Osborne, R. v Commissioner of Taxation of the Commonwealth of Australia
[1995] FCA 345
•29 May 1995
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION No VG 374 of 1993
On appeal from the Taxation Appeals Division of the Administrative Appeals Tribunal
BETWEEN
RAY OSBORNE
Applicant-and-
COMMISSIONER OF TAXATION
OF THE COMMONWEALTH OF AUSTRALIA
Respondent
Coram: Olney J
Place: Melbourne
Date: 29 May 1995
MINUTE OF ORDERS
THE COURT ORDERS THAT:
The appeal be allowed.
The decision of the Administrative Appeals Tribunal made on 2 June 1992 be set aside.
The matter be remitted to the Administrative Appeals Tribunal for further hearing and determination according to law as expressed in the Court's reasons for judgment published on 29 May 1995.
The respondent pay the appellant's costs of the appeal including any reserved costs.
NOTE:Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION No VG 374 of 1993
On appeal from the Taxation Appeals Division of the Administrative Appeals Tribunal
BETWEEN
RAY OSBORNE
Applicant
-and-
COMMISSIONER OF TAXATION
OF THE COMMONWEALTH OF AUSTRALIA
Respondent
Coram: Olney J
Place: Melbourne
Date: 29 May 1995.
REASONS FOR JUDGMENT
This is an appeal on a question of law pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 from a decision whereby the Administrative Appeals Tribunal (the Tribunal) in part affirmed and in part varied objection decisions in relation to amended assessments of income tax payable by the applicant for the years of income ending 30 June 1984 to 30 June 1989 (inclusive).
THE OBJECTIONS AND REVIEW
Objections lodged by the applicant on 6 March 1991 in relation to the amended assessments were disallowed by the respondent on 4 March 1992. The applicant sought review of the objection decisions on 27 April 1992. The review applications were heard by the Tribunal on 5 November 1992 and 16 December 1992. On 2 June 1992 the Tribunal affirmed the objection decisions except in relation to the amount of additional tax assessed for the years 1986 to 1989 (inclusive) which it varied by reducing the culpability component from 45% to 25%.
The Tribunal held that the respondent was entitled to rely on s 260 of the Income Tax Assessment Act 1936 in relation to certain income derived in the 1984 year of income and upon Part IVB in respect of other income derived in 1984 - 1989 (inclusive).
FACTS FOUND BY THE TRIBUNAL
In 1967 the applicant became a registered valuer under the Valuation of Land Act 1960 (Vic). From 1967 to 1971 he was employed as a real estate salesman and from 1971 to 1976 he conducted a real estate agency business. In 1975 he formed Bellatrix Nominees Pty Ltd (Bellatrix) which undertook real estate development and share trading activities. Bellatrix was the trustee of the Osborne Family Trust No 1 (trust no 1) the general beneficiaries of which included the applicant's children and grandchildren and their spouses as well as the applicant and his spouse. The applicant was named as appointor for life under the trust deed. In 1976 the applicant went overseas and was absent for about 2 years. Upon his return in 1978 he was employed by a finance company selling property finance until 1980 when he left the finance
company and commenced practice as a registered valuer working from his home. In 1980 Bellatrix became the proprietor of the business name R & H Osborne Professional Services under which name the valuation work was carried on. The valuation practice was established in the financial year ending 30 June 1981. From 1980 income was derived from valuation fees.
The applicant had not derived income from the application of his professional qualifications as a valuer before 1980. A new source of income was created when the applicant's services produced income from property valuations under a corporate trustee/trust structure which until then had been used for property and share trading.
In late 1981 the applicant acquired Thornbridge Nominees Pty Ltd (Thornbridge) and established the Osborne Family Trust No 2 (trust no 2) of which Thornbridge was the trustee. The principal beneficiaries of trust no 2 were the applicant's children and the secondary beneficiaries included the descendants, wives, widows, parents and grandparents of the principal beneficiaries as well as other family relatives and trust no 1. The applicant was named as appointor during his lifetime.
In June 1983 Thornbridge became the registered proprietor of the business name Ray Osborne & Associates. From late 1983, valuation activities were carried on under the name Ray
Osborne & Associates. Registration of the name R & H Osborne Professional Services was allowed to lapse.
The applicant and his wife were the directors of both Bellatrix and Thornbridge.
