Dep Com of Taxation v Conley

[1999] HCATrans 48

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S167 of 1998

B e t w e e n -

THE DEPUTY COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA

Applicant

and

JOHN PATRICK CONLEY

First Respondent

AUSTRALIAN AIRCRAFT SALES (NSW) PTY LTD

Second Respondent

NATIONAL AUSTRALIA BANK

Third Respondent

Application for special leave to appeal

GLEESON CJ
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 MARCH 1999 AT 10.35 AM

Copyright in the High Court of Australia

MR D.H. BLOOM, QC:   If it please the Court, I appear with my learned friend, MR A.J. PAYNE, for the applicant.  (instructed by the Australian Government Solicitor)

MR R.A. CONTI, QC:   If it please the Court, I appear with MR D.K.L. RAPHAEL for the first and second respondents.  (instructed by Blake Dawson Waldron)

GLEESON CJ:   Mr Bloom and Mr Conti, there is a certificate from the Deputy Registrar of the Court to the effect that she has been informed by the third respondent, National Australia Bank Limited, that that respondent does not wish to be represented at the hearing of this application and will submit to any order of the Court save as to costs. 

McHUGH J:   May I put on the record that I hold shares in National Australia Bank, the third respondent.  I understand that has been communicated to both parties by the Registrar.

MR BLOOM:   It has, your Honour.

McHUGH J:   None of the parties have any objection?

MR BLOOM:   No objection at all.

GLEESON CJ:   Does the same apply to me, Mr Bloom?

MR BLOOM:   No objection to your Honour either.

GLEESON CJ:   Thank you.  I also own some shares in that company.

MR BLOOM:   If your Honour please, yes.

Your Honours, section 218 was described by Sir Harry Gibbs in Clyne’s Case as a section designed to confer exceptional powers on the Commissioner to facilitate the collection of tax.  It is anti-evasion section.  Such a section should not then, in our respectful submission, be read down by reference to a suggested practical difficulty for the recipient of the notice, one not applicable in this particular case but one which has, in any event, in our submissions, no adverse consequences for him anyway. 

Your Honours, the section has equivalents in a number of other statutes including the Bankruptcy legislation and Social Services legislation, Immigration legislation and a lot of Tax legislation.  The sole question in the case is whether the word “money” in section 218 includes money denominated in a foreign currency.  It is an important one even if one confines it to the Tax Act.  As your Honours will have seen, there was nearly $A9 billion worth of foreign currency deposits in Australia as at July last year and until amending legislation could be passed, the revenue is and will be at risk in relation to notices already out and in relation to its ability to send notices out - - -

GLEESON CJ:   Is amending legislation proposed?

MR BLOOM:   No, not so far as we are aware, your Honour, but that would be the necessary result if your Honours refuse special leave.  We would hope to persuade your Honours to grant special leave to avoid that result.

Your Honours, the relevant facts are short.  The taxpayer company had two US denominated accounts with the National Bank – US dollar denominated accounts.  The accounts were current accounts, the moneys in them payable on demand.  Those were payable on demand to the taxpayer at the time the Commissioner to whom tax was then due served his notices under section 218.

Could I take your Honours to the section briefly.  It is at application book 37 to 38.  Subsection (1) appears towards the bottom of page 37:

The Commissioner may at any time, or from time to time, by notice in writing…..require:

(a)  any person by whom any money is due or accruing or may become due –

Now, the Court in Clyne  said that “due” there means “due and payable”.  So:

any person by whom any money is due –

and payable –

or accruing or may become due

and payable –

to pay to the Commissioner, either forthwith upon the money becoming due

and payable –

or being held, or at or within a time specified in the notice (not being a time before the money becomes due or is held);

(c)  so much of the money as is sufficient to pay the amount due –

and in Clyne’s Case the Court said that means “whether or not payable”, “due” in that subparagraph –

by the taxpayer in respect of tax or, if the amount of the money is equal to or less than the amount due by the taxpayer in respect of tax, the amount of the money.

Now, it is our submission that that phrase “so much of the money as is sufficient to pay the amount due” is apt to allow for the mathematical exercise of conversion of US dollars, in this case, into Australian dollars.

Subsection (4), your Honours will note on that page, says that:

Any person making any payment in pursuance of this section shall be deemed to have been acting under the authority of the taxpayer and of all other persons concerned and is hereby indemnified in respect of such payment.

