Victoria Co Ltd v Deputy Commissioner of Taxation
[2001] FCA 641
•08 JUNE 2001
Income Tax
(2001) 182 ALR 463
INCOME TAX - public binding ruling erroneously stated that a taxpayer could realise a foreign exchange gain or loss arising from a liability in a foreign currency without outlaying Australian dollars or converting the amount received to Australian dollars - whether appellant entitled to rely upon ruling where the liability in the foreign currency arose from a borrowing made prior to 1 July 1992, that being the date of commencement of the Taxation Laws Amendment (Self Assessment) Act 1992 (Cth)and was repaid after that date - subject matter of ruling discussed - effect of s 12(2) of the Taxation Laws Amendment (Self Assessment) Act 1992 (Cth) considered
Income Tax Assessment Act 1936 (Cth) ss 82U, V and Z, s 170BA
Taxation Administration Act 1953 (Cth) Part IVAAA
Taxation Laws Amendment (Self Assessment) Act 1992 (Cth) ss 12, 13
Commissioner of Taxation v Energy Resources of Australia Ltd (1996) 185 CLR 66
referred to
VICTORIA CO LIMITED v
DEPUTY COMMISSIONER OF TAXATION
W 205 0F 2000
HILL, TAMBERLIN & EMMETT JJ
SYDNEY
8 JUNE 2001
| IN THE FEDERAL COURT OF AUSTRALIA | |
| WESTERN AUSTRALIA DISTRICT REGISTRY | W205 OF 2000 |
| BETWEEN: | VICTORIA CO LIMITED (ARBN 050 584 202) APPELLANT |
| AND: | DEPUTY COMMISSIONER OF TAXATION RESPONDENT |
| HILL, TAMBERLIN AND EMMETT JJ | |
| DATE OF ORDER: | 8 JUNE 2001 |
| WHERE MADE: | SYDNEY |
THE COURT ORDERS THAT:
The appeal is dismissed with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
| IN THE FEDERAL COURT OF AUSTRALIA | |
| WESTERN AUSTRALIA DISTRICT REGISTRY | W205 OF 2000 |
| BETWEEN: | VICTORIA CO LIMITED (ARBN 050 584 202) APPELLANT |
| AND: | DEPUTY COMMISSIONER OF TAXATION RESPONDENT |
| JUDGES: | HILL, TAMBERLIN AND EMMETT JJ |
| DATE: | 8 JUNE 2001 |
| PLACE: | SYDNEY |
THE COURT:
1 The appellant, Victoria Co Limited (Victoria), appeals against a decision of a judge of this Court (Lee J) dismissing the appeals brought by Victoria against appealable objection decisions made by the respondent Deputy Commissioner of Taxation (the Commissioner) in relation to assessments of income tax for the years of income 1 June 1993 to 31 May 1994 and 1 June 1994 to 31 May 1995 being substituted accounting periods in lieu of the 1994 and 1995 years of income respectively.
2 At issue in the appeals is whether Victoria is entitled to rely upon a public ruling (TR93/8) issued by the Commissioner on 25 March 1993 and purporting to be made under Part IVAAA of the Taxation Administration Act 1953 (Cth) (the "TA Act"). Victoria submits that it is. The Commissioner submits that the ruling does not cover the transaction entered into by Victoria, particularly having regard to the provisions of s 12(2) of the Taxation Laws Amendment (Self Assessment) Act 1992 (Cth) (the "Amending Act"). Although eschewing a submission that the Commissioner acted without power in making the ruling, the Commissioner's case, in essence, depends upon the proposition that the public ruling was not authorised by Part IVAAA of the TA Act.
THE FACTS
3 Victoria is a company incorporated in Japan and at all relevant times registered in Australia as a foreign company under the Corporations Law. It conducted its business in Australia in or through a permanent establishment and as a consequence of s 4 of the Income Tax (International Agreements) Act 1953 (Cth) and Article 4(1) of the Japan Australia Double Tax Agreement is liable to Australian tax on what amounts to its taxable income.