In the 1984 financial year income from valuation fees amounting to $10,326 was returned for tax purposes by Bellatrix and income from valuation fees amounting to $37,594 was returned for tax purposes by Thornbridge. In subsequent years all income from valuation fees was returned for tax purposes by Thornbridge.
The applicant ceased doing valuation work in 1989. Some former clients were referred to another valuer. The valuation practice was not sold.
Following an audit of the applicant's affairs in respect of the years of income ending 30 June 1984 to 30 June 1989 (inclusive) the net income resulting from property valuation was excised from the returns of Bellatrix as trustee for trust no 1 and Thornbridge as trustee for trust no 2 and assigned to the applicant. Amended assessments were issued on 20 December 1990. The net amounts excised from the assessable income of Bellatrix and Thornbridge and added to the applicant's assessable income were:
Bellatrix $8295 Thornbridge $21567
" 16533
" 5665
" 18860
" 18942
" 42874
Additional (penalty) tax was also assessed.
The respondent relies upon s 260 of the Income Tax Assessment Act 1936 in respect of the income excised from Bellatrix's return, and upon Part IVA of the Act in respect of the income excised from Thornbridge's returns.
The Tribunal made no precise finding as to the role played by the applicant's wife in the family's business activities. There was conflicting evidence as to the extent of the wife's participation. However, the Tribunal found that neither the applicant nor his wife was paid a salary by either company in any of the relevant years.
THE VALUATION OF LAND ACT 1960 (Vic)
In the course of its reasons the Tribunal said:
There is no legal impediment to the use of a corporate entity and/or business name by a registered valuer. The Valuation of Land Act 1960 (Vic) recognises that a registered valuer may practice on his own account, as a member of a firm or as a director of a company.
With respect, this statement is not entirely correct.
The relevant provisions of the Valuation of Land Act are s 13E (2), (5) and (6) and s 13F. Those subsections provide as follows:
S 13E(1) ...
(2)Where, on or after the 1st day of January 1979, a person firm or corporation other than -
(a)a registered valuer;
(b)a firm of which at least one member is a registered valuer; or
(c)a declared corporation or a corporation of which at least one director is a registered valuer whose sole or principal employment is in the service of the corporation -
publicly takes or uses the title "land valuer", or in any other way holds himself or itself out as carrying on or being entitled to carry on the public practice of the profession of valuer, the person every member of the firm or every director of the corporation (as the case may be) shall be guilty of an offence against this Act.
...
(5)Where, on or after the 1st day of January 1979, a fee or reward is taken or demanded for the making of a valuation of land by a person firm or corporation other than -
(a)a registered valuer who makes the valuation or has the valuation made on his behalf by a registered valuer being an employé whose sole or principal employment is in his service;
(b)a firm on whose behalf the valuation is made by a registered valuer being a member of the firm or an employé of the firm whose sole or principal employment is in the service of the firm; or
(c)a corporation on whose behalf the valuation is made by a registered valuer being a director or other employé of the corporation whose sole or principal employment is in the service of the corporation -
the person every member of the firm or every director of the corporation (as the case may be) shall be guilty of an offence against this Act.
(6)Where, on or after the 1st day of January, 1979, a person makes a valuation of land on behalf of any person, knowing that a fee or reward has been taken or demanded, or is intended to be taken or demanded, for the making thereof in circumstances rendering any person guilty of an offence against sub-section (5), the person making the valuation shall be guilty of an offence against this Act.
...
13F. A person shall not be entitled to sue for recover or retain any amount by way of fee or reward for the making of a valuation of land in contravention of section 13E.
In the instant case the Tribunal did not address the question of whether the applicant's sole or principal employment was in the service of the particular company which at the relevant time carried on the public practice of the profession of valuer. Unless the applicant was so employed, the applicant
and his wife as directors of the relevant company would have been guilty of an offence for carrying on such practice (s 13E(2)), the applicant and his wife would have been guilty of an offence for the company taking fees for making valuations (s 13E(5)), the applicant would have been guilty of an offence for making valuations for which fees were taken or demanded (s 13E(6)) and no fees could have been sued for, recovered or retained by the companies (s 13F).
The nature of the applicant's income producing activities was referred to in the following passage from the Tribunal's reasons:
The taxpayer said he conducted the valuation practice from his residence except for a period which he thought was about one year in 1987/88 when he operated from rented premises. He was not a valuer full time, being also involved as an investor/trader in property, gold, livestock and futures trading activities which were spread across Bellatrix and Thornbridge.
