Forsyth v Deputy Commissioner of Taxation

[2006] HCATrans 521

[2006] HCATrans 521

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S543 of 2005

B e t w e e n -

ROSS FORSYTH

Appellant

and

DEPUTY COMMISSIONER OF TAXATION

Respondent

Summons for directions

GLEESON CJ

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 27 SEPTEMBER 2006, AT 9.32 AM

(Continued from 7/3/06)

Copyright in the High Court of Australia

MR R.L. HAMILTON:   May it please the Court, I appear with my learned friend, MS R.L. SEIDEN, for the appellant.  (instructed by Paul Bard Lawyers)

MR D.M.J. BENNETT, QC, Solicitor‑General of the Commonwealth of Australia:If the Court pleases, I appear for the respondent.  (instructed by Australian Government Solicitor)

MS R.A. PEPPER:   May it please the Court, I appear for the Attorney‑General for New South Wales intervening.  (instructed by Crown Solicitor for New South Wales)

HIS HONOUR:   Mr Hamilton, the current notice of appeal filed on 27 October last year, I think – just let me get my hands on that.  I think what led to the directions hearing on 7 March was that the appeal had been listed and then your side foreshadowed an application that would be made to the Full Court to amend the notice of appeal which in turn would have involved a grant of special leave on the proposed new grounds of appeal.  Was that the subject of your summons of 28 February 2006?

MR HAMILTON:   It was.

HIS HONOUR:   Just let me get hold of that.  Now, as I understand an exchange of correspondence that I have seen recently, you do not intend to proceed with that summons.

MR HAMILTON:   Yes, that is correct, your Honour.

HIS HONOUR:   Is that summons withdrawn?

MR HAMILTON:   Yes, we are content for it to be dismissed if that is the appropriate course.

HIS HONOUR:   Can I dismiss it or does that have to await ‑ ‑ ‑

MR BENNETT:   I think your Honour can, but I would seek that it be with costs.

HIS HONOUR:   We will come back to that question.  I just want to work out what is the proper formal procedure to follow to dispose of the matter.

MR BENNETT:   I have not checked the matter of power, but bearing in mind that a summons is dealt with by a single Justice, there would seem to be no reason why your Honour could not dismiss it by consent.

HIS HONOUR:   It is a summons for leave to amend – I guess what would have required a decision of the Full Court would have been a grant of special leave to appeal on that.

MR BENNETT:   Yes.

HIS HONOUR:   Anyway, is everybody content with the fact that I should, by consent, dismiss the summons?

MR BENNETT:   Subject to the question of costs, yes.

HIS HONOUR:   We will come back to that.

MR BENNETT:   Yes.

HIS HONOUR:   Very well, then, by consent, the application made by the applicant by a summons filed on 28 February 2006 is dismissed.  That makes it unnecessary for me to give any directions I think in relation to the hearing of the appeal, does it not?  The appeal will go ahead on the original notice of appeal.

MR BENNETT:   There are a number of minor issues, your Honour, which I wanted to raise.

HIS HONOUR:   All right.  Have the appeal books actually been prepared?

MR HAMILTON:   Yes, your Honour, they have.

HIS HONOUR:   On the basis of the original notice of appeal, I presume.  The parties know, do they, that we intend to hear the matter on 14 November?  Is it still a one‑day appeal?

MR BENNETT:   Yes, your Honour.

HIS HONOUR:   What were the matters that you wanted to raise, Mr Solicitor?

MR BENNETT:   Your Honour, there are four matters.  The first is that the parties have filed submissions, so the existing submissions should be treated as the parties’ submissions for the present appeal with perhaps leave to all parties to amend them if anyone thinks of improvements on the re‑preparation.

HIS HONOUR:   Are you happy with that, Mr Hamilton and Ms Pepper?

MR HAMILTON:   Yes, your Honour.

MS PEPPER:   Yes.

HIS HONOUR:   Yes.

MR BENNETT:   The second issue is the formalisation of New South Wales intervention.  We certainly take the view that they intervene as of right, even though the constitutional issue has been removed, and that they are entitled to be heard on the non‑constitutional issue, but there may be a question as to whether they wish for more abundant caution to seek leave and whether anything should be dealt with today in relation to that.

HIS HONOUR:   If there really is a question or a doubt about that, that would be a matter for the Full Court to handle, would it not, Ms Pepper?

MS PEPPER:   That is my view.

