CATCHWORDS

BANKRUPTCY - provable debts - whether additional tax under s207(1) of Income Tax Assessment Act in respect of income tax assessed after bankruptcy and unpaid is a debt provable in the bankruptcy - whether at the date of bankruptcy s207 tax is a "debt or liability present or future, certain or contingent" to which the bankrupt was subject - whether "certain" - whether s207 tax was a debt or liability to which the bankrupt became subject before discharge by reason of an obligation incurred before the date of bankruptcy - whether s207 tax ceased to be payable on bankruptcy - effect of issue of assessment after date of bankruptcy - whether additional tax should be paid out of surplus in the bankrupt estate - whether analogous to interest - discussion of policy objective of Bankruptcy law; s82 Bankruptcy Act; s207(1) Income Tax Assessment Act.

Bankruptcy Act 1966: ss82, 153, 178

Income Tax Assessment Act 1936: ss166-170, 204, 207, 208

Ex parte Llynvi Coal & Iron Co; Re Hide (1871) LR 7 Ch 28; discussed.

Re Brealey (1900) 26 VLR 209; referred to.

Re Mendonca; Ex parte Commissioner of Taxation (1969) 15 FLR 256; applied.

Community Development Pty Ltd v Engwirda Construction Co (1969) 120 CLR 455; distinguished.

Official Trustee in Bankruptcy v CS & GJ Handby Pty Ltd (1989) 7 ACLC 1070; applied.

Re Hyman & Anor; Ex parte Law (1930) 3 ABC 61; discussed.

Mackenzie v Rees (1941) 65 CLR 1; discussed.

Ellis and Co's Trustee v Dixon-Johnson [1924] 1 Ch 342, aff'd [1924] 2 Ch 451; distinguished.

RE VERA KAVICH v OFFICIAL TRUSTEE IN BANKRUPTCY AND DEPUTY COMMISSIONER OF TAXATION

No NB118 of 1978

HILL J

SYDNEY

30 JUNE 1995

IN THE FEDERAL COURT OF AUSTRALIA     )

GENERAL DIVISION                      )

BANKRUPTCY DISTRICT OF THE            )  No. NB118 of 1978

STATE OF NEW SOUTH WALES                   )

              RE:       VERA KAVICH

                             Debtor

                        VERA KAVICH

                             Applicant

              AND:      THE OFFICIAL TRUSTEE IN BANKRUPTCY

                             First Respondent

                        DEPUTY COMMISSIONER OF TAXATION

                             Second Respondent

CORAM:    HILL J

PLACE:    SYDNEY

DATED:    30 JUNE 1995

                      MINUTES OF ORDER

THE COURT DECLARES THAT:

     (1)  The Deputy Commissioner is not entitled to prove in the bankrupt estate of Vera Kavich for additional tax of $239,915.58 sought to be imposed by way of late payment penalties for failure to pay income tax the subject of assessments or amended assessments issued on 27 November 1978.

     (2)  That no part of the said additional tax under s207 which is not admitted as a debt in the applicant's bankrupt estate can be paid out of surplus in that estate.

THE COURT ORDERS THAT:

     (3)  The application brought by the Deputy Commissioner of Taxation be dismissed.

     (4)  The Deputy Commissioner of Taxation pay the costs of Mrs Kavich in both applications.

Note:     Settlement and entry of orders is dealt with in Rule 124 of the Bankruptcy Rules.

IN THE FEDERAL COURT OF AUSTRALIA     )

GENERAL DIVISION                      )

BANKRUPTCY DISTRICT OF THE            )  No. NB118 of 1978

STATE OF NEW SOUTH WALES                   )

              RE:       VERA KAVICH

                             Debtor

                        VERA KAVICH

                             Applicant

              AND:      THE OFFICIAL TRUSTEE IN BANKRUPTCY

                             First Respondent

                        DEPUTY COMMISSIONER OF TAXATION

                             Second Respondent

CORAM:    HILL J

PLACE:    SYDNEY

DATED:    30 JUNE 1995

                    REASONS FOR JUDGMENT

          On 28 February 1978 Mrs Kavich became a bankrupt.  In consequence her estate vested in the Official Trustee in Bankruptcy.  The parties agree, for the purposes of the present proceeding, that as a result of her bankruptcy there vested in the Official Trustee, inter alia, a share or shares in a company, Antlers Pty Ltd, which is now in liquidation.  It appears that the shares in that company are valuable and that, in due course, when the liquidation of that company is completed the shareholders will receive a substantial liquidation distribution.