GLEESON CJ:   What was the practical difficulty that impressed the judges in the Federal Court?

MR BLOOM:   I will come to that in one moment, your Honour.  I just wanted to say this first, that all judges below agreed that on a literal interpretation the word “money” was sufficient to catch US dollar denominated currency or any other foreign current for that matter.  The practical difficulty emerges, if one goes to 42 and 43 of the application book – first, there are a couple of passages with which we have no difficulty:

Even if the Commissioner’s contention is correct, the Commissioner could not, by service of a notice under section 218, acquire any greater right as against the recipient of the notice than the relevant taxpayer had.  Where the obligation of the recipient to the taxpayer is denoted in a foreign currency, the Commissioner could only be entitled, as against the recipient, to payment in the currency in which the money is payable.  The obligation of the recipient could only be to pay to the Commissioner the amount of foreign currency.  So much follows from the language of –

a paragraph, and we agree with that.

If a notice under section 218 applies to money due to a taxpayer in a foreign currency, a recipient of a notice would be required to pay to the Commissioner the whole of or some part of the amount of that foreign currency due to the taxpayer.  The amount of foreign currency to be paid to the Commissioner would depend upon whether the amount of the foreign currency is greater than, equal to or less than the amount due by the relevant taxpayer in respect of tax.  If the amount of foreign currency is greater than the amount due by the taxpayer in respect of tax, the recipient would only be required to pay so much of the money denominated in foreign currency as is sufficient to pay the amount due in respect of tax.

We agree with all that.

Thus, a comparison must be made between an amount of money in a foreign currency on the one hand and an amount of tax due in Australian currency on the other hand.  A recipient of a notice would not know how much foreign currency was to be paid to the Commissioner until a calculation is made, based on some rate of exchange. 

And, again, we agree to that point.

However, the question would then arise as to the time at which that calculation is to be made.  One possibility is that it would be made at the time of receipt of the notice.  The only other possibility seems to be that the calculation would be made at the date of payment of the foreign currency.

Now, we say that that is where, with respect, they start to go wrong.  The only time one needs to make the calculation is at the date of payment.  One would only make that calculation at the date of receipt if that was also the date upon which payment had to be made because the moneys were then due and payable to the taxpayer.

If one goes over to 43 one sees what we refer to as “the error compounded”, with respect:

One consequence of the service of a notice under section 218, when money is not yet due by the recipient, is that, as from the time of service, the recipient is bound, as and when money becomes due and payable to the taxpayer, to pay some part of that money to the Commissioner.  A taxpayer is prevented thereafter from assigning money which is the subject of such a notice –

really, the debt that refers to money, “the subject of such a notice”.

Section 218 requires the recipient to pay to the Commissioner, when it becomes payable, some part of the money owing to the taxpayer at the date of service of the notice. 

Nothing is in section 218 about that, about any money owing at the date of service of the notice.  One is only concerned about money which will become due and payable to the taxpayer whence the obligation arises upon the recipient to make payment to the Commissioner.

The obligation attaches to the recipient on service of the notice, though it cannot be performed until a future date. 

That is correct.

The effect of imposing the obligation is to make it unlawful for the recipient, after service of the notice to pay the money to anyone but the Commissioner –

that, too, is correct.

Further, the service of a notice under section 218  has been held to create a charge over the debt due by the recipient to secure the amount due in respect of tax –

that, too, is correct but what is subjected to the charge, in reality, is the taxpayer’s chose in action not specific money here, for instance, of the debt or bank. 

As Justice Mason, as he then was, said in Clyne, “service of the notice is such as to create an infirmity or defect in the title of the taxpayer”.  So, it is in relation to the chose in action, not the moneys that the bank may or may not use to satisfy its obligations when those times arise.  If one then drops to line 34:

In so far as the service of a notice under s 218 creates, in favour of the Commissioner, a charge over money –

so they have now gone from the chose in action or the debt to money actually being held by the Bank and that is not, in our respectful submission, a correct jump -

that charge must attach at the time of service of the notice.  On one view, therefore, it section 218 applies to foreign currency, the recipient would be required to make a calculation of the Australian currency equivalent of the foreign currency at that time. 