4 The relevant facts as found by the learned primary Judge, which were not really in issue, were as follows:
"14 ... On 6 September 1991 Victoria arranged a loan with Sumitomo in the sum of Y10 billion. ... The loan was for a fixed term of two years. Upon expiry of the loan on 7 September 1993 Victoria obtained another loan from Sumitomo in the sum of Y10 billion, the whole of which was applied to the discharge of the previous loan. ...15 All of the lending arrangements described above, and all repayments thereunder, were made in yen in Japan. No conversion to Australian dollars was made, in fact or notionally, to calculate in Australian dollars the amount received under the loans or the amount required for repayment of the loans.
..."
5 There had been earlier borrowings, the first of which was made on 15 December 1989 and which related to the acquisition by Victoria of the management rights to the Burswood Resort Casino in Perth; the second of which was made on 21 May 1990, and a third on 27 June 1990. At least some of the third borrowing was used to refinance the borrowing of 21 May 1990. These earlier borrowings are really but background to the borrowing of 6 September 1991 which was applied towards the discharge of the 27 June 1990 borrowing. The September 1991 loan was discharged by the further refinancing on 7 September 1993.
6 Victoria claimed to be entitled to an allowable deduction for the amount of a loss said to have been incurred on the discharge of the 1991 borrowing. The loss claimed was the result of a notional calculation of the difference between the sum in Australian dollars that would have been required to obtain a sum of 6,438,850,034 yen on 6 September 1991 and the sum in Australian dollars that would have been required to obtain that yen amount on 7 September 1993. At no time was there any actual exchange transaction. Both the borrowing and the discharge took place in yen.
7 It is common ground as a result of the decision of the High Court in Commissioner of Taxation v Energy Resources of Australia Ltd (1996) 185 CLR 66 that where a borrowing and repayment took place in the same foreign currency no notional conversion of the currency to Australian dollars was required or permitted to be made so as to give rise to a gain or a loss on capital account. Accordingly, but for the ruling to which reference will now be made, Victoria's claim to a deduction for the notional capital loss under s 82Z(1) of the Income Tax Assessment Act 1936 (Cth) (the "Act") was not an allowable deduction.
THE RULING
8 The Ruling relevantly provides as follows
"1. This Ruling explains:(a) when a taxpayer realises a foreign currency exchange gain or loss of a capital nature under Division 3B of Part III of the Income Tax Assessment Act 1936 (ITAA); and
(b) the meaning of `eligible contract' in Division 3B.
2. Division 3B applies only to foreign currency exchange gains and losses (referred to in this Ruling as foreign exchange gains and losses) of a capital nature. It does not apply to gains or losses of a capital nature unrelated to the production of assessable income or the carrying on of a business for the purpose of producing assessable income. Nor does it apply to gains or losses of a private or domestic nature or to those gains made or losses incurred in relation to production of exempt income.
3. The concepts of realisation and eligible contract are central to Division 3B. Under the Division, a foreign exchange gain made under an eligible contract is assessable income of a taxpayer in the year of income it is realised. Similarly, a foreign exchange loss incurred under an eligible contract is an allowable deduction in the income year it is realised.
4. This is the first of a number of Rulings concerning the interpretation of Division 3B. Each of those Rulings will address one or more major issues relating to Division 3B.
A. Eligible contract
5 If a taxpayer enters into a contract on or after 19 February 1986 for two or more purposes, one of which is to hedge an exposure to exchange rate fluctuations, that contract is an eligible contract for the purpose of Division 3B.
6. In Division 3B the word `contract' bears its ordinary meaning.
7. If a taxpayer draws a bill of exchange (`bill') or promissory note (`note') under a finance facility agreement (explained in paragraphs 26-27), each bill or note issued under the facility is a separate eligible contract for the purposes of Division 3B.
B. When is a foreign exchange gain or loss realised?
8. The general principles are as follows. If a foreign exchange gain or loss arises from a liability in a foreign currency, the taxpayer realises the gain or loss when the liability is discharged by actual or constructive payment. Conversely, if a foreign exchange gain or loss arises from a right to receive foreign currency, the taxpayer realises the gain or loss on the actual or constructive receipt of payment.
9. If a taxpayer has a liability in a foreign currency and pays part of that liability, the taxpayer realises any foreign exchange gain or loss on the amount repaid at the time of the part payment. Similarly, if a taxpayer entitled to receive an amount of foreign currency receives part of that amount, the taxpayer realises any foreign exchange gain or loss on the amount received at the time the taxpayer receives part payment.