It is difficult to know whether the opening words of this passage -
"The taxpayer said"
were intended to qualify both sentences or whether only the first sentence was as a reference to the applicant's evidence and the second sentence was a fact found by the Tribunal.
Taken in its context I think that the second sentence does indeed express a finding of fact. There was some variation between the evidence of the applicant and that of his wife as to when the valuation practice was conducted from rented premises. Whilst the applicant said it was for a period of about one year in 1987/88, his wife said that the applicant rented an office outside the home following a disagreement in 1983. The Tribunal made no finding on this question and it was of no relevance. However, it is quite clear from other findings made by the Tribunal that Bellatrix and Thornbridge were at relevant times also engaged in investment and trading activities. The statement that the applicant was not a valuer full time should therefore be treated as a finding to that effect. But such a finding does not address the specific issue raised by s 13E, namely whether the applicant's sole or principal employment was in the service of the company which at any particular time carried on the practice of valuer. I doubt very much that the word "employment" in s 13E(2)(c) and (so far as it relates to a director) in s 13E(5)(c), is intended to refer to the existence of a master and servant relationship between the company and the director but rather to the director's income producing activities. However, to enjoy the protection afforded by s 13E(2) and (5) it is necessary that those activities be the director's sole or principal activities. The Act does not require that the sole or principal employment of the director be in carrying on practice as a valuer but rather that his sole or principal employment be the service of the company.
The Tribunal was obviously aware of the provisions of the Valuation of Land Act, and although it did not refer to its provisions in detail, the fact that in its reasons it said that the Act "recognises that a registered valuer may practice on his own account, as a member of a firm or as a director of a company" is a clear indication that the Tribunal was aware of and familiar with the relevant provisions of the Act.
The finding that the applicant was a valuer part time is not inconsistent with his principal employment being in the service of the company in question. The Tribunal dealt with the case on the basis that the applicant's activities as a valuer were carried on by him lawfully as a director first of Bellatrix and later of Thornbridge.
THE NOTICE OF APPEAL
The notice of appeal sets out some 22 matters which are said to be questions of law raised by the appeal and 22 grounds of appeal which relate respectively to the questions of law.
Most of the 22 matters said to be questions of law are not questions of law at all but are merely debating points. Others, whilst of academic interest, have no relevance to the outcome of the appeal.
It can fairly be said that in relation to s 260, the appeal raises the question of whether on the facts found, the Tribunal erred in law in holding that the respondent was entitled to rely upon s 260 to assess the applicant as liable to tax on the net income from valuation fees returned by Bellatrix in the 1984 year of income. Such a question puts in issue questions as to the true construction of s 260 and the proper application of the section to the facts of the case. The question of law which the appeal raises in connection with Part IVA could be expressed in substantially similar terms.
Be that as it may, there is no question that the appeal does raise questions of law which were well understood by the respondent and which were argued at length on both sides.
THE TRIBUNAL'S CONCLUSIONS
It will be convenient to deal separately with the Tribunal's reasoning and conclusions in relation to the application of s 260 and of Part IVA.
(a) Section 260:
Section 260 provides:
Every contract, agreement, or arrangement made or entered into, orally or in writing, whether before or after the commencement of this Act, shall so far as it has or purports to have the purpose or effect of in any way, directly or indirectly -
(a)altering the incidence of any income tax;
(b)relieving any person from liability to pay any income tax or make any return;
(c)defeating, evading, or avoiding any duty or liability imposed on any person by this Act; or
(d)preventing the operation of this Act in any respect,
be absolutely void, as against the Commissioner, or in regard to any proceeding under this Act, but without prejudice to such validity as it may have in any other respect or for any other purpose.
(2)This section does not apply to any contract, agreement or arrangement made or entered into after 27 May 1981.
In addressing the operation of s 260 the Tribunal said:
In respect of the valuation income included in the return of (Bellatrix) for the 1984 year, it is necessary to determine whether there has been any contract agreement or arrangement made or entered
into at any time which has the purpose or effect as described in paras (a) to (d) of s 260.
