Premier Pools Pty Limited & Ors v Commissioner of Taxation for the Commonwealth of Australia

[1992] HCATrans 344

~

~ --~··:!!'

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S99 of 1992

B e t w e e n -

PREMIER POOLS PTY LIMITED

First Plaintiff

THE PARTIES NAMED IN THE

SCHEDULE HERETO

Further Plaintiffs

and

COMMISSIONER OF TAXATION FOR

THE COMMONWEALTH OF AUSTRALIA

Defendant

Directions hearing

McHUGH J

Premier 21 26/11/92

(In Chambers)	..:-
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON THURSDAY, 26 NOVEMBER 1992, AT 10.16 AM
(Continued from 29/10/92)
Copyright in the High Court of Australia

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl47 of 1992

B e t w e e n -

MUTUAL POOLS AND STAFF

PTY LIMITED

Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

Defendant

Directions hearing

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 26 NOVEMBER 1992, AT 10.16 AM

Copyright in the High Court of Australia --

MR G.A. FLICK:  May it please Your Honour, in the Mutual

Pools matter, I appear for the plaintiff.

(instructed by Roger Williams)

MR G. GRIFFITH, OC: Solicitor-General for the Commonwealth:

If Your Honour pleases, I appear with my learned friend, MR A.H. SLATER, in this matter.

Premier 22 26/11/92

Your Honour, there was the original matter of

Premier Pools that was adjourned to this day.

HIS HONOUR:  It is not listed, but the file is here in

Court.

MR GRIFFITH:  I assumed it would be listed, too,

Your Honour.	Can I announce my appearance in that
matter also.

HIS HONOUR: Yes.

MR FLICK:  And may I announce my appearance in that matter

as well, Your Honour.

MR GRIFFITH:	Your Honour, just reading the transcript of the last proceeding, perhaps by way of explanation
I could indicate that all the points made in the transcript seem to be well taken and the parties
have discussed the issue amicably between them and
reached the point, subject to Your Honour's acquiescence of the issues of difficulty which were
identified on the last occasion were satisfied, the
appropriate course would be to leave Premier Pools
as it is, as it were, and for Your Honour to state an agreed case on agreed facts with an agreed
question on the second action.

Your Honour, there is a slightly modified

question. Can I hand that to the Court.

HIS HONOUR:  Yes, I have just been handed a copy of it.

There is one matter that does still occasion me

concern and that is that it is not plain to me what

is the basis upon which the plaintiff would allege

that it was entitled to a refund of this amount

independently of the Refund Act. This is a

question that should be directed to Dr Flick.

Dr Flick, is it your case that by reason of the

facts and matters referred to in paragraphs 5 to 10

that the defendant is legally obliged to repay or

refund the said amount of $1522? .:

MR FLICK: Yes, Your Honour.

HIS HONOUR:  So that is the point upon which the case

stands. You have no other basis for it than that?

MR FLICK:	No.
HIS HONOUR:	I think a further paragraph should be put in

the case stated which could go in after 13 and

would be to this effect, I think:  "By reason of

the facts and matters referred to in paragraphs 5,
6, 7, 8, 9 and 10, the defendant is legally obliged to repay or refund" - whatever term you like to use

- "the said amount of $1522 to the plaintiff."

Premier 23 26/11/92

That makes plain that that is the basis upon which

you claim to have some property right in effect.

MR FLICK:  We have no objection to that addition,

Your Honour.

HIS HONOUR:  In addition, it seems to me that, although it

is in paragraph 15(b) and it is your allegation

that the Refund Act is invalid, it is not true to

say, is it, that the money has been "unlawfully

exacted". Is not your case more that the defendant

cannot validly enact legislation which has the

effect of depriving the plaintiff of its lawful
entitlement to the repayment of the said amount of

$1522 paid to the Commissioner of Taxation pursuant

to and in accordance with that paragraph 6

agreement.