And the question is, apart from doing so for its own reasons, why and what consequences would attach from its failure to make a calculation at that time?  The answer is really only one.  The taxpayer will not be entitled to the moneys, in this example, because they are payable in the future, until some future time.  When they become due and payable then, at that point, the Bank will work out how much of the foreign currency is necessary to discharge the Commissioner’s debt and then and only then will be in a position to pay the balance to the taxpayer.

So, the only person who might be possibly inconvenienced in the interim is the taxpayer and he can get over that inconvenience simply by paying his tax.  But there is no inconvenience whatsoever for the recipient of the notice, yet it was that inconvenience which was postulated and that was the inconvenience used to read down the words which the court suggested, literally, applied to the facts of this case.

Now, your Honours, there are examples of garnishee cases and your Honours know that in both Clyne and in Bloemen the High Court has said that section 218 is strikingly similar to the garnishee process but there are cases on garnishees – Roger v Whitely (1892) AC is one where a garnishee notice has attached the whole amount of an amount standing to the credit of an account pending determination of the exact amount needed to satisfy the garnishee in due course.  The same would apply with an account that had a variable interest rate because until the time that the amount was due and payable arose, one would not know exactly how much was standing to the credit.  That could be a real matter of significance, for instance, if interest rates were not the four and five per cent they are now but were 20 per cent that they were 10 years ago.

Your Honours, we would say that with a section such as this, a practical difficulty does not really amount to the sort of justification that the High Court said in Cooper Brookes is necessary as arbitrary or capricious result that would justify departing from the literal words of the section, given again its purpose and its importance and that, in any case, the supposed practical difficulty here, having no adverse consequences at all to the recipient, is not certainly enough in this case to justify such a reading down.

Your Honours, in our submission, special leave should, for those reasons, be granted, and can I tell the Court that the parties have agreed that if special leave were to be granted, the Commissioner would pay the costs of both parties in this Court.  If your Honours please.

GLEESON CJ:   Yes, Mr Conti.

MR CONTI:   Your Honours, we would start at one point earlier than my learned friend has taken you to and that is the point that Justice Davies started at first instance.  The starting point is a matter of statutory construction, when one is dealing with questions of enforcement in relation to foreign currency, what is the currency of account, what is the money of account, to put it another way, of the tax obligation?  As Justice Davies pointed out, section 20 of the Act makes it plain that the Commissioner must assess, in terms of Australian currency, and that the taxpayer must return, in terms of Australian currency.  It follows from that, Justice Davies said, that enforcement must be in terms of Australian currency and section 218 is a medium of enforcement. 

Your Honour, the Australian Taxation Office recognised that principle when it issued the subject notices because what it did is demand that the Bank pay in Australian currency and therefore convert the US dollars in the US dollar account.  It is to be remembered, incidentally, when it comes to matters of convenience, that although banks are always taken as the exemplification, this legislation applies to any person who, in a sense, is a debtor, contingently or actually of a taxpayer.  When my learned friend was taking your Honours to the section, he took you to Justice Emmett’s reproduction of all that his Honour thought was necessary to produce but it is not unimportant to look at subsection (6A) at the foot of page 4 of the application book which shows you the extent to which this legislation extends, namely, that it can apply, as it were, to remove the existence of a condition which is delaying payments so to render payment forthwith so long as the condition is consistent with the concept that a person has not got to, as it were, pay to the Commissioner money before he would have had to pay the money to the taxpayer.  But subsection (6A) needs to be taken into account.  But can I come back to that when it comes to questions of convenience.

So, your Honour, what Justice Davies said as a matter of construction, leaving aside questions of convenience, was there must be a coincidence between what is demanded and what is paid because the statute says that the sum which is paid operates in pro tanto payment or reduction of the tax debt.  The tax debt is Australian dollars.  The payment must be made in Australian dollars.  The demand is made in Australian dollars.  Therefore, if there is going to be this pro tanto satisfaction to make the legislation work, it cannot work in respect of foreign currency.

The garnishee situations are quite different, your Honours, because a person is protected against the kind of injustice that can occur if the Tax Office is right.  I will take your Honour to what Justice Davies explained in relation to the way garnishee proceedings in respect of foreign currency are, as it were, applied and supervised by the Court and that appears at page 8 of the application book which I will come to.