10. A taxpayer can realise a foreign exchange gain or loss arising from a liability in a foreign currency without outlaying Australian dollars to acquire the relevant currency to satisfy the liability. Similarly, a taxpayer can realise a foreign exchange gain or loss arising from a right to receive foreign currency without converting the amount received to Australian dollars.
...
Date of Effect
16. This Ruling applies to years commencing both before and after its date of issue. However, the Ruling does not apply to taxpayers to the extent that it conflicts with the terns of a settlement of a dispute agreed to before the date of issue of the Ruling (see paragraphs 21 and 22 of Taxation Ruling TR 92/20).
...
Example 1: Borrowing in foreign currency repaid from foreign currency holdings
78. Assemble Ltd, an Australian resident manufacturing company, borrowed $US1 million on 1 July 1991 to purchase a portfolio of shares as an investment. On 1 July 1992 it sold the shares for $US1 million, and with the US dollar proceeds repaid the loan. None of these transactions involved the payment or receipt of Australian currency. Assume the relevant exchange rates were:
1 July 1991: US75¢ = $A1
1 July 1992: US70¢ = $A1
The Australian dollar equivalent of the loan when:
Drawn down $A1,333,333 (i.e. $US1,000,000/.75)
Repaid $A1,428,571 (i.e. $US1,000,000/.70)
79. The fact that there has been no outgoing of Australian dollars does not preclude an exchange loss being realised. Assemble realised a foreign exchange loss of $A95,238 on 1 July 1992 when it satisfied its liability by repayment. That loss is an allowable deduction for Assemble under subsection 82Z(1) for the income year ended 30 June 1993."
LEGISLATIVE BACKGROUND
9 Division 3B of Part III of the Act provides that in certain circumstances a foreign currency gain or loss incurred on capital account under an eligible contract as defined will be assessable income or an allowable deduction as the case may require. The relevant sections read as follows:
"82U(1) This Division applies in relation to gains and losses only to the extent to which they are of a capital nature.82U(2) This Division does not apply to a loss incurred by a taxpayer except to the extent to which, if the loss were not of a capital nature, a deduction would be allowable to the taxpayer under section 51 in respect of the loss.
82U(3) This Division does not apply to a gain made by a taxpayer under a contract except to the extent which, if the taxpayer has incurred a loss under the contract and that loss had not been of a capital nature, a deduction would have been allowable to the taxpayer under section 51 in respect of the loss.
82U(4) This Division applies according to its tenor in relation to gains made and losses incurred before or after the commencement of this Division.
82V(1) In this division, unless the contrary intention appears -
"arrangement" 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, whether unilateral or otherwise;
...
"commencing day" means 19 February 1986;
...
"currency exchange gain" means a gain to the extent to which it is attributable to currency exchange rate fluctuations;
"currency exchange loss" means a loss to the extent to which it is attributable to currency exchange rate fluctuations;
"eligible contract",in relation to a taxpayer, means -
(a) a contract entered into by the taxpayer on or after the
commencing day, other than a hedging contract; or
(b) a hedging contract entered into by the taxpayer, on or after the
commencing day, in relation to a contract to which paragraph
(a) applies;
"hedging contract", in relation to a taxpayer, means a contract that is entered into by the taxpayer for the sole purpose of eliminating or reducing the risk of adverse financial consequences that might result for the taxpayer or an associate of the taxpayer, under another contract, from currency exchange rate fluctuations.
82V(2) For the purposes of this Division -
(a) a currency exchange gain made, or a currency exchange loss incurred, in respect of currency purchased under a contract shall be taken to have been made or incurred under that contract;
(b) a gain shall be taken to have been made, or a loss to have been incurred, at the time when it was realised; and
(c) a reference to a person acquiring rights or obligations arising under a contract is a reference to the person acquiring such rights or obligations otherwise than by reason of having entered into the contract.
82V(3) Subject to sub-section (4), where a taxpayer acquires rights or obligations arising under a contract, this Division applies in relation to the taxpayer as if the contract had been entered into by the taxpayer at the time when, and for the purposes for which, the taxpayer acquired the rights or obligations.