          On 27 November 1978 the Commissioner of Taxation issued assessments under the Income Tax Assessment Act 1936 ("the Tax Act") in respect of the years of income ended 30 June 1972, 1974, 1975 and 1976 as well as an amended
 assessment of income tax for the year ended 30 June 1973.  At that time no payment had been received in respect of the original assessment of income tax for the year ended 30 June 1973 that had been issued on 4 July 1974.  The total amount of income tax stated to be payable pursuant to the assessments issued on 27 November 1978 was $368,062.17.

          On 20 August 1992 the Deputy Commissioner of Taxation lodged a proof of debt in the estate in the amount of $338,448.98.  The amount claimed included the sum of $239,015.58 described as "additional tax for late payment".  This was the amount claimed, at the time the proof was lodged, to be payable to the Commissioner pursuant to the provisions of s207 of the Tax Act.

          On 1 March 1981 Mrs Kavich obtained a discharge from her bankruptcy.

          The Official Trustee did not admit the proof of debt.  Nor did he reject it.  In consequence two applications were made to the Court: one by Mrs Kavich and one by the Deputy Commissioner.  These applications were made pursuant to s178 of the Bankruptcy Act 1966 ("the Act") by way of an appeal to the Court from the failure of the Trustee to determine whether to admit the Deputy Commissioner's proof of debt for the amount of tax payable under s207.  The Official
Trustee submits to any order which the Court may make except as to costs.

          The dispute is thus one between Mrs Kavich on the one hand and the Commissioner on the other, as to whether additional tax under s207 of the Tax Act is a debt provable in the bankruptcy as the Commissioner submits or, in the Commissioner's alternative submission, whether even if it be not a debt provable in the bankruptcy, it is to be paid out of the surplus in the bankrupt estate which will arise when the proceeds of the liquidation distribution are ultimately received.  I should mention that but for these proceeds, the only amount realised in the estate was the sum of $200 and the estate was otherwise hopelessly insolvent.

          Section 82(1) of the Act provides:

          "Subject to this Division, all debts and liabilities, present or future, certain or contingent, to which a bankrupt was subject at the date of the bankruptcy, or to which he may become subject before his discharge by reason of an obligation incurred before the date of the bankruptcy, are provable in his bankruptcy."

          Where a debt by reason of being subject to a contingency or which, for some other reason does not bear a certain value, s82(4) permits the Trustee to make an estimate of the value of the debt or liability.  If, however, the value of the debt or liability cannot be fairly estimated, the debt is deemed not provable in the bankruptcy: s82(6).

          There is no definition of "debt" specified in s82 and the definition in s5(1) as including liability clearly adds nothing to the section.  There is a definition of "liabilities", for the purposes of s82, but no reliance was placed upon it.

          Section 207 of the Tax Act forms part of a group of sections concerned with the collection and recovery of income tax.  The power of the Commissioner to make assessments of income tax is to be found in ss166-169.  The power to make amended assessments arises under s170 of that Act.  Once an assessment is made the Commissioner is required by s174 to serve notice in writing upon the person liable to pay the tax.  Section 204 then provides that the tax assessed shall:

          "... be due and payable by the person liable to pay the tax on the date specified in the notice as the date upon which tax is due and payable, not being less than 30 days after the service of the notice, or, if no date is so specified, on the thirtieth day after the service of the notice."

          The Commissioner has power to extend the time for payment of the tax or permit payment of the tax to be made by instalments: s206(1).

          It is in this context that s207(1) provides as follows:

          "If any tax remains unpaid after the time when it became due and payable or would, but for section 206, have become due and payable, additional tax is due and payable by way of penalty by the person liable to pay the tax at the rate of ... per annum on the amount unpaid, computed from that time or, where, under section 206, the Commissioner has granted an extension of time for payment of the tax or has permitted payment of the tax to be made by instalments, from such date as the Commissioner determines, not being a date prior to the date on which the tax was originally due and payable."

          I have omitted the rate stated in the section because that rate has changed from time to time and did change during the relevant period.

          Section 207(1A) empowers the Commissioner to remit the additional tax or part of it.

          Section 207(2) provides that the Commissioner may sue for recovery of "any tax unpaid" immediately after the expiry of the time when it becomes due and payable.