Again, this statement is only partially correct. The initial inquiry so far as s 260 is concerned is whether any relevant contract agreement or arrangement had been made on or before 27 May 1981 not "at any time" as asserted by the Tribunal. The facts found by the Tribunal establish that the valuation practice was established in 1980 during the year of income ending 30 June 1981. It must necessarily be that it was established before 27 May 1981. Accordingly it must follow that the Tribunal's initial inquiry as to the application of s 260 in respect of income earned from valuation fees by Bellatrix was to determine whether there had been a contract agreement or arrangement (hereafter referred to simply as an arrangement) caught by s 260 at the time the valuation practice was established. The Tribunal's reasons indicate that was in fact the scope of its inquiry in this context. After quoting the well known passage from the judgment of Kitto J in Peate v Federal Commissioner of Taxation 111 CLR 443 at 469 the Tribunal continued:
The arrangement claimed by the Commissioner to be caught by s 260 was the splitting of income said to have flowed directly or predominately (sic) from the rendering of personal services by the taxpayer among beneficiaries of the No 1 trust.
The arrangement in the present case has to be inferred from the circumstances. ...
In Federal Commissioner of Taxation v Newton 96 CLR 578 Williams J at 630 cites with approval the following extract from Bell v Federal Commissioner of Taxation 87 CLR 548:
In Jaques v Federal Commissioner of Taxation (4) Isaacs J said of the word 'arrangement' that in this collocation it is the third in a descending series, and means an arrangement which is in the nature of a bargain but may not legally or formally amount to a contract or agreement. It must be remembered,
however, that the section is concerned only with contracts, agreements and arrangements which have an effect in law and accordingly are capable of statutory avoidance. With this in mind, it may be said that the word 'arrangement' is the third in a series which regards comprehensiveness is [sic] an ascending series, as to embrace all kinds of concerted action by which persons may arrange their affairs for a particular purpose or so as to produce a particular effect.
The splitting of the taxpayer's income for the purpose of tax avoidance, need not be the sole purpose of the assessment [sic, arrangement] for the purpose of s 260 as Gibbs CJ said in Gulland at 68:
If tax avoidance is one of the main purposes of the arrangement in the sense that it is not inessential or merely incidental, that is enough.
...
In the present case, the taxpayer had not derived income from the application of his professional qualification as a valuer until 1980. Here, a new source of income was created when the taxpayer's services produced income from property valuations under a corporate trustee/trust structure which until then had been used for property and share trading. While the taxpayer's circumstances do not amount to an antecedent transaction or situation as those expressions are used in the cases - for a review of the authorities on that topic see the discussion in Bunting per Beaumont, Gummow and Hill JJ - it does not follow that s 260 can have no operation in a case where a person arranges his affairs to split income for the first time which he would have otherwise derived but for the arrangement and upon which he had a liability for tax. In Gulland Gibbs CJ said at 73:
... there is nothing in s 260 that supports the view that section can apply only when there has been an antecedent transaction between parties. An arrangement will, for example, be within the section if it alters the incidence of income tax in a case in which the only relevant antecedent circumstance is that the taxpayer is in receipt of income.
On the facts in this matter, concepts of an antecedent transaction or situation are not applicable.
A further question for the Tribunal is whether the arrangement whereby the corporate/trust structure which derived the income from valuation services can be explained by reference to ordinary family and business arrangements. A test frequently applied is that expressed by Lord Denning in Newton & Others v Federal Commissioner of Taxation 98 CLR 2 at 8:
In order to bring the arrangement within the section you must be able to predicate - by looking at the overt acts by which it was implemented - that it was implemented in that particular way so as to avoid tax. If you cannot so predicate, but have to acknowledge that the transactions are capable of explanation by reference to ordinary business or family dealing, without necessarily being labelled as a means to avoid tax, then the arrangement does not come within the section.
The corporate trustee used by the applicant from when he commenced valuation work in 1980 had been the vehicle utilised by the taxpayer over a number of years for property and share trading and investing. The use of a corporate structure for those activities is common place. There is no legal impediment to the use of a corporate entity and/or business name by a registered valuer. The Valuation of Land Act 1960 (Vic) recognises that a registered valuer may
practice on his own account, as a member of a firm or as a director of a company. Nor does the use of a trust necessarily bear the stamp of tax avoidance: see Rippon per Heerey J and on appeal per Lockhart, Beaumont and Foster JJ (unreported judgment, 29 September 1992).
