Telstra Corporation Limited v Chief Commissioner of State Revenue (Rd)

[2005] NSWADTAP 28

Appeal Panel - Internal

CITATION:	Telstra Corporation Limited v Chief Commissioner of State Revenue (RD) [2005] NSWADTAP 28
PARTIES:	APPELLANT Telstra Corporation Limited RESPONDENT Chief Commissioner of State Revenue
FILE NUMBER:	049041
HEARING DATES:	20/12/2004
SUBMISSIONS CLOSED:	12/20/2004
DATE OF DECISION:	06/17/2005
DECISION UNDER APPEAL:	Telstra Corporation Limited v Chief Commissioner of State Revenue [2004] NSWADT 189
BEFORE:	O'Connor K - DCJ (President); Seve J - Judicial Member; Bennett C - Non Judicial Member
CATCHWORDS:	statutory interpretation
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	046026
DATE OF DECISION UNDER APPEAL:	08/31/2004
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Duties Act 1997 Income Tax Assessment Act 1936 (Cth)
CASES CITED:	Telstra Corporation Ltd v Chief Commissioner of State Revenue [2004] NSWADT 189 Distribution Group Limited v FC of T [2003] FCA 202; [2003] ATC 4295 Commissioner of Taxation v The Distribution Group Limited [2003] FCAFC 182; [2003] ATC 4691 FCT v Students World (Australia) Pty Ltd (1978) 138 CLR 251 FCT v Lutovi Investments Pty Ltd (1978) 140 CLR 434 Trustees of the Estate of Grant v FCT 81 ATC 4603; FCT v Ball 82 ATC 4701
REPRESENTATION:	APPELLANT M Richmond of counsel instructed by Mallesons Stephen Jaques (Melbourne) RESPONDENT H R Sorensen of counsel instructed by Crown Solicitor's Office
ORDERS:	1. Appeal allowed; 2. Decision under appeal set aside; 3. Leave given to extend the appeal on the merits

1 This appeal relates to the proper interpretation and application of the provisions in Chapter 6 of the Duties Act 1997 (the Act) relating to hire of goods duty.

2 The hire transaction in question is the rental by the appellant (Telstra) of basic telephone handsets to certain residential customers of Telstra, on a monthly basis. After paying the duty on the rental amount without protest since 1 July 1998, Telstra made a formal objection to the respondent Commissioner’s assessment in respect of the month, December 2003.

3 The Commissioner rejected the objection. Telstra applied for review by the Tribunal. The Tribunal affirmed the Commissioner’s decision: see Telstra Corporation Ltd v Chief Commissioner of State Revenue [2004] NSWADT 189 (31 August 2004). Telstra now appeals to the Appeal Panel.

Background

4 The rental practice in issue is a well known one. Residential customers are entitled to require Telstra to provide them with a basic telephone handset. This entitlement flows from universal service obligations placed on Telstra by Commonwealth law, and from its Carrier Licence conditions. The practice has its origins in the era prior to 1991 when Telstra was the monopoly provider of telecommunications services to the community, and had a monopoly over supply to residential customers of the first handset connected to the line to the local exchange. (The relevant material is dealt with at length in the decision under appeal.)

5 The monthly accounts for those residential customers that continue to hire a handset include a separate item, ‘telephone handset rental’. For some years the monthly fee was set at $2.50. It is now $3.00.

6 The duty is imposed by s 180 of the Act. The term ‘goods’ is defined in a conventional way: s 182. Section 183 provides:

‘ 183 What is a “hire of goods”?

(1) A hire of goods is an arrangement under which goods are or may be used at any time by a person other than the person hiring out the goods, unless the arrangement is excluded under section 186.

(2) There are two kinds of hire of goods, namely:

(a) an equipment financing arrangement, and

(b) an ordinary (that is, any other) hire of goods.

Note. The rates of duty are different for the two kinds of hire.’

7 There is no dispute, if not excluded by s 186, that the hire of goods transaction in issue is an ordinary hire of goods for the purposes of s 183.

8 The focus of the case is s 186, which contains various exclusions from the meaning of ‘hire of goods’ as contemplated by s 183(1). In this case it is the exclusion contained in paragraph (f) of s 186(1) that Telstra says is applicable to its circumstances:

‘ 186 Exclusions from the definition of “hire of goods”

(1) A hire of goods does not include any of the following: …

(f) an arrangement for the use of goods the provision of which is incidental and ancillary to the provision of a service if the provision of the goods is solely to enable the contractual provision of the service.’