HIS HONOUR:   Commonly, people say that they assert a right to intervene, but in any event seek leave to intervene if they need leave, so we can leave that matter over to 14 November, if that suits you.

MS PEPPER:   Yes, that suits me, your Honour.

MR BENNETT:   Yes.  Your Honour, the third and fourth matters concern a notice of contention and a proposed notice of contention.  The existing notice of contention – there is one matter I noticed today which I felt it my duty to the Court to disclose to my learned friend and to your Honour.

HIS HONOUR:   Is this of 10 November 2005?

MR BENNETT:   Yes, your Honour, page 85.  It is a short point.

HIS HONOUR:   Yes.

MR BENNETT:   My only concern – I did not want time to be wasted on this at the hearing – is if your Honour looks at page 58 of the appeal book at paragraph 20 there is a sentence which suggests that the point may have been conceded.

HIS HONOUR:   Paragraph 20 is on page 59.

MR BENNETT:   Sorry, paragraph 16, line 20 on page 58.

HIS HONOUR:   Right.

MR BENNETT:   That point has not been taken against us by my learned friend in his submissions and I think that the true position is, on thinking about it, that what that was referring to was to dates.  In other words, all that was being said was it was common ground that as a matter of dates the proceedings were commenced after the amendment in the Supreme Court, so had they been commenced in the Supreme Court that set of rules would have been the relevant set of rules.  I think that is all that they mean and if that is all that they mean, there is no problem.  I just thought it should be disclosed in the hope that time is not wasted on it at the hearing. 

HIS HONOUR:   All right.  We certainly do not have power to amend Chief Justice Spigelman’s judgment.

MR BENNETT:   Yes.  I am having the transcript checked as well to see what was common ground on that issue, or related to that issue.  The other matter is this.  I seek leave to file a further notice of contention out of time to challenge paragraph 30 of the judgment on page 61.  That is a very short point which their Honours leave open in paragraph 33 as to the meaning of the word “reference”.

HIS HONOUR:   What is your attitude to that, Mr Hamilton?

MR HAMILTON:   We do not oppose that.

HIS HONOUR:   All right, you have that leave.

MR BENNETT:   Yes, perhaps I could do that within seven days, your Honour.

HIS HONOUR:   Yes.

MR BENNETT:   I do not know if your Honour wishes to lay down a timetable in relation to amendment of existing submissions.  We do not ask for one to be laid down as long as the parties simply have the leave if they need it.

HIS HONOUR:   No, I do not think that is necessary.

MR BENNETT:   Yes.  I would think the matter is still a one‑day matter, your Honour.  It is a fairly short point ‑ ‑ ‑

HIS HONOUR:   You will be the only State here, Ms Pepper.

MS PEPPER:   As far as I understand, that is correct.

HIS HONOUR:   All the other people are aware of what has gone on in the ‑ ‑ ‑

MR HAMILTON:   Yes, my solicitor has written to all the other Attorneys‑General.

HIS HONOUR:   All right.  Now, the only outstanding question is costs.  What do people say about that?

MR BENNETT:   Your Honour, we opposed the motion and ultimately time solved the problem because of the other decision, but it is not a large amount that is being talked about, no doubt.

HIS HONOUR:   Why should I not just say that costs of these directions hearings will be costs in the appeal?

MR BENNETT:   Your Honour, because the application for leave to amend was an application by one side which was opposed and which was ultimately withdrawn, but it is a matter for your Honour.

HIS HONOUR:   Are you happy with that, Mr Hamilton, that costs of these directions proceedings be costs in the appeal?

MR HAMILTON:   Yes, we are content with that.

HIS HONOUR:   That will mean that whoever loses the appeal will pay those costs.

MR HAMILTON:   Yes.

HIS HONOUR:   Very well, I will make the order that costs of the directions hearing be costs in the appeal.

MR BENNETT:   That should not, of course, your Honour, we would submit, include costs of the summons that has been withdrawn.  If we are successful, we should not have to pay for their summons to amend which was withdrawn if we lose the appeal.

HIS HONOUR:   What is the order that you seek?

MR BENNETT:   Perhaps the other possible order is – I think the phrase was “respondent’s costs in the appeal” which means that if we win we get them and if we lose no one gets them.

HIS HONOUR:   Costs of the directions hearings will be costs in the appeal.

MR BENNETT:   If your Honour pleases.

HIS HONOUR:   There is a limit to the extent to which the wheels of justice can grind fine.  All right then, the matter will proceed on 14 November.

AT 9.45 AM THE MATTER WAS CONCLUDED