Kimberly-Clark Australia P/L v Commissioner of Taxation - [1994] FCA 173

KIMBERLY-CLARK AUSTRALIA PTY LIMITED v. COMMISSIONER OF TAXATION
Nos. NG911 and 915 of 1992
FED No. 173/94
Number of pages - 4
Sales Tax
(1994) 94 ATC 4203
(1994) Aust Sales Tax Cases 85-184

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
HILL J

CATCHWORDS

Sales Tax - application for extension of time within which to lodge request for reference of an objection decision of the Commissioner of Taxation to the Court - refund decision notified prior to commencement of Taxation Laws Amendment Act (No 3) 1991 - whether Court has power to extend time.

Sales Tax Assessment Act (No 1) (1930) (Cth): ss.42, 42B.

Taxation Laws Amendment Act (No 3) 1991 (Cth): ss.113, 114, 116.

Rodway v The Queen (1989-1990) 169 CLR 515; followed.

Maxwell v Murphy (1956-1957) 96 CLR 261; followed.

Colonial Sugar Refining Co Limited v Irving (1905) AC 369, followed.

Pettigrew v Federal Commissioner of Taxation (1990) 90 ATC 4124; followed.

Lighthouse Philatelics Pty Limited v Commissioner of Taxation (1991) 32 FCR 148; followed.

HEARING

SYDNEY, 17 March 1994
#DATE 13:4:1994

Counsel and Solicitors for Applicant: SJ McMillan instructed by

AJ Law and Co

Solicitors for Respondent: Australian Government Solicitor

ORDER

THE COURT ORDERS THAT:

(1) The time within which the applicant might lodge the request to refer the objection decision to this Court be extended until 4.30pm on 20 April 1994.

(2) The costs of the application be borne by the

applicant.

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

JUDGE1

HILL J On 23 August 1988 Kimberly-Clark Australia Pty Limited ("the applicant") applied to the respondent Commissioner of Taxation ("the Commissioner") for a refund of sales tax paid by it, inter alia, on toilet and facial tissues which the applicant considered were taxable at the rate of 10% rather than at the rate of 20% which it had paid. The application was one of a number of claims for a refund made by the applicant.

The applicant was motivated to make the claim by a decision of Yeldham J of the Supreme Court of New South Wales in Kentucky Fried Chicken Pty Limited v Federal Commissioner of Taxation (1986) 86 ATC 4701, such decision being upheld on appeal: Federal Commissioner of Taxation v Kentucky Fried Chicken Pty Limited (1988) 88 ATC 4363.
The Commissioner refused the refund and the applicant objected on 28 October 1988. The objection was allowed in part, so far as it related to goods other than facial and toilet tissues and a product known as "Jumbo Roll", by letter dated 23 July 1991. The applicant thereupon became entitled to request that the objection decision be referred either to the Administrative Appeals Tribunal or to the Court within the period of 60 days from the date of the notification being served on it. The applicant, however, did not make a request within the relevant period.
The applicant's delay appears to have been caused…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kimberly-Clark Australia P/L v Commissioner of Taxation

Details

AGLC: Kimberly-Clark Australia P/L v. Commissioner of Taxation [1994] FCA 173 ((1994) 94 ATC 4203)
Case: [1994] FCA 173
Decision Date: 13 APRIL 1994

CaseChat Overview and Summary

Kimberly-Clark Australia P/L sought an extension of time to lodge a request for reference of an objection decision made by the Commissioner of Taxation, relating to sales tax, to the Court. The dispute arose as the applicant's refund decision was notified prior to the commencement of the Taxation Laws Amendment Act (No 3) 1991, which changed the timelines for such requests. The Court was tasked with determining whether it had the jurisdiction to extend the time limit for lodging the request under these circumstances.

The court considered whether the legal framework, particularly the amended provisions, permitted an extension of time for lodging a request for reference in cases where the refund decision was notified before the commencement of the new legislation. The Court had to assess whether the statutory changes, which imposed a strict time frame for making such requests, could be overridden by judicial discretion to grant an extension. The central issue was whether the Court's power to extend time was constrained by the statutory changes introduced by the 1991 Act.

In reaching its decision, the Court examined the statutory language and legislative intent behind the 1991 amendments. It concluded that the statutory changes did not expressly preclude the Court from extending the time for lodging a request for reference in appropriate circumstances. The Court found that, while the amended provisions imposed strict deadlines, they did not remove the inherent jurisdiction of the Court to extend time where justice required it. Consequently, the Court determined that it had the power to extend the time for the applicant to lodge its request for reference, provided it was satisfied that the extension was warranted.

The Court ordered that the time within which Kimberly-Clark Australia P/L could lodge its request to refer the objection decision to the Court be extended until 4.30pm on 20 April 1994. Additionally, the Court ruled that the costs of the application be borne by the applicant.

Orders

Orders of the court

THE COURT ORDERS THAT:

(1) The time within which the applicant might lodge the request to refer the objection decision to this Court be extended until 4.30pm on 20 April 1994.

(2) The costs of the application be borne by the

applicant.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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