          Finally it should be mentioned that s208(1) provides:

          "Income tax when it becomes due and payable shall be a debt due to the Commonwealth, and payable to the Commissioner in the manner and at the place prescribed."

          For the Commissioner it was submitted that the tax under s207 of the Act was a debt or liability present or future, certain or contingent, to which Mrs Kavich at the date of bankruptcy was subject.  Alternatively it was submitted that the tax under s207 was a debt or liability to which Mrs Kavich might become subject before her discharge by reason of an obligation incurred before the date of the bankruptcy.

          Senior Counsel for Mrs Kavich denied that the s207 tax fell within the class of provable debts.  He submitted further that once it was decided that the s207 tax was not a provable debt it could not be payable, as the Commissioner submitted in the alternative, out of the estate of Mrs Kavich by analogy to debts for interest both because the analogy was not perfect and because, at least from the time Mrs Kavich was discharged from bankruptcy the s207 tax ceased to be payable, even if it otherwise accrued due.

          The issues between the parties can be reduced to four questions.

(1)  Whether at the date of bankruptcy the s207 tax the subject of the Commissioner's proof was a debt or future
liability, whether certain or contingent to which Mrs Kavich was subject at the date of bankruptcy.

(2)  If not, whether the s207 tax was a debt or liability to which Mrs Kavich became subject before discharge by reason of an obligation incurred before the date of bankruptcy.

(3)  Whether s207 tax ceased to be payable, either at the date of bankruptcy or on discharge from bankruptcy.

(4)  Whether s207 tax should, even if not provable, be payable out of Mrs Kavich's bankrupt estate by analogy to interest.    

          Before dealing with these questions it may be useful to refer to some general considerations.

          The broad policy of the bankruptcy law is twofold.  First, it enables an insolvent debtor to be freed from all liabilities of every kind so that he or she may start again unburdened by them.  Second, it enables the assets of an insolvent debtor to be collected and distributed rateably among the creditors.  It is in aid of both these policies that bankruptcy law requires that the debts or liabilities due to a creditor are, as at the date of bankruptcy, converted into rights to prove in the bankrupt's estate and to have an aliquot share of that estate distributed.  It follows from this broad policy, as James LJ observed in Ex parte Llynvi Coal & Iron Co; Re Hide (1871) LR 7 Ch 28 at 31:

          "Every possible demand, every possible claim, every possible liability, except for person torts, is to be the subject of proof in bankruptcy... The broad purview of this Act is, that the bankrupt is to be a freed man...".

          Consistent with this broad policy it might be expected that, at least to the extent that the bankrupt estate is inadequate to meet it, additional tax for non payment of income tax in respect of income derived during the period before bankruptcy but remaining unpaid as at the date of payment would, like the income tax itself, cease to be a debt of a bankrupt and be discharged, at the latest by the discharge of the bankrupt from his or her debts.

          Income tax assessed prior to the date of bankruptcy is clearly a debt of the bankrupt and by force of the bankruptcy is converted into a claim for proof and to the extent that the estate is unable to meet all claims of creditors is released by the discharge: s153(1) of the Act.  If, subsequent to discharge, additional assets come into the hands of the Trustee in bankruptcy the discharged debt is treated as a liability of the estate, payable out of it, for the release under s153(1) operates only to release the former bankrupt and not to release the estate: Re Brealey (1900) 26 VLR 209, Tarea Management (North Shore) Pty Ltd (in liq) v Glass (1991) 9 ACLC 579 at 584.

          The same result follows notwithstanding that the income tax in respect of the period prior to the date of bankruptcy had not been assessed as at the date of bankruptcy; Re Mendonca; Ex parte Commissioner of Taxation (1969) 15 FLR 256.  Although some of the reasoning in Clyne v Deputy Commissioner of Taxation (1981) 150 CLR 1 might cast doubt on what was said in Re Mendonca, the case is authority for the proposition that income tax, properly so called, is a debt due as at the end of the last day of the year of income, even if not then assessed.  The tax is imposed by statute; assessment is merely a method of ascertaining the extent of the liability.  Even if income tax only became a debt due upon assessment there would seem little doubt that it would be, looked at as at the date of bankruptcy, a provable debt being a debt to which the bankrupt might become subject before discharge by reason of an obligation arising under the Tax Act or the Act imposing income tax incurred before the date of the bankruptcy.