Can I just mention this particular limb, and leaving aside garnishee for the moment, because – and I might say this appeal is academic because the Commissioner has issued garnishee proceedings that are presently before the Court and, of course, the difference with garnishee proceedings, that no conversion is going to take place in respect of the foreign currency and therefore there is no potential loss that is going to be sustained by the taxpayer by virtue of that conversion and the payment of tax in advance.  The garnishee situation, as it were, holds the status quo of the foreign currency of the taxpayer until the outcome of the ultimate debt.

Your Honours, can I just come back to that in just one moment.  Can I just put to you the difficulty which we see ourselves facing.  It is true, as Mr Bloom said, the taxpayer can solve the problem by paying the tax debt.  If he has to realise the foreign currency and his currency is in American dollars, as it is, as my client has been an aircraft trader in international aircraft all his life and the aircraft industry operates in respect of US currency, that is the universal currency of the industry, if he converts his currency to pay his Australian tax debt now, and he ultimately succeeds in the proceedings - and we stress “ultimately” because the Commissioner took 12 months to answer our objection and disallow it, if he pays his debt now and he succeeds, what does he get back?  Australian dollars?  If the US currency has moved adversely to the Australian dollar in the meantime, he has lost.

We know from current litigation that is being defended in, I think, the Federal Court, that the Commissioner takes the view, “That’s bad luck for the taxpayer.”  So, apart from the inconvenient situation which has been pointed out by the Federal Court – and we respectfully submit the Federal Court reasoning is correct because what happens in relation to 218 is not what happens in relation to garnishee so as to protect the taxpayer, what happens in relation to garnishee appears at page 8 - - -

GLEESON CJ:   But how would you express the inconvenience?

MR CONTI:   There is two lots of inconveniences, your Honour.  First of all, there is the inconvenience to the taxpayer because he is put to the risk of an adverse move in the currency.

GLEESON CJ:   Yes, you have just explained that but what about the recipient of the - - -

MR CONTI:   In so far as the recipient is concerned, the recipient has to determine, because it has money, as it were, which is owed – it could be on a variety of accounts.  He might be a person who owes money to his builder.  There might be money owed in all sorts of various situations.  What the recipient has to work out is, “How am I going to, as it were, hold the status quo in my commercial relationship with my client pending the outcome of all this?  Pending the outcome of determining what is going to be the actual conversion rate?”, because the actual conversion rate, your Honours, arises by virtue of the fact that the Act – if I just take you to page 4 of the application book – there is this delay in ascertaining the conversion rate arises because we see in the legislation at - - -

GLEESON CJ:   You say it is common ground, is it, that the conversion rate has to be determined at the date of payment?

MR CONTI:   At the date of payment, that is so.  But, your Honour, meanwhile a charge operates.  What is the extent of the charge, because you are not going to know what is the ultimate amount to be paid until the date arrives?  Now, that could be many years down the track.  You see, if you look at page 4, the - - -

GLEESON CJ:   Why is that?

MR CONTI:   Your Honour, because the legislation provides that the money must be paid to the Commissioner “forthwith upon the money becoming due or being held or within a time specified in the notice”.  Your Honours, they are the words at 17 to 20:

either forthwith upon the money becoming due or being held, or at or within a time specified in the notice (not being a time before the money becomes due or is held) –

so one could have – money could be owed.  If I could take, for example, a purchaser under an instalment contract for the purchase of land, his obligation to pay his instalments to the vendor is not accelerated by virtue of receiving a 218 notice but if his obligation is to pay in US currency and he has to convert, then he is in the situation, “What do I, in terms, set aside to meet the ultimate sum due?”, because there is a charge operating by virtue of Clyne because of, as it were, the operation of the statutory provisions.  So, he is in the dilemma, “What sum is attached in terms of what is ultimately got to be paid?”  That is what the Full Court - - -

GLEESON CJ:   Where do we find the key part in the reasoning of the Full Court that dealt with this?

MR CONTI:   It is dealt also, your Honours, with by Justice Davies as well but the key part is first of all what is said by Justice Tamberlin and his reasoning commences at page 32 at line 26.  Perhaps at line 16 I should start:

In Clyne’s case, Mason J decided that the effect of the service of a s 218 notice was to prevent an assignment by the taxpayer of so much of the money held as was sufficient to pay the amount of tax due by the taxpayer.  He also indicated that, in his view, the sections operated to create a charge on that amount. 