9 Telstra’s case, in brief, is that when it provides a telephone handset it does so incidentally to its primary service of supplying a connection to the telecommunications system; and the provision of the handset therefore is an arrangement of a kind to which the exclusion in para (f) attaches.

10 There is no dispute between the parties that the circumstances satisfy the first limb of para (f) - ‘an arrangement for the use of goods the provision of which is incidental and ancillary to the provision of a service’. The Act does not contain any definition of ‘service’. What precisely is the ‘service’ in this case was the subject of some varying formulations by both parties in the course of their submissions.

11 The ‘service’ has been agreed between the parties as being the provision of access, via a connection point, to the telecommunications system and the operation of that system. In the case Telstra described this system as the ‘voice telephony carriage service’ (the VT Carriage Service).

12 It is the construction to be given to the second limb of para (f) [‘if the provision of the goods is solely to enable the contractual provision of the service’] that is in contention.

13 The Commissioner’s view is reflected in reasons given at various stages in his Office’s consideration of Telstra’s objection:

‘…[I]t is considered that the concession under s 186(1)(f) of the Act is only available where the goods must be supplied to meet the contractual obligations for the supply of the service or line to the customer premises.

In the present case, it is not mandatory that the telephone handsets be provided to enable the use of the telecommunications service.’

(decision under review in these proceedings, 15 April 2004)

‘The supply of a telephone handset does not form part of the terms and conditions contained in the agreement for the supply of the telephone service. It is therefore considered that the supply of a handset does not form part of the provision of the service and therefore an exemption from duty … does not apply.’ (earlier decision, 17 September 2002)

14 The Tribunal, after a detailed examination of the factual background and the submissions of the parties reached the same conclusion, its views summarised at [60] of its reasons:

‘60 The difficulty that has arisen in relation to the interpretation of s 186(1)(f) may to some extent be due to the difficulty in ascertaining the real purpose of the provision. It was inserted to avoid any double duty, to exclude arrangements, which are primarily for the provision of services as distinct from hire of goods, and essentially to overcome some difficulty the finance industry was going to experience in its absence. The facts relating to the rental of handsets by Telstra are fairly straightforward and none of the concerns, which the provision was intended to address, arise here. The rental of handsets by Telstra is clearly a rental of goods independent of any basic telephone service that it supplies to its customers. Because the handsets are not part of that service, they are available from Telstra at the option of the customer or independently from any other dealer with the customer not paying any rental charge to Telstra. The charge for the basic telephone service is fixed without regard to the rental charge for a handset. There is no provision in the SFOA [Standard Form of Agreement with Residential Customers], which would suggest the contrary, that the handset is supplied to make possible the contractual supply by Telstra of the basic telephone service. The handset is rented by Telstra under the SFOA “for use with Telstra’s Standard Telephone Service” and not as part of the service.’
The Appeal

15 The Administrative Decisions Tribunal Act 1997 (the Tribunal Act), ss 112-113 gives the parties to review proceedings a right to appeal in relation to questions of law. The present appeal raises questions of law relating to the proper construction of para (f) and its application to the present circumstances.

16 By leave of the Appeal Panel, an appeal may be extended to the merits. In this case Telstra has asserted that the Tribunal made a number of errors in its reasoning and interpretation of s 186(1)(f) which involved errors of law; and has also applied for leave to extend the appeal to the merits. The Appeal Panel indicated that it would in this decision deal with the questions of law, and only address the application for leave to extend to the merits once it had formed a view in relation to the question of law appeal.

17 Telstra in its notice of appeal identified eleven aspects of the reasons of the Tribunal which it claimed involved errors of law. Some of the reasoning said to involve error is apparent in para [60], just quoted.

18 We will deal with what we see as the key questions raised by the appeal, and later in our reasons will refer to the eleven grounds of appeal seriatim.

The meaning of the second limb of paragraph (f)

(i) Must the goods ‘form part of the service’

19 As noted above, the Tribunal said in para [60] of its reasons:

‘Because the handsets are not part of that service, they are available from Telstra at the option of the customer or independently from any other dealer with the customer not paying any rental charge to Telstra.’