MR FLICK:  We have no objection to making that alteration,

Your Honour.

HIS HONOUR:  Then I think in paragraph 15(b), in the second

line, if you delete all the words apart from

"depriving the Plaintiff", that is in the second

line, and the third and fourth lines as well, and

then after the word "Plaintiff" insert "of its
lawful entitlement to repayment of the said amount
of $1522 paid to the Commissioner of Taxation

pursuant to and in accordance with the agreement

referred to in paragraph 6".

MR FLICK:  Your Honour, neither of those suggested

alterations meets with any resistance by the

plaintiff.

HIS HONOUR:  I think it makes the case quite concrete. It

might also, in paragraph 15(c), so that it would

read: "the Refund Act purports to authorize the

acquisition of", insert "the", "the property", and

then after "property" "of the plaintiff".

MR FLICK: Certainly, Your Honour. None of those three

create resistance. -

HIS HONOUR:	Mr Solicitor, do you have - - -
MR GRIFFITH:	Your Honour, we have no objection to "more

concrete", but we do to concrete boots. You will

recollect in the other action there were many

issues between the parties and this indicates that

great progress has been made in that the agreement

has been admitted and that there is no defence

alleged of want of authority or any other issue

such as that.

HIS HONOUR:	No, I appreciate that.
Premier	26/11/92
MR GRIFFITH:	But what the agreed facts do not do is say

that the payment was made pursuant to the

agreement. Your Honour, we say it was made because

of the terms of the Act required it.

HIS HONOUR:  I appreciate that, and this case stated is

taken from the statement of claim. It occurred to

me that there was no reason why you should not

demur rather than - - -

MR GRIFFITH:  Yes, Your Honour, the only reason I do not do

that is that in the past I have been criticized for

closing constitutional facts and I wish never to do

that.

HIS HONOUR: 

I appreciate, but I mean there is no difference

here. This is just a repetition of the statement
of claim, in effect.

MR GRIFFITH: But, Your Honour, the convenience of having it

in the form of a case stated, (a), it is all there;

(b), it enables the desire of the Court to have the

outline of what provisions of the Constitution are

relied upon before the Court, so where paragraph 15

says "The plaintiff alleges", as far as we are
concerned the plaintiff can allege what it likes,

but as far as the facts are concerned, we are not

admitting that the payment was made pursuant to

and relies upon the agreement, we just submit it

was made after the agreement. It might be that

consequences follow but, Your Honour, it was

appreciated that there was a basis of claim that

could be made at common law, common law at equity, if you like, and I should mention that there is an

action, No B37 of 1992, issued by Precision Pools

Pty Limited out of the Brisbane Registry, which makes a claim not pursuant to the agreement, because it is a payment made before the agreement,

but raises the common law claim. I am instructed

in that matter, Your Honour, that the plaintiff and

the defendants, who are the Commonwealth and also

the Commissioner, are content for that action to

remain on one side and not quite abide,

Your Honour, but see where one is on the issue of

validity determined by reference to the agreement.

In that circumstance, Your Honour, the

paragraph that Your Honour read in after

paragraph 13 - - -

HIS HONOUR: Paragraph 15(b).

MR GRIFFITH:  No, Your Honour, the one you said after 13, we

would be happy if it said the plaintiff alleges the

defendant is legally obliged to repay the said

amount, or the plaintiff claims. The plaintiff

claims and the defendant denies, we would go along

Premier 25 26/11/92

with that, Your Honour, but we are not admitting

point blank that we are liable to repay it, but we

admit the facts of the agreement, we admit the

payment made after the agreement.

HIS HONOUR:  The problem, Mr Solicitor, is this, as it

seems to me. The case can go off on a question of

what inference a court drew concerning these

paragraphs. If the Court did not draw that

inference in favour of the plaintiff, that would be

the end of the whole matter.

MR GRIFFITH:  We are not admitting that inference in favour

of the plaintiff, Your Honour.