Line 26:

If the expression “money” in s 218 is interpreted to include money held in foreign currency, significant uncertainty may arise as to the amount of that money which is affected by the notice consequent upon fluctuations in exchange rates from time to time.  As the past few years illustrate, rates of exchange can experience substantial volatility over a relatively short period of time.  For example, problems may arise in circumstances where money is held on a term deposit and that term has not expired at the time the s 218 notice is served.

His Honour is just laying a foundation there which I will come back to just in one moment which one can contrast with the circumstances in garnishee proceedings taking place under the supervision of the court. 

If you go back to page 8 where Lord Justice Denning is dealing with the question in a case of Choice Investments, the court laid down a procedure for the purposes of its supervision of garnishee proceedings relating to foreign currency which has operated as a convention ever since.  But, first of all, what occurs in the indented paragraph (1) is the attachment of the money and that is what Justice Tamberlin is talking about when he is talks about the charge operating.  His Honour says, “Well, the money is attached but from thereon in it is never going to get any more complex for the recipient of the notice because whatever the conversation rate is at the point of attachment, that is going to hold.  He is never going to pay more than that.”  His Honour proceeds there to set out this regime at page 8 which shows how, in the end, nothing more than the original sum attached is ever going to be the subject of the garnishee proceedings when the time or for crystallisation of obligation to pay arises.  Of course, that would be in a case of garnishee proceedings usually when the ultimate dispute between the parties in simple litigation arises.

Here, Justice Tamberlin is saying it is different here because it may well be that the sum is not going to be ascertained and one does not how much of that foreign currency one, as it were, has to keep away from the taxpayer, that is to say, how much has to be kept by the recipient, pending the ultimate crystallisation of ascertainment of the tax due.  It is no answer to say the taxpayer can overcome that problem by making payment of the tax immediately because there may be a variety of reasons why the taxpayer would want to oppose that course and seek some discretionary order, as it were, to hold the status quo from the Bankruptcy Court or whatever.

So, there is two critical inconveniences:  one on the recipient of the notice which was explained by Justice Davies and also by the members of the Full Court and agreed to unanimously and, as it were, has been glossed by my learned friend in his explanation and sought to be rationalised by saying, “Well, overcome the problem by paying it.”  But, more importantly, your Honours, there is the inconvenience to the taxpayer who is placed in the circumstance where it may well be at the end of the day, if he has paid in advance, what he gets back are not the US dollars equivalent that he had beforehand if there has been adverse movement in the currency. 

Your Honours, in any event, we say one can go even prior to any inconvenience argument and go back to the circumstance.  Australian currency is the currency of account.  If the Commissioner - - -

McHUGH J:   I was going to say to you, do you rely on the passage that appears at the bottom of page 11 and then over onto 12 into Justice Davies’ judgment where he says:

The Deputy Commissioner is seeking that the sums be converted into Australian currency and that the proceeds be paid to him.  In this circumstance, the Deputy Court of Taxation appears to be looking upon the sums standing to the credit…..not as money but assets or commodities which he considers should be sold and the value realised in Australian currency - - -

MR CONTI:   Yes.  Well, that is the ultimate conclusion.  If it is not foreign currency, for the reasons Justice Davies has explained, as a matter of interpretation, they are commodities and as his Honour indicates in his discussion of the cases, generally speaking the cases have said, in a

particular statutory context, it is true, foreign currency is money.  But there are statutory contexts where the foreign currency is a commodity and here, his Honour says, in the light of the statutory background, in the circumstance that there must be coincidence of the notice and what - - -

McHUGH J:   Section 20.

MR CONTI:   That is so.  Then we would respectfully submit that on all of those grounds the four decisions in the Federal Court below would not justify a grant of special leave.

GLEESON CJ:   Yes, Mr Bloom.

MR BLOOM:   Your Honour, on that last point, if any concession was made below, it was most certainly withdrawn in the Full Court and that is why the Full Court at page 42, in the passages to which I took your Honours, proceeded upon the basis that they were dealing with a case where the amount that was payable to the Commissioner would be paid in the currency of the account.  I can hand your Honours the relevant page of transcript where Mr Slater, who was appearing for the Commissioner below, dealt with that issue.  At the same time, if I could hand your Honours a copy of Bloemen’s Case because I want to take you to a short passage in that.

