Pape v The Commissioner of Taxation of the Commonwealth of Australia

[2009] HCATrans 54

[2009] HCATrans 054

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S35 of 2009

B e t w e e n -

BRYAN REGINALD PAPE

Plaintiff

and

THE COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA

Defendant

Writ of Summons

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 MARCH 2009, AT 2.19 PM

Copyright in the High Court of Australia

MR B.R.PAPE:   May it please, your Honour, I appear on my own behalf in this matter and I am assisted by MR R.M. PEGG.  (instructed by Toomey Pegg Drevikovsky)

MR S.J. GAGELER SC, Solicitor‑General of the Commonwealth of Australia:   If the Court pleases, I appear with MR S.B. LLOYD, SC, for the Commission of Taxation and also for the Commonwealth of Australia.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   I have the writ of summons filed on 26 February with an appended statement of claim, the summons which brings us here this afternoon, filed on 9 March, supported by an affidavit of Mr Pegg and an affidavit by Dr Henry, the Treasury Secretary, filed on 12 March.  Mr Pegg’s affidavit was filed on the 9th and some proposed short minutes filed today and proposed special case under rule 27.08 filed today.  Can I ask you, Mr Solicitor, what is the appropriate appropriation statute relied on?

MR GAGELER:   The appropriation statute is the Taxation Administration Act section 16 which provides for a standing appropriation in respect of payments authorised to be paid under a taxation law defined in a way that includes this law.

HIS HONOUR:   So it is a standing appropriation?

MR GAGELER:   A standing appropriation, yes.

HIS HONOUR:   Thank you.  The statute is the Tax Bonus for Working Australians Act (No 2) 2009. Was there ever an Act No 1?

MR GAGELER:   Yes.

HIS HONOUR:   What did that do?

MR GAGELER:   I actually do not have it, your Honour, with me.

MR PAPE:   I think, if I may help, it was amended as a result of some difficulties getting the first act through the Senate and I think there was an adjustment in response to that.  It came back to the House of Representatives and went through as a second Act.

HIS HONOUR:   It went through as No 2?

MR PAPE:   Yes.

HIS HONOUR:   I see.  So No 1 was a Bill that did not become a statute, by the look of it.

MR PAPE:   That is right.

HIS HONOUR:   All right.  The Court will be able to take the matter as a Full Court as things stand at the moment and as they will stand, unless amended, at 2.15 on Monday, 30 March in Canberra.  That will also give us all of 31 March, if needed.  Now, what are the heads relied upon, Mr Solicitor, to support the statute itself?

MR GAGELER:   The appropriations power read with the incidental power - that is the primary way in which we will put it – the implied national power, the external affairs power, the trade and commerce power and the taxation power.

HIS HONOUR:   Is that in ascending order?

MR GAGELER:   In descending order, your Honour, probably, although I might tinker with the order, your Honour.

HIS HONOUR:   I will come back to that in a minute.  Does this involve consideration of the AAP Case?

MR GAGELER:   Yes, it does, and the Pharmaceutical Benefits Case.

HIS HONOUR: Yes. That was earlier. In (1975) 134 CLR 338.

MR GAGELER:   Yes.

HIS HONOUR:   All right.  The special case is a somewhat looser procedure than the stated case would be, is it not?

MR GAGELER:   It is, your Honour, yes.  A stated case always has that difficulty about inferences, your Honour.

HIS HONOUR:   All right.  Now, one matter, I suppose, that has to be noted is that if you are relying on the “nationhood power” you may agitate the States – and we may expect some interventions.  That feeds into the time factor I have been thinking about.

MR GAGELER:   We have provided for us to give further section 78B notices after we have put on a defence next week.

HIS HONOUR:   The defence, however, will be fairly succinct, will it not?

MR GAGELER:   Yes, it will.

HIS HONOUR:   Is there not some value in your written submissions going first, otherwise your opponent does not really know what shadows he might be punching.

MR GAGELER:   We are happy enough with that, your Honour.

HIS HONOUR:   Yes.  I know you do not bear any onus but it is just simply ‑ ‑ ‑

MR GAGELER:   We are happy to lay it all out, yes.

HIS HONOUR:   Yes, the sooner it is laid out the better, probably.

MR GAGELER:   Yes.

HIS HONOUR:   You reserve the right to dispute some of these matters put forward in the proposed special case of an international nature?

MR PAPE:   Yes, your Honour, it is only…..because we are not, until such time as we know how the argument is to be framed we are not sure whether any of these matters are indeed relevant.  That is the position there.  They may or may not be relevant.

HIS HONOUR:   Yes, all right.  Just pardon me a minute.  You have interveners down on or before 26 March which is the Thursday before ‑ ‑ ‑

MR GAGELER:   If your Honour is changing the order of the parties, perhaps ‑ ‑ ‑

HIS HONOUR:   My worry is that interveners tend to put submissions that neither side has put and the other side is stuck without ever having put any written submissions and we are catapulted into a hearing.

MR GAGELER:   It is a problem.  Yes, your Honour, there would seem to be no reason why the interveners should not put on their submissions at the same time as the plaintiff, given that we are going first.

HIS HONOUR: I think so. All right. Looking at the draft short minutes, there is no difficulty with orders 1, 2 or 3. Order 4 should read, “The special case be referred to the Full Court for hearing to commence on 30 March 2009 at 2.15 pm.” Order 5, “The second defendant file and serve notices under section 78B of the Judiciary Act 1903 (Cth) on or before 18 March 2009” and then 6 will read, “The defendants file and serve written submissions on or before 20 March 2009.” Order 7 will read, “The plaintiff

and interveners file and serve written submissions on or before 24 March 2009.”  Then 9 will become 8, “The defendants file and serve submissions in reply to the plaintiffs and any interveners on or before 27 March 2009.”  Order 10 will become 9, “The defendants file and serve submissions in reply to any interveners on or before 27 March 2009.”  Order 11 will become 10, “Liberty to apply to a Justice on one day’s notice” and 12 will become 11, “Costs of the summons filed 9 March 2009 be costs in the cause.”

Is there anything else needed?

MR GAGELER:   No.  I may have misheard your Honour but 10 ‑ ‑ ‑

HIS HONOUR:   I will go through it again in a minute.

MR GAGELER:   Order 10 which has become 9 I think should refer to the plaintiff.

HIS HONOUR:   I am sorry, yes.  You are quite right.  The orders are as follows:

1.The Commonwealth of Australia be joined as the second defendant.

2.The defendants file and serve their defence on or before 17 March 2009.

3.The second defendant prepare a special case under High Court Rules rule 27.08 in the form which has been agreed between the parties and file and serve the special case on or before 17 March 2009.

4.The special case be referred to the Full Court for hearing to commence on 30 March 2009 at 2.15 pm.

5.The second defendant file and service notices under section 78B of the Judiciary Act 1903 (Cth) on or before 18 March 2009.

6.The defendants file and serve written submissions on or before 20 March 2009.

7.The plaintiff and interveners file and serve written submissions on or before 24 March 2009.

8.The defendants file and serve submissions in reply to the plaintiffs and any interveners on or before 27 March 2009.

9.The plaintiff file and serve submissions in reply to any interveners on or before 27 March 2009.

10.Liberty to apply to a Justice on one day’s notice.

11.Costs of the summons filed on 9 March 2009 be costs in the cause.

Is there anything else?  I will now adjourn.

AT 2.33 PM THE MATTER WAS ADJOURNED