Chippendale Printing Co Pty Ltd v Deputy Commissioner of Taxation (No 2) [1995] FCA 567

CATCHWORDS

TAXATION - sales tax - alleged overpayment by manufacturer of sales tax - whether "passing on" provision of sales tax legislation denies a taxpayer a right of refund or recovery for tax overpaid under general law principles - whether the statutory remedial regimes are an exclusive "code" of remedies available in a case of "mere overpayment".

CORPORATIONS - statutory demand - alleged overpayment by company of sales tax - whether counterclaim, set-off or cross-demand by company against Commissioner for amount of overpayment.

Sales Tax Assessment Act (No 1) 1930, s 26.

Sales Tax Procedure Act 1934, ss 12A and 12C.

Taxation Administration Act, 1953.

Sales Tax Assessment Act, 1992 s 51.

Otto Australia Pty Ltd v Commissioner for Taxation (1990) 25 FCR 257 (FCA, Lockhart J).

Otto Australia Pty Ltd v Commissioner for Taxation (1991) 28 FCR 477 (FCA/FC).

Precision Pools Pty Ltd v Commissioner of Taxation (1992) 37 FCR 554 (FCA/Spencer J).

Comptroller-General of Customs v Kawasaki Motors Pty Ltd (No 2) (1991) 32 FCR 243 (FCA/FC).

David Securites Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353.

Commissioner of State Revenue v Royal Insurance Ltd (1994) 126 ALR 1 (HC).

CHIPPENDALE PRINTING CO PTY LTD v DEPUTY COMMISSIONER OF TAXATION (No 2)

No NG 3388 of 1994.

CHIPPENDALE PRINTING CO PTY LTD v THE COMMONWEALTH OF AUSTRALIA (No 2)

No NG 147 of 1995

Lindgren J

Sydney

4 August 1995

IN THE FEDERAL COURT OF AUSTRALIA)

NEW SOUTH WALES DISTRICT REGISTRY)

GENERAL DIVISION )

No NG 3388 of 1994

IN THE MATTER OF: CHIPPENDALE PRINTING CO PTY LTD

AUSTRALIAN COMPANY NO: 001 265 372

BETWEEN:

CHIPPENDALE PRINTING CO PTY LTD (ACN 001 265 372)

Applicant

AND:

DEPUTY COMMISSIONER OF TAXATION

Respondent

No NG 147 of 1995

BETWEEN:

CHIPPENDALE PRINTING CO PTY LTD (ACN 001 265 372)

Applicant

AND:

THE COMMONWEALTH OF AUSTRALIA

First Respondent

COMMISSIONER OF TAXATION

Second Respondent

CORAM: Lindgren J

PLACE: Sydney

DATE: 4 August 1995

MINUTE OR ORDERS

THE COURT IN PROCEEDINGS NO:

NG 3388 of 1994

Chippendale Printing Co Pty Ltd v Deputy Commissioner of Taxation.

1. ORDERS that the respondent's statutory demand dated 19 July 1994 in the sum of $194,472.48 be varied by substitution of the figure of $185,992.93 for $194,472.48 wherever that figure appears, and by alteration of page 2 of the demand in conformity with the schedule to these orders, and that time for compliance with the demand as so varied be extended to 21 August 1995.

2. DECLARES that the said demand had effect, as varied by Order 1 and the schedule to these orders, as from the date when the demand was served on the applicant.

3. ORDERS that the application otherwise be dismissed.

4. ORDERS that the applicant pay the respondent's costs.

NG 147 of 1995

Chippendale Printing Co Pty Ltd v The Commonwealth of Australia & Anor.

1. ORDERS that the order made on 5 May 1995 that certain questions be decided separately from any other question in the proceedings be set aside.

2. ORDERS that on the facts in paras (a), (b), (d), (e), (f) and (g) below ("the Agreed Facts") being agreed to by the parties, questions 1 and 2 below be decided separately from any other question in the proceedings on the assumption that the facts alleged by the applicant and referred to in para (c) below are true ("the
Assumption"):

(a) The applicant was during the period 1 July 1991 to 31 December 1992 ("the first period") and during the period 1 January 1993 to 30 June 1994 ("the second period") a manufacturer of goods ("the subject goods") which it sold by retail.

(b) In respect of the sales of the subject goods made during each of the first period and the second period the applicant paid sales tax to the second respondent.

(c) The applicant alleges that by reason of a mistake on its part the applicant paid to the second respondent in each of the first period and the second period an amount of sales tax which, by an amount ("the overpaid sales tax"), was in excess of the amount which under applicable sales tax legislation it was required to pay in respect of its sales of the subject goods.