HIS HONOUR:  It is hardly a suitable vehicle for stating a

constitutional case if a vital fact concerning the

validity of the legislation is open to doubt.

MR GRIFFITH: Is that a fact or a conclusion of law,

Your Honour. Perhaps we could have another

question saying, "In the circumstances, apart from

the Act, is the- - -"

HIS HONOUR:	But surely it is a question of fact, is it not?
MR GRIFFITH:	It is a legal consequence, Your Honour. The

relevant facts are all admitted, we would submit, that the agreement was made, there is no pleading

of want of authority, and the payment was made and

the Act was declared invalid.

HIS HONOUR:  If there is an agreement made and then a

payment is made, the question is was the payment

made under the legislation, which you will no doubt

argue, or was it made pursuant to this agreement or

was it made pursuant to the legislation with the

knowledge that if the legislation was invalid, that

it would be repaid.

MR GRIFFITH:  Your Honour, it is probably the last, but we

are not admitting it. We do not mind the

--

allegation being made and we do not mind the Court,

seized we say with all the facts, making a

conclusion of law that in the circumstances - so,

Your Honour, what we see is, in effect, subsumed in

the question, is to determine it on those

facts - - -

HIS HONOUR:  Yes. I think - - -

MR GRIFFITH: We were legally advised. It is not something

we can admit, Your Honour.

HIS HONOUR:  No, and Mr Solicitor, I do not think that I

really intended that anyway; what I really intended

to say was that after the statement, "The plaintiff

Premier 26 26/11/92

has requested that the defendant repay ..... the said

amount", that "The plaintiff alleges that the

defendant is legally obliged".

MR GRIFFITH:  Your Honour, we have gone a country mile, as

it were, to get to the facts but we just cannot

cross the finishing line to give the plaintiff that

on a plate.

HIS HONOUR:  In that new paragraph that should go under 13,

I think it is necessary to put "the plaintiff

alleges", Mr Flick. Perhaps that paragraph really

should go in 15 because it is part of one of the things - I am sorry, that deals with the invalid

Act. It could go in under 13. Then the question

arises whether a case should be stated on that

question.

MR GRIFFITH:  Your Honour, I think our apprehension is that

it is subsumed in the second question, but we are

in Your Honour's hands. It seems to be the first

step to get to the second, Your Honour.

HIS HONOUR:  I am afraid, unless you do not ask the question

you are likely to get an hypothetical answer.

MR GRIFFITH: It is a simple enough question. It says: "Is

the defendant legally obliged to repay the said

amount of $1522 by reason of the facts and matters

referred to in paragraphs 5, 6, 7, 8, 9 and 10?"

We accept that, Your Honour. That is question 1,

and question 2 - - -

HIS HONOUR:  Yes. What do you say, Dr Flick?

MR FLICK:	I regret to advise that I am in agreement with the learned Solicitor. We would say that the facts
as set forth in paragraphs 5 to 10 and what follows
from that would be a conclusion but, as I
understand it, both parties now are in agreement
that an additional paragraph can be added which
reads, "By reason of the facts and matters referred
to in paragraphs 5, 6, 7, 8, 9 and 10, the
plaintiff alleges that the defendant is legally
obliged to repay the said sum of $1522 to the
plaintiff." If that is added, what alterations are
made to paragraph 15 is of no concern immediately
to the Solicitor and we would say that the question
set forth on paragraph 4 is appropriate, .... ,
sorry.
HIS HONOUR:	Do you want a fact stated that the plaintiff

alleges that the money was paid pursuant to the

agreement?

MR FLICK:  We could incorporate that in paragraph 13, "The

plaintiff alleges that the moneys were paid

Premier 27 26/11/92

pursuant to the agreement and that the defendant is

legally obliged to repay". That is still an

allegation, Your Honour.

HIS HONOUR: 

Yes, I know it is an allegation.

