On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation

[2010] FCA 255

FEDERAL COURT OF AUSTRALIA

On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation [2010] FCA 255

Citation:		On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation [2010] FCA 255
Parties:		ON CALL INTERPRETERS AND TRANSLATORS AGENCY PTY LTD (ACN 006 272 760) v COMMISSIONER OF TAXATION
File number(s):		VID 409 of 2009
Judge:		BROMBERG J
Date of judgment:		16 February 2010
Legislation:		Superannuation Guarantee (Administration) Act 1992
Cases cited:		Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
Date of hearing:	16 February 2010
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	14
Counsel for the Applicant:	Ms F O'Brien SC
Solicitor for the Applicant:	McNab Lawyers
Counsel for the Respondent:	Mr P Sest
Solicitor for the Respondent:	Maddocks Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 409 of 2009

BETWEEN:	ON CALL INTERPRETERS AND TRANSLATORS AGENCY PTY LTD (ACN 006 272 760) Applicant
AND:	COMMISSIONER OF TAXATION Respondent

JUDGE:	BROMBERG J
DATE OF ORDER:	16 FEBRUARY 2010
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The applicant’s notice of motion dated 12 February 2010 is dismissed.

2.The applicant pay the respondent’s costs of and incidental to the notice of motion.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 409 of 2009

BETWEEN:	ON CALL INTERPRETERS AND TRANSLATORS AGENCY PTY LTD (ACN 006 272 760) Applicant
AND:	COMMISSIONER OF TAXATION Respondent

JUDGE:	BROMBERG J
DATE:	16 FEBRUARY 2010
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This matter is listed to be heard for 5 days, commencing 1 March 2010.  By notice of motion dated 12 February 2010, the applicant seeks an order vacating the hearing. 

2. In the proceeding, the applicant appeals against an objection decision which is described in the application as follows:

   The decision of the respondent, dated 6 April 2009, to disallow in full the applicant’s objection dated 13 May 2008 against notices of amended superannuation guarantee charge assessments and superannuation guarantee default assessments dated 14 March 2008.

   The application then goes on to identify the periods of the assessments in question.  They relate to periods going back to 2003. 

3. It seems that the primary issue to be determined in the proceeding is whether the applicant, an interpreter and translator agency, is liable to pay a superannuation guarantee surcharge in respect of a translating or interpretating service which, it says, is contracted by it for the use of its clients. The applicant contends that the providers of interpreting and translating services used by it are not its common law employees, or deemed employees, under s 12 of the Superannuation Guarantee (Administration) Act1992 (“the Act”).  The applicant says, therefore, that it is not liable to pay a superannuation charge in addition to the fees paid by it to the persons it says are contracted by it to provide interpreting services. 

4. In support of its notice of motion to vacate the hearing, the applicant relies upon the fact that in another proceeding before a Full Court of this court - Roy Morgan Research Proprietary Limited v The Australian Taxation Office - Roy Morgan Research has recently given a notice of a constitutional matter. Evidence is before me that in the Roy Morgan Research proceeding, the applicant intends to challenge the constitutionality of the superannuation guarantee charge made under the Act.

5. The gist of the constitutional argument is that the superannuation guarantee charge is not a tax because it is not imposed for public purposes and is therefore unconstitutional. The applicant submits that if Roy Morgan is successful, the case for the assessment against it made under the Act will fall away and the continuance of this proceeding will be unnecessary. The respondent Commissioner opposes the notice of motion. It put before me evidence in relation to related proceedings before the Administrative Appeals Tribunal in which, on a number of occasions, the applicant has sought the vacation of hearings. I have placed little reliance on that material.

6. Evidence is also before me as to the applicant’s current outstanding and unpaid liability with respect to superannuation guarantee contributions as at 5 February 2010, including penalties and interests, totalling over $4.3 million.  I was informed that there are over 100, perhaps 200 persons who, if the Commissioner is correct in its assessments, are owed unpaid superannuation contributions by the applicant. 

7. In relation to case management considerations, I note that the application in this matter was filed on 2 June 2009.  It was originally listed for hearing on 2 November 2009.  It was not ready, and was re-listed for 12 April 2010.  The parties then requested the Court to list the matter earlier if possible.  The primary reason given was that the applicant would be subject to greater penalties should there be delay and should it lose its application in this proceeding.  The Court accommodated that request and listed the matter for hearing.

8. In doing so, the Court has precluded those dates being available to other litigants, and it is highly unlikely that those dates, given their proximity, can now accommodate other demands upon the Court to list matters for trial.  That involves inefficiencies and a potential waste of Court resources. 

9. The High Court’s decision in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 makes it clear that case management considerations and the proper use of court resources (including the interests of litigants generally in the efficient workings of the court) are germane to the exercise of my discretion in an application such as this. I refer to and rely in particular upon the decision of French CJ at [5], [6], [30], and [35], and the decision of Gummow, Hayne, Crennan, Kiefel, and Bell JJ at [92] to [103], and also at [111] to [113].

10. The case management considerations I have referred to weigh against the vacation of the hearing.  I am also concerned about the prejudice that a delay will inevitably cause to the many persons who, if the Commissioner is correct, are owed very substantial sums of money. 

11. It is obvious, given the nature of the constitutional challenge and the importance generally of the Act, that there can be no certainty that the constitutional issue will be resolved to finality by the Full Court of this Court should Roy Morgan Research succeed in its challenge. The possible delay, given the prospect of an appeal to the High Court, may be extensive.

12. Furthermore, as the respondent points out, there is no certainty that the constitutional issue will, in fact, be dealt with by the Full Court in the Roy Morgan Research proceeding.  The orders made by Ryan J in the Roy Morgan Research proceeding contemplate that the parties attend for mediation by a registrar not later than 5 March 2010, and those orders provisionally list the appeal for dates between 3 and 14 May 2010 on an estimated duration of 2 days.  It is quite possible, in those circumstances, that that proceeding (or at least some matters in dispute in that proceeding) will be resolved through mediation and will not be agitated before the Full Court.

13. In my view, as a general proposition a court should be slow to vacate a hearing, especially a proximate hearing, because a challenge to the validity of relevant legislation may be dealt with in another proceeding.  On balance, and weighing up all of the competing interests, this is not a case in which it is appropriate to depart from that general position. 

14. For those reasons, I decline the applicant’s application to have the trial vacated. 

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg .

Associate:

Dated:        22 March 2010