20 As also noted earlier, the Commissioner said in the decision of September 2002:

‘The supply of a telephone handset does not form part of the terms and conditions contained in the agreement for the supply of the telephone service. It is therefore considered that the supply of a handset does not form part of the provision of the service and therefore an exemption from duty … does not apply.’

21 The position being adopted would appear to be that the supply of the goods is separate from supply of the service, and therefore the supply of the goods does not fall within the scope of para (f). In their insistence that the goods must ‘form part of the service’ the Commissioner and the Tribunal, we consider, have misconstrued the provision. It is apparent from the words of the first limb of para (f) that the goods need not form part of the service. The first limb of para (f) speaks of ‘an arrangement for the use of goods the provision of which is incidental and ancillary to the provision of a service’ (our emphasis). It is not material that the goods form part of the service whether as a practical matter (the Tribunal’s emphasis), or as an incident of the principal contractual terms (the Commissioner’s emphasis).

22 The provision is seeking to address a situation where goods are supplied in addition to the service. The words ‘ancillary’ and ‘incidental to’ bring this out. This interpretation is consistent with the one indication that is found in the extrinsic materials as to the background to this exclusion. In the Second Reading Speech on the Bill (Hansard, LA, 12 November 1997), the Minister representing the Treasurer said: ‘The bill also expressly excludes from liability arrangements which are primarily for the provision of services.’

23 The word ‘primarily’ brings out that the Parliament was trying to provide exemption from duty for situations where the principal element of the transaction with the customer was one of provision of services but there was an incidental or secondary element involving the provision of goods. As we see it the objective is not to impose duty if there is only an incidental goods element to the transaction, viewed as a whole (and provided also the second limb of para (f) is satisfied).

(ii) Must the Supply of the Goods be Mandatory?

24 The Commissioner and the Tribunal also asked whether the supply of the goods was mandatory. They focused on the terms of the Standard Form of Agreement (SFOA). They gave considerable weight to the question of whether the provision of the goods was mandatory under the SFOA. They concluded that the contract did not make supply mandatory, and that was conclusive.

25 It is clear that SFOA does not itself require all residential customers to hire a Telstra handset in order to be able to use the wired service. The provision of the handset is an ‘add on’ for customers who choose to have Telstra supply it. The supply of a basic handset by Telstra is a discretionary matter for the customer. It is a mandatory matter for Telstra if the customer so elects. In our view, the Commissioner and the Tribunal should have found that Telstra did have a mandatory obligation to supply telephones to those residential customers who pay the monthly charge for handset rental.

26 Most situations that are likely to fall within the scope of para (f) are, we think, likely to be ones where the supply of the goods is made mandatory by the supplier of the service; and the customer is not permitted to go elsewhere in the market to obtain the goods. The oddity of this case is that the customer is the party that makes the supply of the goods mandatory. As we read para (f), its terms do not exclude that contractual possibility.

(iii) Use of the Supply of Services/Receipt of Services Distinction

27 In dealing with the question of the applicability of para (f), there was much attention given by the Commissioner and the Tribunal to the Federal Court decisions in Distribution Group Limited v FC of T [2003] FCA 202; [2003] ATC 4295 (Goldberg J) and on appeal, Commissioner of Taxation v The Distribution Group Limited [2003] FCAFC 182; [2003] ATC 4691 (Full Court, French, Sackville and Hely JJ; affirming Goldberg J’s decision) (the Distribution Group case).

28 Under federal sales tax law, the sale of electrical materials ‘of a kind ordinarily used as part of fixed electrical installations in customer’s premises’ are exempt from tax. However they are taxable if they were ‘used in the provision of telecommunications … services’.

29 The question of whether certain sales fell on the telecommunications side of the line and were taxable was the subject of the Distribution Group decisions.

30 The goods under notice were Local Area Network (LAN) cable. LAN cable is commonly used to facilitate data transmission by linking computers together within a single organisation. It also used in complex lay-outs such as offices to connect the customer to the network. It was accepted in the case that major telecommunications service providers such as Telstra and Optus did not use the LAN cable within their networks.