MR GRIFFITH: 

Your Honour, it seems a bit of a complication

because we have got the facts as agreed facts, and
having floating ones as alleged - - -

HIS HONOUR: 

But they do not lead anywhere, Mr Solicitor.

You have got - all that is, looked at objectively,

is an agreement, an amount of money paid, and the

Court has then got to draw an inference. At least

it does help, I think, for the Court to understand

what the case is about if at least you allege the

money is paid pursuant to - - -

MR GRIFFITH:  Your Honour, if the Court is assisted by an

allegation - - -

HIS HONOUR:  I do not think it does any harm and it at least

enables the Court to see the basis of the claim.

As you are well aware, Mr Solicitor, criticisms

have been made on a number of occasions that the

basis of the claim should be set out.

MR GRIFFITH: All we say is, Your Honour, where the amount

was paid after the agreement and the Act required

it to be paid, ..... was valid, so that is what we

can admit to. Your Honour, it may well be that

these issues never really become important because

either the Act is valid or invalid. If it is held

valid, then no doubt the parties, including the

parties in the other action, can consider where

there claims are. If the Act is invalid, then one

has a simple issue of are the moneys repayable

pursuant to the agreement for post-agreement
payments? Are they recoverable at common law for

pre-agreement payments? And that can be sorted

out.

HIS HONOUR: Let us say, assuming the plaintiff has got some -

standing to challenge the validity of this Act,

this Refund Act - - -

MR GRIFFITH:  We do not challenge that, Your Honour, because

the Act deals with the rights as between the

builder and the owner.

HIS HONOUR:  Yes.

MR GRIFFITH: There is a direct pecuniary interest, so we do

not plead standing.

Premier 28 26/11/92

HIS HONOUR:  I must say I still prefer that you put in the

allegation that the money is paid pursuant to that

agreement.

MR GRIFFITH:  Does Your Honour want two questions? My

learned friend was saying he was happy with one.	I
am happy with two, Your Honour.

MR FLICK:	I do not oppose the two questions, Your Honour.
HIS HONOUR:	You do not oppose two?
MR FLICK:	No, Your Honour.

HIS HONOUR:  We will state a second question. What is it?

MR GRIFFITH: I think I said, Your Honour: ''Is the

defendant legally obliged to repay the said amount

of $1522 to the plaintiff by reason of the facts

and matters referred to in paragraphs 5 to 10?"

HIS HONOUR:	Yes.
MR GRIFFITH:	Your Honour, it would seem to us to be about a

one day case.

HIS HONOUR:  Yes. Thank you, Mr Solicitor. I am prepared

to state a case in that form.	You have got the
carriage of it, Dr Flick?

MR FLICK: Yes, Your Honour. We will have to file an

amended statement of claim and an amended defence.

No, sorry, it is just a case. That can be done,

Your Honour.

HIS HONOUR:  What about the question of costs?

MR GRIFFITH: Costs reserved?

HIS HONOUR:  In this matter I propose to state a case in the

form which I have mentioned. How long do you want

to do a draft? ,:"

MR FLICK: That can be done this morning, Your Honour.

HIS HONOUR:  Then perhaps it could be submitted to me. I

will reserve the question of costs. Will I reserve

the question of costs or costs in the cause?

MR FLICK: Costs in the cause.

HIS HONOUR:  I order that the costs of today's proceedings

be costs in the cause. What is the situation in

respect of the Premier matter?

MR FLICK: Adjourned, Your Honour, until after these

proceedings are heard, sine die.

Premier 29 26/11/92

HIS HONOUR:  The matter of Premier Pools Pty Limited and

Others v The Commissioner of Taxation will be

adjourned sine die. Anything further?

MR FLICK:  No, Your Honour.

HIS HONOUR: Adjourn the Court.

AT 10.39 AM THE MATTER WAS ADJOURNED SINE DIE

.:

Premier 30 26/11/92