McHUGH J:   But given section 20 of the Act, it is not easy, is it, then regard section 218 as being concerned with money as an asset as opposed to Australian currency?

MR BLOOM:   Your Honour, the consequences that would flow from not giving it that interpretation are the consequences that would lead one to construe it in accordance with the Commissioner’s submissions and it is that reason that one would go to its literal meaning and say, having regard to the consequences in this case, are they so arbitrary or capricious as to justify moving from the literal meaning of the section?

McHUGH J:   I am not sure it is a question of consequences so much, as a question of what “money” means in the context of this Act and in the enforcement provisions of the Act.

MR BLOOM:   Certainly there is there section 20.  There is also regulation 20 which permits the Commissioner to accept payment of tax in any form, including property.  So, these are things which, on the - - -

McHUGH J:   Yes, but 218 is not directed at assets as such.

MR BLOOM:   No, it is not.  It is directed at money and upon the literal interpretation, as all judges have held to this point, money includes foreign currency.

McHUGH J:   Ordinarily it does, but it depends on the context.

MR BLOOM:   Can I just deal with the other points though that my learned friend, Mr Conti, has raised?  First of all, in Bloemen’s Case, which your Honours now have, page 375 of that, Justices Mason and Wilson said, at the bottom of that page, second sentence in the last paragraph:

They point to the fact that notwithstanding that the assessment may be under review or appeal pursuant to Pt V the tax assessed is payable and the Commissioner has access to the extensive powers prescribed in Pt VI, including the garnishee power in s 218.  It is true that Pt VI contains large powers to enable the recovery of tax; powers the exercise of which may make life uncomfortable both for the taxpayer and perhaps others who owe money to the taxpayer.  So much may be conceded –

All that is put against us is that this makes life uncomfortable really for the taxpayer.  It is said that it made life uncomfortable for the recipient but that does not give sufficient attention to the word “due” meaning “due and payable” in section 218(1)(a).  The recipient does not, your Honours, have to set aside anything when he receives the notice if the moneys are not due and payable by him then to the taxpayer.  He simply, when the time that the moneys become payable to the taxpayer arrive, pays the Commissioner instead.  That is when he does the exercise in mathematical conversion and that is the only difficulty for him, namely – the only inconvenience – to make a mathematical calculation.

As far as a problem for the taxpayer is concerned, well that seems to be a problem that arises from the fact that Australian currency and US currency in this case, and other currencies no doubt, differ in their rates of exchange but it must be a problem applicable to every single foreign taxpayer who has to pay a tax debt in this country and wants to argue with the Commissioner about getting it back, or, indeed, any other debt about which there is an argument where payment first has to occur and the moneys have to be repaid at a later time.

McHUGH J:   Mr Bloom, this is a question of statutory construction in relation to the Income Tax Act which this Court has said is basically the province of the Federal Court, subject to some exceptional cases, and there are arguments both ways.  You have four judges of the Federal Court all coming to the same conclusion.  Why should we grant special leave?

MR BLOOM:   For these reasons, your Honour:  first of all, every tax matter is a matter of statutory construction and of one statute but this is a case where the consequences of not giving a literal interpretation to the section are so grave for the revenue in relation to a section that is there to deal with tax evasion; not just avoidance but evasion.  As we have endeavoured to point out to the Court, the decision below is wrong.  So, those are the circumstances, with respect, which justify the matter coming to the High Court for a half a day so that that point may be determined properly and, indeed, it is our submission that determined properly, it will be determined in favour of the revenue and avoid the problem that has arisen and potentially will arise up to a point where amending legislation could be passed.  If your Honours please.

GLEESON CJ:   We will adjourn for a couple of minutes.

AT 11.06 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.06 AM:

GLEESON CJ:   This is an application for special leave to appeal against a unanimous decision of the Full Court of the Federal Court which in turn dismissed an appeal from a single judge of the Federal Court.  The Court is not persuaded that there are sufficient prospects of obtaining a reversal of those decisions in this Court to warrant the grant of special leave.  The application for special leave is refused.

Can you resist an order for costs?

MR BLOOM:   No, your Honour.

GLEESON CJ:   The applicant must pay the respondent’s costs of the application.

AT 11.09 AM THE MATTER WAS CONCLUDED