          It would be a strange outcome if a bankrupt were relieved of the obligation to pay income tax arising from income derived during a year of income prior to the bankruptcy, but the liability for additional tax for the non payment of that income tax continued to accrue, so that upon discharge from bankruptcy the Commissioner could proceed to bankrupt the discharged bankrupt for non payment of the additional tax under s207.  Similarly it would be strange if, the estate ultimately being shown to be adequate to pay creditors in full, the fact of bankruptcy and discharge would deprive the Commissioner of the additional tax which would have been payable if bankruptcy had not intervened.

          However, the questions for determination must be decided by reference to the language of the relevant statutes, rather than by resort to consequences which, if considered at all by the legislature, would appear to produce injustice either to a former bankrupt or to the Commissioner.

1.   Whether s207 tax is a debt etc to which Mrs Kavich was subject as at the date of bankruptcy?

          It was the Commissioner's submission that the s207 tax was a "future debt or liability" to which Mrs Kavich was subject as at the date of bankruptcy.  It was said that the obligation to pay the additional tax under s207 was imposed by the section itself and was an obligation to pay "until and unless the income tax is paid".  It was said that the obligation imposed was certain and that all that was uncertain was the quantum of tax ultimately payable.  In the alternative it was said that the s207 tax was, if not "certain", in any event a contingent future liability.  On this alternative there was, it was submitted, a present obligation imposed by s207 (with ss204 and 208) under which the debtor would become subject to a present liability upon the happening of a future event, namely non payment of income tax.

          It is critical to either alternative argument that the s207 tax be, as at the date of bankruptcy, a debt or liability to which Mrs Kavich was subject at the date of bankruptcy.  I have difficulty in fitting the additional tax which might be imposed by the Tax Act after bankruptcy within the concept of a liability to which Mrs Kavich was subject as at the date of bankruptcy.  Clearly, at best it would be a liability which was contingent, rather than certain, so that the initial submission can not be supported.

          It may be said in a general way that the Tax Act imposed upon Mrs Kavich as at the date of bankruptcy, in like way to that which it imposes on every taxpayer, an obligation to pay s207 tax if the prerequisites to that section were thereafter made out.  But it is not that general obligation which could be provable.  Rather no debt or liability which could be provable would arise until the prerequisites of s207 were satisfied.  That is to say, it is only where income tax has been assessed, so that a time for payment arises and that tax remains unpaid after that time that the Tax Act operates to impose additional tax.

          The case of Community Development Pty Ltd v  Engwirda Construction Co (1969) 120 CLR 455 to which I was referred affords the Commissioner, in my opinion, no assistance.  The issue in that case was whether money payable under a building contract, where the parties were in dispute as to whether the work under the contract had been properly performed, was such as to make the builder a contingent creditor entitled to petition for the winding up of the owner.  Kitto J, with whom Barwick CJ and Windeyer J agreed said (at 459):

          "Not much assistance is to be gained, I think, from observations that are to be found in reported cases as to the import of the word `contingent', and I shall refer to one only.  In In re William Hockley Ltd Pennycuick J suggested as a definition of `a contingent creditor' what is perhaps rather a definition of `a contingent or prospective creditor', saying that in his opinion it denoted `a person towards whom, under an existing obligation, the company may or will become subject to a present liability upon the happening of some future event or at some future date'.  The importance of these words for present purposes lies in their insistence that there must be an existing obligation and that out of that obligation a liability on the part of the company to pay a sum of money will arise in a future event, whether it be an event that must happen or only an event that may happen.  A building contract creates, as soon as it is entered into, an obligation upon the building owner to pay the contract price, either as a whole upon a future event or, more usually, by progress and final payments each of which is to be made on a future event.  The event or events may not happen, but if and when one of them does happen the building owner, by force of the contractual obligation, must pay the builder a sum of money ... the building owner is bound from the time the contract is made to pay money to the builder upon a contingency; and that in my opinion makes the builder a contingent creditor of the owner."

          In my view there is a significant difference between an obligation to pay s207 tax and the obligation of an owner to pay monies under a building contract.  In the latter case as the passage cited shows, the obligation exists from the date of the contract, notwithstanding that it is contingent upon work being performed under the contract (and as in that case the award of an arbitrator in the event of dispute).  However, no obligation at all arises for payment of s207 tax unless and until there has been a failure to pay income tax which has become due and payable.  In my view, s207 tax was not a debt or liability, whether certain or contingent, to which Mrs Kavich was subject as at the date of bankruptcy because the obligation to pay it arose only after the date of bankruptcy. 