31 Goldberg J (at first instance) drew a distinction, which has been taken up in this case by the Commissioner and the Tribunal:

‘32. … I do not accept that the expression ‘the provision of telecommunications … services’ applies to the entire process of communication or connection between the initial provider, and the ultimate consumer using a computer or part of a LAN network. That ‘provision’ ends at the point at which the delivery system of the provider of the services terminates, namely at the network interface. Although the telecommunication services may be reticulated along and through the LAN network, it does not follow that the proprietor or operator of the LAN network is providing the telecommunications services which have been delivered by the network provider to the network boundary point.’

32 The following passage from the Full Court’s reasoning was adopted by the Commissioner in submissions in the present case in support of the view that the handset hire charge is dutiable:

‘22. It is inherent in the nature of a telecommunications service that it has a supply side and a demand side. Suppliers, such as Telstra or Optus, supply or provide the telecommunications service to consumers who receive the service. Goods may be used in connection with the provision of the service, as well as in connection with its receipt. It does not follow that goods which are used in connection with the receipt of a service are necessarily used “ in the provision of” that service. Whether goods are used in the provision of a service, as distinct from in connection with its receipt, may depend upon a number of factors, including whether there is a point prior to the receipt of the service by an end user at which the role of the service provider comes to an end.’

33 In this case, we believe that the question to be considered is not assisted by the observations quoted. The issue is whether the goods under notice were ‘solely to enable the contractual provision of the service’. This is a different kind of question to the one that faced the Court in Distribution Group.

34 In that case the Court was required to form a view as to what activities could be said to belong in our community to the sphere of ‘telecommunications services’ (or, to refer to another part of the provision, ‘audio visual services’). It is commonplace to speak of a community having within it a variety of services, for example, ‘educational’ services or services with a more technological character such as ‘transport’ services, ‘computer’ services or ‘port and marine’ services. Expressions of this kind are intended to identify a genus. The decision-maker is required to define the service mentioned in a generic way. That is what the Federal Court did.

35 To that end the Court drew a distinction between the ‘provision’ of the services and the ‘use’ of the services. This is a sensible approach which could equally be applied to the other categories of ‘service’ that we have listed. This is not the question being asked in this case.

36 Paragraph (f) merely requires an examination of the particular commercial circumstances that have fallen subject to assessment and a characterisation of the ‘service’ being provided in the particular case. There is no need to approach that question by reference to the generic division of services across the community as a whole. ‘Service’ carries a more specific connotation in paragraph (f). In our view, the Commissioner and the Tribunal erred in relying on Distribution Group to ascertain the meaning of the second limb of para (f).

‘Solely to Enable’

37 The key words in the second limb of para (f) are, in our view, the words ‘solely to enable’.

38 The expression ‘solely to enable’ and the words ‘to enable’ are ones in common usage. There are a number of dictionary and judicial definitions of the words ‘to enable’, all of which we see as relevant to this case. Two examples of dictionary definitions are these:

Macquarie Dictionary (3rd ed): ‘1. to make able; give power, means or ability to; make competent; … 2. to make possible or easy’.

Oxford English Dictionary (2nd ed 1989): ‘2. to empower …5a. to make possible or easy. 6. esp in computing, to make (a device) operational, to turn on’.

39 Telstra referred the Tribunal to four cases arising under the Commonwealth Income Tax Assessment Act 1936 where the word ‘enable’ had been interpreted: FCT v Students World (Australia) Pty Ltd (1978) 138 CLR 251; FCT v Lutovi Investments Pty Ltd (1978) 140 CLR 434; Trustees of the Estate of Grant v FCT 81 ATC 4603; FCT v Ball 82 ATC 4701.

40 At the least, the word has been interpreted in these cases to mean ‘to make able’ or ‘to make easy’: see for example, Lutovi Investments at 446 per Gibbs, Mason JJ. We agree with Marks J that whether a wider meaning should be adopted (such as ‘to facilitate’) will often depend on the statutory context in which the words appear: see Trustees of the Estate of Grant at 4615-6.

41 We agree with the submission of Telstra that here it is sufficient, in applying the words ‘solely to enable’, to adopt the narrower interpretations above, to ‘make able’, ‘make easy’ or ‘make possible’.

42 In applying these words to particular circumstances, it is not, in our view, of any great weight (contrary to the view of the Commissioner and the Tribunal) that there are a range of suppliers of the same goods by hire. This would in our view be a common circumstances in many cases where there is a contract for the provision of services and some goods are supplied on an ancillary or incidental basis. The goods will often be ones of a common kind, available from a number of suppliers. The bargain may be constructed in such a way that the goods form part of the overall deal.

