Dinning v Commissioner of Taxation

[1999] FCA 1138

FEDERAL COURT OF AUSTRALIA

Dinning v Commissioner of Taxation [1999] FCA 1138

RUSSELL CRAIG DINNING, THOMAS JOSEPH RANIERE, PETER TANFANI CECIL, ROGER LEE DUNCAN, RONNIE JOE COLEMAN, ERIC LEE ROOTH, DARYL MARCELLUS PETERSEN, MAXWELL CHARLES KNIGHT

v COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA and FRANK LINSDELL

V 269 of 1999

RYAN J
MELBOURNE
13 AUGUST 1999

IN THE FEDERAL COURT OF AUSTRALIA
DISTRICT REGISTRY	V 269 of 1999

BETWEEN:

RUSSELL CRAIG DINNING, THOMAS JOSEPH RANIERE, PETER TANFANI CECIL, ROGER LEE DUNCAN, RONNIE JOE COLEMAN, ERIC LEE ROOTH, DARYL MARCELLUS PETERSEN, MAXWELL CHARLES KNIGHT
Applicants

AND:

COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA
First Respondent

and FRANK LINSDELL
Second Respondent

JUDGE:	RYAN J
DATE:	13 AUGUST 1999
PLACE:	MELBOURNE

THE COURT ORDERS THAT:

1.That in lieu of answering the question reserved by the order of Ryan J of 2 August 1999 for separate trial, it be declared that the employer of each of the applicants has at all material times been the company formerly registered as Ansett Transport Industries (Operations) Pty Ltd and now registered as Ansett Australia Ltd.

2.        That the application be adjourned for further directions to 30 September 1999.

3.That any motion on notice by the applicants be made returnable on       30 September and be filed and served together with any affidavits in support by 16 September 1999.

4.        That the costs of all parties of this day be reserved. 

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
DISTRICT REGISTRY	V 269 of 1999

BETWEEN:

RUSSELL CRAIG DINNING, THOMAS JOSEPH RANIERE, PETER TANFANI CECIL, ROGER LEE DUNCAN, RONNIE JOE COLEMAN, ERIC LEE ROOTH, DARYL MARCELLUS PETERSEN, MAXWELL CHARLES KNIGHT
Applicants

AND:

COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA
First Respondent

and FRANK LINSDELL
Second Respondent

JUDGE:	RYAN J
DATE:	13 AUGUST 1999
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. On 2 August 1999, I made the following order for the trial of a separate question in this application:

   "1.That the question of whether the notice under s 218 of the Income Tax Assessment Act 1936 to Ansett Australia Holdings Ltd ("Holdings") in respect of each of the applicants other than Thomas Joseph Raniere was effectively issued to Holdings as the employer of those applicants be heard and determined separately and before any of the questions and issues raised by the applicants' statement of contentions of fact and law. "

2. The background to the proceedings as a whole has been set out in my earlier reasons for judgment published on 11 June 1999.  The present reasons for judgment should be read in conjunction with those reasons. 

3. Notices under s 218 of the Act were issued to Ansett Australia Holdings Ltd in respect of each of the applicants other than Thomas Joseph Raniere.  The s 218 notice in respect of the first applicant, Mr Dinning, was dated 18 May 1999.  The operative part of that notice has been set out in my earlier reasons for judgment.  Mr Dinning has now sworn an affidavit on 4 August 1999 deposing that he was initially engaged on 10 December 1990 by Ansett Transport Industries (Operations) Pty Ltd. 

4. On 22 September 1994 the name of that company was changed to Ansett Australia Ltd, which has at all material times been the registered proprietor of the business name "Ansett Airlines of Australia".  Exhibited to that affidavit of Mr Dinning is a group certificate issued under the Act for the tax year 1 July 1998 to 30 June 1999, which, under the legend, "Name of Employer", recites "Ansett Australia Holdings Ltd (ACN 004 209 410)".  That company number, it seems, is the number under which the company now registered as Ansett Australia Ltd is registered.

5. Mr Dinning also exhibited to the same affidavit a copy of the Ansett Airlines of Australia Pilots Award 1989 ("the Award"), which contained the following clauses:

   "2.  Incidence. 
   This award shall be binding on Ansett Transport Industries (Operations) Pty Ltd in respect of its Ansett Airlines of Australia division for the benefit of all pilots employed in that division in the classifications covered by the award."

6. Then, in cl 5 under the heading "Contract of Employment", the Award provided in subparagraph (1):

   "Employment will be in Ansett Airlines of Australia unless otherwise agreed."

7. Clause 20 of the Award provided, under the heading "Length of Service":

   "Prior service with Ansett Transport Industries (Operations) Pty Ltd may at the discretion of the company be taken into account in determining length of service."

8. Mr Dinning had sworn an affidavit in earlier proceedings against the Commissioner in this Court in which he deposed that his employer was Ansett Australia Holdings Ltd.  However, in his latest tax return he has identified his employer merely as "Ansett Australia".  A similar state of affairs is disclosed, with some minor differences, by affidavits filed by the remaining applicants other than Mr Raniere and Mr Cecil.  All of those applicants, other than Mr Dinning, have filed tax returns identifying Ansett Australia Holdings Ltd as their employer. 

9. As I indicated in the course of submissions this morning, the question of who or which company is the employer of a given person is a question of law to be resolved in the light of the relevant facts.  Often, as in this case, some of those facts tend in different directions. 

10. In the present case I am satisfied, in the light of the whole of the evidence, that the employer of each of the applicants has at all material times been the company formerly registered as Ansett Transport Industries (Operations) Pty Ltd, the name of which was changed in September 1994 to Ansett Australia Ltd. 

11. In lieu of answering the question reserved for separate trial today, I shall make a declaration accordingly. 

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RYAN.

Associate:

Dated:             13 August 1999

Counsel for the Applicant:	Mr D Fitzgibbon
Solicitor for the Applicant:	Waters O'Brien
Counsel for the Respondent:	Ms A Richards QC with Mr S Sharpley
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	13 August 1999
Date of Judgment:	13 August 1999