2.   Whether s207 tax is a debt or liability to which Mrs Kavich became subject before discharge by reason of an obligation incurred before the date of bankruptcy.

          There is no doubt, subject to the answer to the third question, that on the facts of the present case s207 tax became payable as soon as the due date for payment of the income tax, assessed after the date of bankruptcy, passed.  That liability continued thereafter until the date of discharge.  The answer to this question must, therefore, depend upon whether Mrs Kavich became subject to the s207 tax by reason of an obligation incurred before the date of bankruptcy.

          In support of the submission that she did, Senior counsel for the Commissioner referred to Official Trustee in Bankruptcy v CS & GJ Handby Pty Ltd (1989) 7 ACLC 1070 in support of the proposition, which I accept, that the category of provable debts is not limited to debts in contract or tort, but that the reference to the word "incurred" extends to debts or liabilities arising by statute.  Thus in that case it was held that a claim under the then s556 of the Companies Code against a director of a company was capable of being a provable debt.  It may be correct to say, in accordance with what was said by the Supreme Court of Victoria in State of Victoria v Hansen [1960] VR 582, that pecuniary obligations are to be treated as incurred under an implied contract to pay.  But whether or not that be the case I see no difficulty in referring to income tax, assessed under the Tax Act and imposed under an Act imposing taxation, as being an obligation incurred.  That, however, is not the end of the matter.

          The short question which remains is whether it is correct to describe the s207 tax as being a debt or liability to which Mrs Kavich became subject by reason of the obligation imposed upon her to pay income tax which she clearly incurred on the authority of Re Mendonca before she had become bankrupt.  It can with force be argued that while the liability for income tax is a sina qua non for the liability to additional tax to arise, the s207 liability really arises by virtue of the non payment of the income tax, rather than by virtue of the obligation to pay income tax itself.  On balance I am inclined to the view that the Commissioner's argument should be accepted, subject however, to the answer to the third question.  The broad policy of the bankruptcy legislation suggests that a wide interpretation should be given to s82 and that the categories of provable debts should not be unduly confined.  Thus I think the fact that a liability arises both because of an obligation incurred before bankruptcy and the happening of an event after bankruptcy should not be taken to exclude the liability from the broad purview of s82.  The liability is still incurred "by reason of an obligation incurred before the bankruptcy".

3.   Whether s207 tax ceased to be payable on bankruptcy

          For Mrs Kavich it was submitted that additional tax could only become payable if there was a failure to pay the income tax to which it related and which had become due and payable.  However, it was said that on bankruptcy (or perhaps as at the moment of assessment of the income tax) the obligation of Mrs Kavich to pay to the Commissioner income tax ceased and the right of the Commissioner to recover it was converted into a right to prove in the estate.  Thus there was no time at which any income tax remained unpaid after it became due and payable, nor was Mrs Kavich at any time a person "liable to pay" income tax to the Commissioner.  In my view the submission is correct.

          Where an assessment had issued before the bankruptcy the result is that upon the bankruptcy the income tax payable in accordance with the notice of assessment would cease to be payable, with the consequence that the additional tax liability as and from the date of the bankruptcy ceases.  Thus the inconvenient result that notwithstanding that the income tax was no longer payable the s207 tax would continue to accrue (it not being in the submission of Mrs Kavich a provable debt) is avoided.

          Where the assessment issued after the bankruptcy the question becomes more complicated.  Section 204 specifies that income tax becomes due and payable on the date stipulated in the notice of assessment after service or if no date be stipulated, on the thirtieth day after service.  As income tax (at least once ascertained) is a provable debt the assessment constitutes the act of ascertainment.  But at least from the very moment of assessment (perhaps before, if re Mendonca is taken to its logical conclusion) the tax is converted into a right to prove in the bankruptcy.  It can no longer be correctly described as a debt payable by the bankrupt to the Commissioner.  It may be argued that in such a case, by force of s204, it never becomes a debt payable to the Commissioner, although so to argue is to fly in the face of the express words of s204.  In any event s204 must be construed together with the relevant provisions in the Bankruptcy Act in a case such as the present.