43 Viewed in this way, it is not correct (contrary to the Commissioner’s submission) to confine the operation of the word ‘solely’ to the question of whether the goods supplied were the only ones capable of ‘enabling’ the service effectively to be provided.

‘Contractual Provision of the Service’

44 It will be apparent from this analysis that we also disagree with the Tribunal and the Commissioner is relation to the effect of the words the ‘contractual provision of the service’. In our view, the word ‘contractual’ does not require that the provision of the goods must be part of the contract for the provision of services; rather it describes the ‘provision of the service’ and requires that it is according to a contract. The rental terms may be in the form of a separate contract; or, as here, an annexure or addendum to the main contract.

45 The question is whether the only purpose of supply is to enable the contractual provision of the service; not whether the contractual provision of the goods is only possible with the relevant provision of the goods.

46 Because of the errors which, we consider, affected the Tribunal’s reasoning we are of the view that the appeal should be upheld, and leave should be given to extend the appeal to the merits, rather than remitting the matter to the Tribunal at first instance.

Specific Comments on Grounds of Appeal

47 We will now make some specific itemised comments on the eleven points of appeal, quoting first each of the points of appeal as they appeared in the notice of appeal.

48 The first point is:

1. That the Tribunal misstated the purpose of s 186(1)(f) at [38] and [60] as being to avoid any double duty and to exclude arrangements which are primarily for the provision of services. It said that the Tribunal failed properly to take into account the true purpose of s 186(1)(f) being to exclude from liability arrangements which are primarily for the provision of services.
We agree that (f) did not have as an objective the prevention of the possibility of ‘double duty’. The Tribunal quoted at [38] an extract from the Second Reading Speech, which commenced with the following two sentences: ‘The bill also simplifies the duty imposed on the hire of goods in order to reduce the potential for double duty. Duty will be payable only if goods are used solely or predominantly in New South Wales.’ These two sentences relate to s 181 of the Act. Section 181 deals with the jurisdictional nexus, and seeks to avoid the possibility that duty might be applied in two or more jurisdictions to the same transaction. The next sentences in the Second Reading Speech – ‘The bill also expressly excludes from liability arrangements which are primarily for the provision of services. These changes are a direct result of consultation with the finance industry.’

49 The second point is:

2. That the Tribunal erred in concluding that in order for s 186(1)(f) of the Duties Act to apply, the provision of the telephone handset must be part of the VT Carriage Service (at [45], [58] and [60]). It argued that there was no requirement in s 186(1)(f) that the goods be provided as part of the relevant service.
For the reasons given above, we agree.

50 The third and fourth points are:

3. That the Tribunal erred in concluding that the provision of the handset was ‘an independent arrangement’ from the provision of the VT Carriage Service and, even if it be correct, that this was relevant to whether s 186(1)(f) applied.

4. That the Tribunal erred in concluding that the provision or supply of the VT Carriage Service was quite independent of any access to it (at [47]).

These two objections raise a similar point. They go to the approach that the Tribunal and the Commissioner have taken to the application of para (f) to the facts. In our view, the arrangement could be ‘independent’ in the sense of a separate business arrangement or an independent contract. This characterisation does not assist, as we see it, in addressing the question that is required to be addressed. That question is whether the purpose of supply of the equipment was ‘solely to enable’ the provision of the service. There are strong considerations in this case supporting Telstra’s submission.

51 The fifth point is:

5. Telstra submitted that the Tribunal erred (at [53]) in concluding that only limited regard should be had to the statutory scheme under which Telstra provided the VT Carriage Service and telephone handsets, and that regard should instead be had to the contract.
We have addressed this issue. We do think it relevant to have regard to the statutory scheme, as well as the contract with customers. The Commissioner and the Tribunal did not give sufficient consideration to the statutory scheme. It is an error, in our view, to compartmentalise the contract where the supplier’s freedom to contract is constrained by a statutory scheme, as is the case here.

52 While Telstra did not provide the handsets to persons who were not customers, the statutory context was relevant. Telstra was providing the handsets according to a statutory obligation to do so in order for its customers to be provided with a service. Accordingly, the Tribunal erred in restricting its consideration to the contractual provisions and not having regard to the statutory context.