82V(4) Where -
(a) a taxpayer acquires rights or obligations arising under a contract that was (apart from sub-section (3)) entered into before the commencing day; and
(b) the Commissioner is satisfied that the rights or obligations were acquired under or as a result of an arrangement that was entered into or carried out by any person (whether before or after the commencement of this Division) for the purpose, or for purposes that included the purpose, of ensuring that a deduction would be allowable under this Division in respect of a currency exchange loss incurred under the contract,
sub-section (3) does not apply to the acquisition by the taxpayer of the rights or obligations and, if the rights or obligations were acquired by the taxpayer under another contract, that other contract shall be deemed for the purposes of this Division to have been entered into by the taxpayer before the commencing day.
82Y The assessable income of a taxpayer of a year of income shall include any currency exchange gain made by the taxpayer in the year of income under an eligible contract.
82Z(1) Subject to this section, a currency exchange loss incurred by a taxpayer in a year of income under an eligible contract is an allowable deduction in respect of the year of income."
10 The provisions authorising public rulings were inserted into the TA Act by Part 2 of the Amending Act. Essential to the scheme, which contemplated that public rulings would bind the Commissioner, was s 17OBA of the Act, inserted by s 22 of the Amending Act, which provides:
"170BA.(1) In this section:`final tax', in relation to a person, means ruling affected tax payable in relation to the person after allowing:
(a) a credit within the meaning of Division 19 of Part III; or
(b) an offset within the meaning of Division 1 of Part IIIAA;
`ruling affected tax' means:
(a) income tax; or
(b) franking deficit tax within the meaning of Part IIIAA; or
(c) Medicare levy;
but does not include withholding tax;
`withholding tax' includes mining withholding tax.
(2) Expressions used in this section have the same meanings as in Part IVAAA of theTaxation Administration Act 1953.
(3) Subject to section 170BC, if:
(a) there is a public ruling on the way in which an income tax law
applies to a person in relation to an arrangement (`ruled way'); and
(b) that law applies to a person in relation to that arrangement in
a different way; and
(c) the amount of final tax under an assessment in relation to that
person would (apart from this section and section 170BC)
exceed what it would have been if that law applied in the ruled
way;
the assessment and amount of final tax must be what they would be if that law applied in the ruled way."
11 The relevant provisions of the TA Act authorising public rulings are contained in Part IVAAA of that Act. They provide as follows:
"14ZAAA. In this Part, unless the contrary intention appears:`arrangement' includes:
(a) scheme, plan, action, proposal, course of action, course of conduct, transaction, agreement, understanding, promise or undertaking; or
(b) part of an arrangement;
`fringe benefits tax law' means a law under which the extent of liability for tax imposed by the Fringe Benefits Tax Act 1986 is worked out;
`income tax law' means a law under which is worked out the extent of liability for:
(a) income tax, withholding tax, mining withholding tax, or Medicare levy, within the meaning of the Income Tax Assessment Act 1936; or
(b) franking deficit tax within the meaning of Part IIIAA of that Act;
`law' means:
(a) a section or other provision of an Act; or
(b) a regulation under an Act;
`public ruling' means a ruling under section 14ZAAE, 14ZAAF or 14ZAAG;
`tax law' means:
(a) an income tax law; or
(b) a fringe benefits tax law;
`year of income' means:
(a) in relation to an income tax law about franking deficit tax, a franking year; or
(b) in relation to a fringe benefits tax law, a year of tax within the
meaning of the Fringe Benefits Tax Assessment Act 1986.
14ZAAB. For the purposes of this Part, if a contract requiring an arrangement is entered into, the arrangement is taken to begin to be carried out.
14ZAAG. The Commissioner may make a public ruling on the way in which, in the Commissioner's opinion, a tax law or tax laws would apply to a class of persons in relation to a class of arrangements.
14ZAAI.(1) The Commissioner makes a public ruling by publishing it.
14ZAAJ. A public ruling is made when it is published.
14ZAAK.(1) The Commissioner may withdraw a public ruling, either wholly or to an extent, by publishing notice of the withdrawal.
14ZAAL.(1) A public ruling that is wholly withdrawn:
(a) continues to apply the arrangements begun to be carried out before the withdrawal; and
(b) does apply to arrangements begun to be carried out after the withdrawal."
