Kodak (Australasia) Pty Limited v The Commonwealth of Australia & Anor; Commonwealth of Australia & Anor v Genex Corporation Pty Ltd

[1991] HCATrans 277

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney Nos S2, S3 and S4 of 1991

B e t w e e n -

KODAK (AUSTRALASIA) PTY LIMITED

Applicant

and

THE COMMONWEALTH OF AUSTRALIA

THK~COMMISSIONER OF TAXATLON

Respondents

Office of the Registry

Sydney No S86 of 1991

B e t w e e n -

THE COMMONWEALTH OF AUSTRALIA

THE COMMISSIONER OF TAXATION

Applicants

Kodak(2)	1	4/10/91
BRENNAN J DAWSON J TOOHEY J

and

GENEX CORPORATION PTY LTD,

RABBIT PHOTO (SA) PTY LTD and

RABBIT PHOTO (WA) PTY LTD

Respondents

Applications for special leave

to appeal

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 4 OCTOBER 1991, AT 9.30 AM

Copyright in the High Court of Australia

MR D.M.J. BENNETT, OC:  May it please the Court, in the

first of these matters I appear with my learned

friend, MR B.J. SULLIVAN, for the applicant.

(instructed by Mallesons Stephen Jaques)

MR A.H. SLATER: If it please the Court, in the first matter

I appear for the respondent and in the second

matter for the applicant. (instructed by the

Australian Government Solicitor)

MR B.J. SULLIVAN:  May it please the Court, in the second

matter I appear for the respondent. (instructed by

Blake Dawson Waldron)

BRENNAN J:  What is the situation in these matters,

gentlemen?

MR BENNETT:  Your Honour, in the first matter we seek

special leave to appeal.	I understand it is not
opposed.	Your Honour recalls this matter was

argued fully. At the time, the Court took the view

that because of the pendency of the other matter in

the Full Federal Court that it ought to stand the
matter over generally with liberty to restore.	It
has now been restored pursuant to that liberty.

The matters have gone opposite ways and although

the judgments have different emphases, they are, we

would submit - and I can put to Your Honours, if

necessary - inconsistent on a major point and it is

a point of importance for the reasons I adumbrated

before.

I appreciate the Court is not constituted in

the same way. I do not know if Your Honour wishes

me to go through - - -

BRENNAN J:  We really need to know what the attitude of the

parties is at this stage, Mr Bennett.

Kodak(2) 2 4/10/91

MR BENNETT: If Your Honour pleases.

BRENNAN J:	Mr Slater?
MR SLATER:	Your Honour, in the first matter we do not

oppose the grant of special leave. In the second

matter, we seek it, and I understand from my friend

that he does not oppose it.

MR SULLIVAN:  Your Honours, in the second matter special

leave is not opposed.

BRENNAN J: Are there any issues which are distinct in one

matter from the other?

MR BENNETT:  The answer is yes and no, Your Honour. The

factual basis of the two matters is identical. The

decisions emphasize different submissions and come

to different decisions on different submissions on

different provisions of the Act. But the ultimate

question is substantially the same.

BRENNAN J: There are no issues of fact which will arise in

one case that will not necessarily fall for

consideration in the other?

MR BENNETT:	No issues of fact, Your Honour.
BRENNAN J:	Nor any issues of law?
MR BENNETT:	There are matters of law which were not argued

in one and not argued in the other on. constructions
of different sections but, as I understand it, all
questions are capable of arising in both matters

and the facts certainly are identical.

BRENNAN J:  Is there any reason why the two matters should

not be listed together for hearing - - -

MR BENNETT:  No, Your Honour, we had assumed that they would

be and we would so seek.

BRENNAN J:  Do you agree with that, Mr Slater?

MR SLATER: Yes, Your Honour.

BRENNAN J:  And you, Mr Sullivan?

MR SULLIVAN: Yes, Your Honour.

BRENNAN J: Special leave will be granted in both of these

matters.

AT 9.33 AM THE MATTER WAS ADJOURNED SINE DIE

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