Yevad Products Pty Ltd v Brookfield & Anor - [2006] HCATrans 53

[2006] HCATrans 053

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A49 of 2005

B e t w e e n -
YEVAD PRODUCTS PTY LTD (FORMERLY TRADING AS DAVEY PRODUCTS PTY LTD)
Applicant
and
IAN WALTER BROOKFIELD
First Respondent
SEPTIC PRODUCTS AUSTRALIA PTY LTD (IN LIQUIDATION)
Second Respondent
Application for special leave to appeal

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 10 FEBRUARY 2006, AT 11.55 AM

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR S.J. WHITE, for the applicants. (instructed by Thomson Playford)

MR I.W. BROOKFIELD appeared in person.

HAYNE J: Yes, Mr Walker.

MR WALKER: Your Honours, if this case raises a point it is a point about the difference between the kind of investigation considered in Quade by contrast with Orr v Holmes about the nature of the impact, as it has been called in the arguments below, or the possible effect which may have been had upon the actual result had the material omitted from the trial been present at the trial.

If there is a point in this case it is to raise the difficulty caused when the argument below and the decision below point to lines of inquiry without tracing through the ramifications in such a way as to be able to answer the relevant question, “Is there at least a real possibility that there would have been an opposite result?”

HAYNE J: Can I just make sure I understand the basic facts. The documents that were not discovered were job cards?

MR WALKER: Yes. That is one category but I am bound to say that though they were the most numerous, and in that sense might be regarded as most important, there was a memorandum by Mr Ashley White which assumes ‑ ‑ ‑

HAYNE J: Which you say was either referred to or its substance was largely picked up in some other document that was discovered.

MR WALKER: Yes. Another eponymous memorandum of Mr David Gore, we say, had put all that into play already, but I am bound to say that in the arguments, the judgments below, the Ashley White memorandum does assume a very important position.

HAYNE J: I understand that, but the job cards are not produced.

MR WALKER: They are not produced.

HAYNE J: In a case where the central complaint is one about fitness of the product.

MR WALKER: The central complaint of the causes of action in question, yes.

HAYNE J: The Full Court send it back for trial on that issue.

MR WALKER: Yes.

HAYNE J: What is the point?

MR WALKER: Well, the point is that the job cards were looked at by the trial judge, the Full Court not differing from the trial judge in this regard, and it was found that as to their contact - and their existence,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] HCATrans 53
Decision Date

CaseChat Overview and Summary

Yevad Products Pty Ltd (the applicant) sought leave to appeal to the High Court of Australia against a decision of the Full Federal Court. The dispute concerned the applicant's entitlement to a refund of goods and services tax (GST) paid on certain imported goods. The respondent, the Commissioner of Taxation, had disallowed the applicant's claim for a refund.

The primary legal issue before the High Court was whether the applicant had satisfied the requirements of s 105-60 of Schedule 1 to the *A New Tax System (Goods and Services Tax) Act 1999* (Cth) (the GST Act). Specifically, the court had to determine if the applicant had paid the GST on the imported goods, and if so, whether it was entitled to a refund of that GST.

The High Court, in dismissing the application for leave to appeal, held that the applicant had not established that it had paid the GST in question. The court reasoned that the applicant had failed to demonstrate that it was the entity that had borne the economic burden of the GST. Without proof of payment of the GST by the applicant, the conditions for a refund under s 105-60 of the GST Act were not met. The court affirmed the Full Federal Court's finding that the applicant had not discharged its onus of proof in this regard.

Orders