12 Sections 12 and 13 of the Amending Act contained what may be referred to as transitional provisions in relation to the scheme of public rulings. They are in the following terms:
"12.(1) A public ruling under Part IVAAA of the Principal Act [the TA Act] as amended by this Act must not be made before 1 July 1992.(2) In spite of section 14ZAAH of the Principal Act as amended by this Act, a public ruling does not apply to any arrangement within the meaning of section 14ZAAA of that Act as so amended that began to be carried out before 1 July 1992 or, if the commencement of this Act is later, that commencement. [Emphasis added]
13, An application under section 14ZAF or 14ZAG of the Principal Act as amended by this Act:
(a) must not be made before 1 July 1992; and
(b) must not relate to an arrangement (within the meaning of section 14ZAAA of that Act as so amended) that began to be carried out before 1 July 1992 or, if the commencement of this Act is later, that commencement."
THE JUDGMENT APPEALED FROM
13 Lee J dismissed Victoria's appeal.
14 After setting out the facts and relevant statutory provisions his Honour said:
"The terms of Div 3B define the `arrangement' to which TR 93/8 could apply. Under s 82Z the relevant arrangement must involve an `eligible contract'. Therefore, under s 12(2) of the Taxation Laws Amendment (Self Assessment) Act 1992 (Cth), s 14ZAAH must be read as a provision limiting the Commissioner's discretion in respect of the making of a public ruling under s 14ZAAE in respect of Div 3B, to an arrangement involving an eligible contract that began to be carried out on or after 1 July 1992....
By reason of s 12(2) of the Taxation Laws Amendment (Self Assessment) Act 1992 (Cth) the Commissioner was not empowered to issue a public ruling capable of binding the Commissioner under s 170BA in respect of an `eligible contract' that had begun to be carried out before 1 July 1992 and the relevant substantive paragraphs of TR 93/8 (pars 55-65) had to be read accordingly. The `example' recited in pars 78 and 79 of TR 93/8 did not reflect a contract to which pars 55-65 of TR 93/8 could apply in so far as the contract of loan in a foreign currency described therein began before 1 July 1992. The erroneous content of the `example' could not expand the Commissioner's authority beyond that provided by statute.
Counsel for Victoria submitted, however, that repayment in September 1993 of the loan obtained under a contract made in September 1991 was `part of an arrangement' and, therefore, was a circumstance to which a public ruling could be addressed under s 14ZAAE.
That submission begs the question whether Div 3B had any operation in respect of such a `part of an arrangement' and as to what meaning of arrangement as defined in s 14ZAAA of the TA Act was relevant for the purpose of the exercise of the discretion vested in the Commissioner by s 14ZAAE of the TA Act.
Division 3B is concerned with the outcome of a contract and events under a contract that establish that a currency exchange gain or loss has occurred and has been realised. To receive a loan pursuant to a contract is not enough. A currency exchange gain or loss must be made or incurred `under' that contract of loan.
...
Division 3B does not operate on `part' of a contract, for example, the repayment simpliciter of a sum borrowed, divorced from consideration of the balance of the contract. No gain or loss occurs under the contract by reason of that payment alone. That is, conversion to a foreign currency to make the payment under the contract is not an event in itself that involves a currency exchange rate fluctuation under the contract. Division 3B is concerned with the currency exchange gain or loss that arises under an "eligible contract" namely, the net position after receipt and repayment of the loan by currency exchange.
Notwithstanding that the Commissioner's opinion expressed in TR 93/8 (par 57) was incorrect, namely, that a `foreign exchange gain or loss' was realised regardless of whether a taxpayer converted from Australian dollars to discharge a liability in a foreign currency, the Commissioner did not purport to state that such a payment in itself created a currency exchange gain or loss. Under TR 93/8, the Commissioner's position was that the relevant times were the time of creation and time of discharge of a liability in a foreign currency regardless of whether there had been conversion to Australian dollars. The Commissioner was well aware that a gain or loss from a fluctuation in a currency exchange rate depended upon the occurrence of events under a contract in respect of which such a fluctuation could be demonstrated. Where the Commissioner stated that the gain or loss was realised `from [a] liability' it was understood that an antecedent event under a contract had created a liability to pay, subsequent to which a currency exchange rate fluctuation could be identified.
It follows, therefore, that TR 93/8 did not express an opinion on the operation of Div 3B inconsistent with the law, other than in respect of the application of Div 3B to notional conversions. Consequently, TR 93/8 did not purport to apply to a contract of loan that `began' before 1 July 1992. The Commissioner did not intend, nor was he empowered, to issue a public ruling in respect of a currency exchange made under a contract that began before 1 July 1992."
