too, is it?

MR SPIGELMAN:   It is not discretionary in the sense but it raises issues of the same character, if I might say, as those going to the discretion.  The same kinds of issues.  So, is there enrichment and is it unjust, are the same sorts of issues as one would weigh in the balance in the exercise of the discretion.

As we indicated in our submissions, there are three alternative ways, one of which we will probably have to raise by way of notice of contention, and the fact that there are alternatives is of significance on the special leave question.

McHUGH J:   I appreciate that, but could I just see if I understand your argument in relation to (b).  One of the reasons the Full Court gave for invoking (b) was that there had been an excessive delay in making the decision.  Now, that is an issue, if I understand the applicant correctly, was never really litigated.

MR SPIGELMAN:   We do not say that that is a fair reading of what their Honours did.

McHUGH J:   What is the relevant page?  What about 101, line 16:

A decision excessively delayed is a bad decision.

That seems to imply that this was excessively delayed.

MR SPIGELMAN:   That is a matter which will be decided by the trial judge.  What line was that, your Honour?

McHUGH J:   Line 16.

MR SPIGELMAN:   Yes.

The fact that nearly seven years.....is a material factor to be taken into account -

and so it is.  They are not saying we are taking into account; they are saying that is something that has to be taken into account.  This occurs in the middle of the passage which commences at pages 96 and 97.  Perhaps the clearest words are at 97 line 50:

In the exercise of the discretion under this limb, it would be legitimate to take into account -

That is where this reasoning commences.

McHUGH J:   I know, but if you look at line 19, after talking about excessive delay, the majority says:

The fact that nearly seven years passed here before the CTCO was (properly) made is a material factor to be taken into account ‑ ‑ ‑

MR SPIGELMAN:   Yes, and it will be.  That is not a finding of fact that we would submit is binding on the trial judge, namely these are matters ‑ ‑ ‑

McHUGH J:   It may not be, but on the other hand arguably it is not a factor that can be taken into account, that is the mere fact that there were seven years delay.

MR SPIGELMAN:   I am sorry, there is no doubt whatsoever that as a matter of law they have found that in the exercise of discretion these kinds of circumstances, if I might say the conduct of the Comptroller, are matters that can be taken into account as a matter of law by the trial judge when he comes to assess interest under paragraph (b) expressly.  Now, there is no doubt that is a finding.  That is an important part of the reasoning of the majority and the fact that it is as a matter of law able to be taken into account is something that is binding on the trial judge when he comes to assess it.  The extent to which - and I am addressing the natural justice point ‑ that it is to be taken into account is something which the Commonwealth will have adequate opportunity to adduce evidence about.

There are three basic reasons for opposing special leave.  First, that it is limited to the Customs Act and, indeed, a provision of the Customs Act which has been repealed.  The new provision has different terms but to the same effect.  The new 269S does not use the word “deemed”, it used the words “taken to have come into force”.  Now that may not be a distinction of substance but it is a different provision.  They are a different verbal formula.  My friend suggested that it is of great significance because the Customs Act itself is of such wide application.  He says everybody who imported the goods will be entitled to the refund.  That may be so, but not everybody who is entitled to a refund will be entitled to interest on the refund, unless they have instituted proceedings prior to the payment, because that is as far as this case goes in terms of 51A. 

My friend did not address on The Medina Princess point but there is an earlier decision which says that even though you pay prior to judgment, you can still get interest under 51A and we say that is plainly right but it is important to note that it is only people who actually institute proceedings, not everybody who imported the commodities, who is entitled to interest.  Everyone is entitled to a refund but this case does not say that everyone is

entitled to sue for interest unless they sue before they get their refund.  This decision will have the wholly salutary effect of making the Comptroller pay the refunds promptly.

The second basis for special leave is the fact that the matter has been remitted and there are critical matters that remain outstanding.  The third is that we won on three alternative bases.  My friends have to satisfy the Court that on each of those bases there are both substantial matters of sufficient significance to warrant special leave and that the reasoning below is attended by sufficient doubt.  We submit that that, when one multiplies it by three, the three alternative ways we could have won below and, in fact, did win below, even though only two of them are reflected in the orders, we say there is of sufficient doubt for all three and all three do not raise substantial questions.

If your Honours please, they are our submissions.

BRENNAN CJ:   We need not trouble you, Mr Gageler.  Special leave will be granted in this case.

MR GAGELER:   If the Court pleases.

AT 10.12 AM THE MATTER WAS CONCLUDED