          Since the income tax as assessed is not a debt which the bankrupt in such a case is liable to pay to the Commissioner, there can never be a failure by the bankrupt to pay income tax with the result that there never arises a liability to pay the tax otherwise imposed by s207.  Upon discharge from bankruptcy the debt for income tax is discharged with the consequence that there will be no point of time when a liability to s207 tax will arise.

4.   Whether s207 tax should be treated as analogous to interest.

          Having regard to my views on the last question it is unnecessary to answer this question.  However, as the matter was argued it is desirable that I note the submission shortly.

          It was accepted by both parties that s207 tax is not itself interest: DTR Securities v Deputy Commissioner of Taxation (1987) 8 NSWLR 204 at 208, Re Dymond (1959) 101 CLR 11 at 22.  For this reason s83(3B) of the Act could have not application to it.  In any event the section post dates the present events.

          The submission, shortly put, was that under the common law of bankruptcy interest on an obligation was not admitted to proof but was deferred until all other debts had been paid and was then payable out of the residue of the bankrupt estate: Re Hyman & Anor; Ex parte Law (1930) 3 ABC 61 and cases there cited.  The history of the common law rule and its subsequent statutory adoption is to be found in the judgment of Dixon J in Mackenzie v Rees (1941) 65 CLR 1 at 8-12.  So, it was said, tax under s207 should, as a matter of common law, be held payable out of the estate of the bankrupt after discharge to the extent that the estate has assets to pay the tax.  The common law rule has, however, only applied to interest.  Interest, it can be argued, is generally a present obligation to pay in the future, and so characterised it would be a provable debt.  But it does not seem to me that there is support for a rule that under existing bankruptcy law a debt which is not provable could or should be payable out of the surplus in a bankrupt's estate.  If s207 tax ever became payable and was a provable debt it would be payable rateably out of the estate.  If, on the other hand, s207 tax never became payable and hence was never a provable debt, then in my view there could be no authority for the Trustee in Bankruptcy to pay it out of the estate, whether before or after the debts of other creditors have been paid.

          Senior counsel for Mrs Kavich also submitted that even if s207 tax did become payable and otherwise was a provable debt it could not be so regarded because it could not fairly be estimated.  The time for estimating the value of a debt is the date of bankruptcy: Ellis & Co's Trustee v Dixon-Johnson [1924] 1 Ch 342 at 356-7 aff'd [1924] 2 Ch 451 (CA) and [1925] AC 489(HL).  Where income tax has been assessed after the bankruptcy it would be impossible to ever estimate the amount of s207 tax.  Not only would the commencement date for the imposition of the tax be unknown but so too would the final date for computation.  While as at the date of bankruptcy, it can fairly be assumed that income tax determined in accordance with the Tax Act will at some time be assessed and that an insolvent debtor will not pay it, if only because it is no longer payable to the Commissioner after the bankruptcy, the date of discharge can not safely be estimated.  Perhaps the statutory period of discharge could, in most cases be assumed, although circumstances might well intervene to extend that period.  Likewise, if all debts were  paid in full, the bankruptcy might be terminated by annulment.

          I note that, in Ellis & Co's Trustee it was accepted that if a contingency to which the debt was subject occurred before proof, that fact was pro tanto evidence of the true value of the claim as at the date of the bankruptcy, so that no difficulty with valuation arose (cf however per Lord Warrington in [1924] 2 Ch 451 at 471).  But that is quite different from the present case.  Accordingly there is considerable force in the submission that even if s207 tax became payable in a case such as the present it could never be a provable debt because as at the date of bankruptcy it could never be fairly estimated.

          I am accordingly of the view that the Trustee was not entitled to admit the Commissioner's proof of debt for the s207 tax.  Nor would the Trustee be entitled to make payment of any amount on account of that tax out of the estate.  The costs of Mrs Kavich should be paid by the Commissioner.

I certify that this and the

preceding nineteen (19) pages

are a true copy of the Reasons

for Judgment herein of his Honour

Justice Hill.

Associate:

Date:  30 June 1995

Counsel and Solicitors       D Grieve QC with RW Cameron

for Applicant:               instructed by Dominic Stamfords

Counsel and Solicitors       AH Slater QC with P Sharp

for Respondent:              instructed by Australian Government Solicitor

Dates of Hearing:            1 June 1995.

Date Judgment Delivered:          30 June 1995