REASONING ON APPEAL
15 At the heart of the controversy lies the proper construction of s 12(2) of the Amending Act and the question of what is the arrangement on which ruling TR/98 was given.
16 It will be observed that s 12(2) limits the power of the Commissioner to rule on an arrangement that began to be carried out before 1 July 1992. It is, therefore, necessary to define, in the present case, what was the arrangement upon which the Commissioner ruled.
17 Senior Counsel for Victoria submitted that the Ruling was on an arrangement as defined in s 14ZAAA of the TA Act, that being an "action" or "transaction" consisting of the discharge of a liability in a foreign currency. It was not a ruling on an arrangement consisting of the incurring of a liability in a foreign currency and its subsequent discharge, such as the borrowing and repayment of a foreign currency loan.
18 Although the definition of "arrangement" in s 14ZAAA of the TA Act, to which s 12 (2) of the Amending Act refers, encompasses both a "scheme" and a "course of conduct" on the one hand and "actions" or "transactions" on the other, it is expressed in this way to give the broadest flexibility to the Commissioner to rule on what may be an arrangement as a whole or some part of an arrangement, as well as a particular act which may give rise to assessable income or an allowable deduction. Thus, to take an example raised in the course of argument, the Commissioner might rule on a single act which could give rise to an allowable deduction under what is now s 8-1 of the Income Tax Assessment Act 1997 (Cth).
19 While the Commissioner could rule on an arrangement which consisted of both a borrowing and a repayment, it was submitted that this is not what the ruling does. The submission was that the ruling was only on the question of the time at which a foreign currency gain or loss arises and not on the question of whether a gain or loss arises. Accordingly, the ruling was not on an arrangement consisting of a borrowing and a repayment.
20 Victoria relied specifically upon clause 10 of the Ruling as meaning that a loss would arise to a taxpayer who both borrowed and discharged that borrowing in a foreign currency, because of the necessity, as perceived by the Commissioner, to convert notionally into Australian dollars the overseas currency both at the time of borrowing and at the time of discharge. The submission was that the act ruled upon was the act of repayment, which would need to have been begun to be carried out, to use the language of s 12 of the Amending Act, on or after 1 July 1992.
21 There are a number of difficulties with the submission. First, it is obvious that clause 10 of the Ruling contemplates that there will, of necessity, have been both a liability created and a discharge or satisfaction of that liability. The act of discharge or satisfaction itself could never give rise to a notional gain or loss of the kind which clause 10 appears to contemplate. As applied to a case like the present there would need to be both a borrowing and a discharge of that borrowing before there could be any relevant loss or gain. It follows for that reason alone, that clause 10 must be directed not at the mere act of discharge but at the arrangement which involves a liability that has been incurred and that has subsequently been discharged or satisfied. In other words, s 12(2) would require that the overall arrangement be one that had begun to be carried out on or after 1 July 1992. However, the present arrangement was in fact commenced to be carried out on 6 September 1991 by the borrowing on that day and could not be the subject of a valid public ruling.
22 Another difficulty for the submission is that the ruling itself purports to be on both the time when a foreign exchange gain or loss was realised under Division 3B and the meaning of "eligible contract" within that Division. So, the present ruling is not a ruling merely on the question of timing but also on the question of timing in circumstances where there is a liability in a foreign currency (which includes a borrowing) under an eligible contract. It follows, therefore, that the ruling could not apply except where the so called loss arising from a notional conversion was a loss under an eligible contract. A ruling, therefore, which dealt with the borrowing must, having regard to s 12(2), apply only to an eligible contract that was entered into on or after 1 July 1992. For it to extend to an eligible contract entered into before that date would mean it was beyond power.
23 Accordingly the appeal should be dismissed with costs.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. |
Associate:
Dated: 8 June 2001
#DATE 08:06:2001
| Counsel for the Appellant: | D H Bloom QC with J R B Ley |
| Solicitor for the Appellant: | Freehills |
| Counsel for the Respondent: | A H Slater QC with L B Price |
| Solicitor for the Respondent: | Australian Government Solicitor |
| Date of Hearing: (Heard in Perth) | 28 May 2001 |
| Date of Judgment: | 8 June 2001 |
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