...
I accept that the use of a corporate vehicle can readily be explained as an ordinary business or family arrangement. However the question remains whether the income from valuations is properly characterised as business income as contended by the taxpayer or income from personal services.
In my view, the fees generated for valuation services were derived predominantly from the provision of personal services by the applicant. They were a product of his professional judgment, qualifications and skill in making property valuations.
The pertinent facts are that a company and trust structure in existence for many years and used in connection with the taxpayer's other business activities, was used for the purpose of his valuation practice. It was not a creation at the commencement of the valuation practice and while the absence of an antecedent transaction or situation as stated earlier is not conclusive, viewed objectively, the arrangement whereby income generated by the personal services of the taxpayer is diverted into a family trust, in my view suggests the paramount objective of the use of the trust structure is for income splitting purposes by the taxpayer. Section 260 has application because in my view, the arrangement taken as a whole bears the stamp of tax avoidance in that it was a main, not merely incidental, feature of the arrangement.
It appears from this passage that the Tribunal regarded the relevant "arrangement" for the purposes of s 260 to be the "diverting" into a family trust of "income generated by the personal services of the taxpayer".
Whilst it may be said that the valuation fees were generated by the personal services of the applicant in the sense that it was his standing as a registered valuer that enabled the fees to be earned, they were earned as a result of contractual arrangements made between Bellatrix and various clients. The Tribunal acknowledged that it was lawful for the business of a registered valuer to be carried on by a company. Bellatrix, had at all times both before and after 1980 carried on its business activities as trustee for trust no 1. The applicant at no time had any personal entitlement to any of the valuation fees paid to Bellatrix other than in accordance with the terms of the trust deed. Nor had the applicant at any antecedent time been employed as a valuer or conducted a business or practice whereby he had applied his professional skill as a valuer for the purpose of earning valuation fees. On the facts as found by the Tribunal the only "arrangement" the applicant made was, in his capacity as a director of Bellatrix, to contract on behalf of Bellatrix with various clients to provide valuations for reward. Neither Bellatrix nor trust no. 1 were set up for the purpose of "diverting" income derived from valuation fees. Both existed well before any such fees were derived. Bellatrix's income was already "diverted" to trust no. 1 well before any income was derived from valuation fees.
The dictum of Gibbs CJ from Gulland at p 73 of the report which was quoted by the Tribunal in the passage set out above is only one of many such statements to be found in the authorities and there can be no question that what his Honour said in Gulland fairly states the law on the question.
The Court has not been referred to any authority in which the provisions of s 260 have been applied in circumstances in which a professionally trained person has established a new source of income for the practice of his profession through a corporate structure in a manner which is both lawful and
commonplace and which does not offend the ethical practices of his profession.
The respondent's case fails the test expressed by Gibbs CJ in Gulland namely that the arrangement will be within s 260 "if it alters the incidence of income tax in a case in which the taxpayer is in receipt of income". Before 1980, the applicant had never been in receipt of income from the practice of his profession as a valuer either as an employee or in any other capacity. It is not the case that but for the "arrangement" the applicant would have had a liability for tax. There was no "diverting" of income to trust no. 1. At all times the income derived from the applicant's services as a registered valuer belonged to Bellatrix. Both before and after he commenced providing valuations for Bellatrix he was liable to be taxed on whatever distribution of income was made in his favour as a beneficiary of trust no. 1. The "arrangement" changed nothing so far as the applicant's liability for tax was concerned.
In my opinion the Tribunal has misapplied s 260. Its conclusion that s 260 operated so as to render income from valuation fees earned by Bellatrix in the 1984 year taxable in the applicant's hands was erroneous in law and should be set aside.
(b) Part IVA
Part IVA was inserted into the Income Tax Assessment Act in 1981. The Part applies to any scheme (as defined) that has been entered into or has been or is carried out or commenced to be carried out after 27 May 1981 where -
a)a taxpayer has obtained or would but for s 177F obtain a tax benefit in connection with the scheme, and
b)having regard to certain specified criteria, it would be concluded that a person who entered into or carried out the scheme did so for the purpose of enabling the taxpayer to obtain a tax benefit in connection with the scheme.
(s 177D).
