The Commissioner of Taxation of the Commonwealth of Australia v Multiflex Pty Ltd

[2011] HCATrans 320

[2011] HCATrans 320

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M159 of 2011

B e t w e e n -

THE COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA

Applicant

and

MULTIFLEX PTY LTD ACN 137 11 598

Respondent

Summons for expedition

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

FROM SYDNEY BY VIDEO LINK TO MELBOURNE

ON MONDAY, 21 NOVEMBER 2011, AT 9.35 AM

Copyright in the High Court of Australia

MR N.J. WILLIAMS, SC:   May it please the Court, I appear for the applicant.  (instructed by Australian Government Solicitor)

MS J.J. BATROUNEY, SC:   If the Court please, I appear with my learned junior, MR D.I. McINERNEY, for the respondent.  (instructed by Mills Oakley Lawyers)

HIS HONOUR:   Yes, Mr Williams.

MR WILLIAMS:   Your Honour, the Commissioner seeks expedition of the special leave application on two bases.  First, the delay in payment is causing financial hardship to the respondent.  There is some debate about the full extent of that, but we accept that there is financial hardship.  Secondly, the approach of the Federal Court has wide implications for the administration of GST legislation.  If the Federal Court’s approach is correct, the manner in which the legislative scheme is administered will have to change and in a way that has significant revenue implications.  Those are detailed in the affidavit of James O’Halloran, Deputy Commissioner, sworn on 15 November 2011.

HIS HONOUR:   And Mr Tavolaro’s affidavit?

MR WILLIAMS:   And Mr Tavolaro’s affidavit, your Honour. 

HIS HONOUR:   Sworn on the 16th. 

MR WILLIAMS:   Your Honour is correct, with respect.

HIS HONOUR:   All right, and I take it, Ms Batrouney, from what has been said that you are supporting this application?

MS BATROUNEY:   The application is not opposed, your Honour.

HIS HONOUR:   Thank you.  Well, it becomes a question, Mr Williams, of how soon the book could be got ready, the application book.

MR WILLIAMS:   That is a question first for the respondent as to when their submissions could be prepared.  Ours, of course ‑ ‑ ‑

HIS HONOUR:   Have you prepared yours?

MR WILLIAMS:   Ours have been filed, your Honour, yes.  They were filed last week.

HIS HONOUR:   Right.  What is the answer to that, Ms Batrouney?

MS BATROUNEY:   We were proposing that we would have our submission in by 30 November, if that would suit the Court.

HIS HONOUR:   Then there has to be a reply. 

MR WILLIAMS:   We could achieve that by Monday, the 5th, your Honour.  The 30th is a Wednesday.  We might be able to achieve it earlier but we could, at all events, achieve it by the 5th.  Perhaps I should say that we will achieve our reply by close of business on Friday, the 2nd.

HIS HONOUR:   Now, in preparing those submissions, I notice there has been – I may have missed it – in the construction of – Division 35, is it not?

MR WILLIAMS:   Yes, your Honour.

HIS HONOUR:   There does not seem to be an attention paid to what was said in Pape in several of the reasons – the Chief Justice in Pape 238 CLR 1 at 31, paragraph 38 and in the joint reasons at page 65, paragraph 140 and in Justice Heydon at 155, 452, namely to the effect that in these circumstances it is not only a question of mandamus but there is a question of action in debt.

MR WILLIAMS:   Your Honour, there was some debate before the primary judge about debt and there are some provisions in the legislative scheme that are relevant to debt.

HIS HONOUR:   Where are they?

MR WILLIAMS:   Your Honour, I do not have them at my fingertips but I can tell your Honour briefly that the position is that the taxpayer’s obligation to pay to the Commissioner is articulated as a debt.

HIS HONOUR:   Yes.

MR WILLIAMS:   The concomitant duty or rather the corresponding duty on the part of the Commissioner to pay is not described as a debt.  The amount that is referred to is the subject of a duty on the part of the Commissioner but it is not described as a debt.

HIS HONOUR:   No, it is not, no.  That is where the rule in Shepherd v Hills kicks in or may kick in.

MR WILLIAMS:   Yes.

HIS HONOUR:   When did you file your submissions, Mr Williams?

MR WILLIAMS:   Your Honour, 17 November.

HIS HONOUR:   Right, that was last Thursday.

MR WILLIAMS:   That is so.

HIS HONOUR:   This is what I propose:

1.Direct that the respondent’s submissions be filed and served on or before 25 November.

2.Direct that the applicant’s reply be filed and served on or before 30 November.

3.Direct that the application book include the reasons and order of Justice Edmonds of 18 November on the stay application.

4.The application book be filed and served on or before 2 December and the application be included in the special leave list for hearing in Sydney on Friday, 9 December 2011.

5.Costs of today be costs in the special leave application.

Any difficulties with that?

MR WILLIAMS:   Not for our part, your Honour.

MS BATROUNEY:   No, your Honour.

HIS HONOUR:   Very well.  Is there any need for me to say it again?

MR WILLIAMS:   No, your Honour.

HIS HONOUR:   You have a note.  Very well, I will now adjourn.

AT 9.44 AM THE MATTER WAS ADJOURNED