53 The sixth point is:

6. That the Tribunal had erred in restating the question posed by s 186(1)(f) as follows: “Is the supply (by Telstra) of the handset exclusively to make possible the contractual supply (by Telstra) of the basic telephone service?”
What the Tribunal has done in putting the question like this is to replace the word used in the statute, ‘provision’ with ‘supply’, the word ‘goods’ with ‘handset’ the word ‘solely’ with ‘exclusively’ the words ‘to enable’ with ‘to make possible’ and the words ‘contractual provision of the service’ with ‘the contractual supply of the basic telephone service’. It is clear, we think, that it was not the intention of the Tribunal to alter the test required by para (f).

54 Whilst it may have been preferable not to use substitute language, the intent of the Tribunal is clear. It was simply trying, through the use of words which it felt carried the same meaning, to seek to explain better the test set by para (f). Understood in this way there is no error.

55 The seventh point is:

7. That the Tribunal erred in concluding that the telephone handset ‘is not a good for the contractual provision of the service but rather a good for the receipt of the service’ (at [56]).
For the reasons already given in discussing the Distribution Group case, this test is not relevant, we consider, to the question posed by the provision. Further, it assumes, we think wrongly at least so far as this case is concerned, that goods for the provision and the receipt of a service are mutually exclusive: Distribution Group , ATC report at 4696.

56 The eighth point is:

8. That the Tribunal erred in concluding that no regard should be had to “the technical use of a handset” (at [56]).
The Tribunal said at [56]:

‘56 The question as formulated can only be answered in the negative in the present matter. As submitted by the Commissioner, the handset is not a good for the contractual provision of the service but rather a good for the receipt of the service. The law requires the question so formulated to be answered in the context of the relevant contract and not on any technical basis. I do not think it is necessary to consider the technical use of a handset. All that the provision requires is to determine if the handset enables the contractual supply by Telstra of the service.’

This overstates the position. While it will often be necessary to have regard to the function performed by the goods in connection with the service, ultimately the question is not one dependent on technical considerations, but on the purpose of the supply of the goods. That purpose is to be discerned by having regard to all the circumstances, including functionality.

57 The ninth point is:

9. Telstra said that the Tribunal erred in concluding that the telephone handset is ‘used merely to access the service’ (at [59]).
This observation is not, viewed literally, problematic. Clearly the equipment was supplied by Telstra to access the voice telephony service. The problem lies in the connection of this observation to the supply/receipt distinction drawn in Distribution Group , and the ascendancy given to that distinction in the interpretation given to para (f) by the Commissioner and the Tribunal.

58 The tenth point is:

10. That the Tribunal erred in concluding that the Distribution Group case supported the conclusion that s 186(1)(f) did not apply.
As explained in our reasons, we agree.

59 The final point is:

11. That the Tribunal erred in placing significance on the fact that the customer could elect to be provided with a handset by Telstra or obtain a handset from another source. It said that this was not relevant because Telstra had a statutory obligation to provide a handset to a customer who elected to be supplied with it, and the exemption was only being claimed in relation to handsets which were provided to customers on their request.
For the reasons given above, we agree.

60 Accordingly, the appeal is allowed. Leave is given to extend to the merits. The main point that continues to trouble us is the following.

61 As noted, the second limb of para (f) requires the provision of the goods in question to be ‘solely to enable the contractual provision of the service’. The difficulty we have in this case is that the customer is free to use the telephone not only to access the Telstra carriage service but also the carriage services provided by other carriers such as Optus. If the purpose of supply is to be determined simply by reference to the purpose of the supplier, then this may not be a problem. Telstra has submitted that the sole purpose of its supply is to enable the customer to use its carriage service.

62 If, however, the purpose of supply is to be judged by reference to all the circumstances, including the way in which the customer is permitted to use the goods, then it might be argued that the purpose of supply does not have the necessary quality of being ‘solely’ to enable the supply of the service. This interpretation, so far as we can see, has not been the subject of submissions.

63 We invite the parties to make further submissions in light of our reasons as to the merits of the matter. It may be able to be dealt with on the papers: see Administrative Decisions Tribunal Act 1997, s 76. The Registrar is directed to re-list the matter for a directions hearing before the President to consider that option, or to make directions for an oral hearing.

Order

1. Appeal allowed.

2. Decision under appeal set aside.

3. Leave given to extend the appeal to the merits.