For the purposes of Part IVA -
"scheme" means -
(a)any agreement, arrangement, understanding, promise or undertaking, whether express or implied and whether or not enforceable, or intended to be enforceable, by legal proceedings; and
(b)any scheme, plan, proposal, action, course of action or course of conduct.
(S 177A(1)).
A reference in Part IVA to a scheme being entered into or carried out for a particular purpose includes a reference to the scheme being entered into or carried out for 2 or more purposes of which the particular purpose is the dominant purpose (s 177A(5)).
Section 177C (1) provides:
177C(1)Subject to this section, a reference in this Part to the obtaining by a taxpayer of a tax benefit in connection with a scheme shall be read as a reference to -
(a)an amount not being included in the assessable income of the taxpayer of a year of income where that amount would have been included, or might reasonably be expected to have been included, in the assessable income of the taxpayer of that year of income if the scheme had not been entered into or carried out; or
(b)a deduction being allowable to the taxpayer in relation to a year of income where the whole or a part of that deduction would not have been allowable, or might reasonably be expected not to have been allowable, to the taxpayer in relation to that year of income if the scheme had not been entered into or carried out;
and, for the purposes of this Part, the amount of the tax benefit shall be taken to be -
(c)in a case to which paragraph (a) applies - the amount referred to in that paragraph; and
(d)in a case to which paragraph (b) applies - the amount of the whole of the deduction or of the part of the deduction, as the case may be, referred to in that paragraph.
Where a tax benefit has been obtained, or would but for s 177F be obtained, by a taxpayer in connection with a scheme, the Commissioner may, in the case of a tax benefit that is referable to an amount not being included in the assessable income of the taxpayer of a year of income, determine that the whole or part of that amount shall be included in the assessable income of the taxpayer for that year of income (s 177F(1)).
The Tribunal dealt with this aspect of the case on the basis that the arrangement whereby Thornbridge as trustee for trust no. 2 commenced to carry on the valuation business was a scheme whereby the appellant obtained a tax benefit and that the applicant entered into the scheme for the dominant purpose
of enabling the applicant to obtain such a benefit in connection with the scheme.
Once the position is established that the appellant was not, and had never been, liable to tax on the valuation income derived by Bellatrix as trustee for trust no 1, the Tribunal's approach to the scheme whereby Thornbridge took over the valuation side of Bellatrix's business is no longer appropriate. If there was a scheme in connection with which a tax benefit was obtained, it was the beneficiaries of trust no 1 who obtained the tax benefit, and assuming (but without deciding) that the scheme was entered into for the dominant purpose of obtaining such a benefit, the respondent could only resort to s 177F for the purpose of rendering the applicant liable to tax on the income in question if the applicant obtained a tax benefit. This raises the question posed by s 177C(1)(a) namely whether an amount was not included in the assessable income of the applicant for any relevant year of income where that amount would have been included, or might reasonably be expected to have been included, in the assessable income of the applicant for that year if the scheme had not been entered into or carried out. This was not an issue addressed by the Tribunal and accordingly no relevant findings of fact were made. The situation is somewhat analogous to that in Blackman v Federal Commissioner of Taxation 93 ATC 4538 where the Full Court of the Federal Court held that a failure by the Tribunal to make relevant findings of fact amounted to an error of law.
In the circumstances an error of law has been demonstrated in relation to the Tribunal's decision relating to the income excised from Thornbridge's returns and this aspect of the matter should be remitted to the Tribunal for further hearing and determination.
CONCLUSION
The conclusion I have reached in relation to the s 260 question means that it will be necessary for the respondent to issue a further amended assessment for the 1984 year of income but as the Part IVA question remains unresolved and may, when resolved, have a bearing upon the same year's assessment, it is appropriate that the orders that the Court should make on this appeal is to allow the appeal and order that the decision of the Tribunal be set aside and to direct that the matter be remitted to the Tribunal for further hearing and determination in accordance with law as expressed in these reasons.
The respondent should pay the applicant's costs of the appeal including any reserved costs.
I certify that this and the preceding 18 pages are a true copy of the Reasons for Judgment of the Honourable Justice Olney
Associate:
Dated:
Heard: 5 May 1995
Place: Melbourne
Judgment: 29 May 1995.
Appearances:
Dr J. Cassidy (instructed by Lewis Zylberman & Rostkies) appeared for the applicant.
Mr S. McLeish (instructed by Australian Government Solicitor) appeared for the respondent.
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