(d) The sales tax so paid by the applicant to the second respondent (including the allegedly overpaid sales tax) was passed on by the applicant to the purchasers of the subject goods and has not been refunded by the applicant to the purchasers to whom it was passed on.

(e) The basis upon which the applicant calculated its sales tax liability in respect of the subject goods was not at the time of payment disclosed or known to the second respondent.

(f) The applicant has made an application to the second respondent under the sales tax legislation applicable during each of the first period and the second period for a refund of the overpaid sales tax.

1. On the basis of the Agreed Facts and the Assumption, do the provisions of the sales tax legislation applicable to sales of the subject goods during the first period deny to the
applicant any entitlement it may have to a refund or to recovery from the respondents or either of them of the overpaid sales tax paid in respect of the subject goods sold by the applicant in the first period?

2. On the basis of the Agreed Facts and the Assumption, do the provisions of the sales tax legislation applicable to sales of the subject goods during the second period deny to the applicant any entitlement it may have to a refund or to recovery from the respondents or either of them of the overpaid sales tax paid in respect of the subject goods sold by the applicant in the second period?

3. ORDERS that question 1 above be answered "yes".

4. ORDERS that question 2 above be answered "yes".

5. ORDERS that the application be dismissed.

6. ORDERS that the applicant pay the respondents' costs of the proceedings.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ATTACHMENT TO ORDER OF LINDGREN J MADE ON 4 AUGUST 1995

IN PROCEEDINGS No NG 147 of 1995

Para 35 of affidavit of Edwin Murrell Gardiner sworn 30 November 1994 in the proceedings No NG 3388 of 1994:

"35.Once the Deputy Commissioner for Taxation has determined whether the Applicant is entitled to a refund, the period over which that entitlement arises and the exact amount of refund due to the Applicant, the Applicant will pass these refunds on to its clients."

Para 1 of affidavit of Edwin Murrell Gardiner sworn 1 March 1995 in proceedings No NG 147 of 1995:

"1. If either the Deputy Commissioner of Taxation or the Court finds that Chippendale Printing Co Pty Limited ('Chippendale') has over paid sales tax for some or all of the 1992, 1993 and 1994 income years and determines the amount, but a pre-condition of Chippendale receiving a refund is that it has first refunded the amounts which it has passed on to its customers, Chippendale undertakes to refund such amounts to its customers before it receives the refund from the Commissioner."

IN THE FEDERAL COURT OF AUSTRALIA)

NEW SOUTH WALES DISTRICT REGISTRY)

GENERAL DIVISION )

No NG 3388 of 1994

IN THE MATTER OF: CHIPPENDALE PRINTING CO PTY LTD

AUSTRALIAN COMPANY NO: 001 265 372

BETWEEN:

CHIPPENDALE PRINTING CO PTY LTD (ACN 001 265 372)

Applicant

AND:

DEPUTY COMMISSIONER OF TAXATION

Respondent

No NG 147 of 1995

BETWEEN:

CHIPPENDALE PRINTING CO PTY LTD (ACN 001 265 372)

Applicant

AND:

THE COMMONWEALTH OF AUSTRALIA

First Respondent

COMMISSIONER OF TAXATION

Second Respondent

CORAM:Lindgren J

PLACE:Sydney

DATE: 4 August 1995

REASONS FOR JUDGMENT (No 2)

NATURE OF PROCEEDINGS

In proceedings No NG 3388 of 1994 ("the statutory demand
proceedings") the applicant ("Chippendale") seeks an order under s 459H, alternatively s 459J, of the Corporations Law ("the Law") setting aside a statutory demand of the respondent ("the Commissioner") as creditor. I gave Reasons for Judgment in the statutory demand proceedings on 3 February 1995 (see (1995) 13 ACLC 229). I will assume that they have been read. As will appear below, orders disposing of those proceedings have not yet been made.

In proceedings No NG 147 of 1995 ("the recovery proceedings") Chippendale seeks to recover an amount of sales tax which it claims it overpaid. It asserts that it overpaid either $423,383.00 or $480,929.00 (according to which of two methods of calculation should be used). On 5 May 1995 I ordered that in the recovery proceedings two questions be decided separately from any other question in those proceedings and published reasons for so ordering. I will assume that those Reasons for Judgment have also been read.

In the statutory demand proceedings, pursuant to leave, the parties have made supplementary submissions since I published my Reasons for Judgment on 3 February 1995. A factor which favoured the making of the order for separate decision of questions of law in the recovery proceedings was that these further submissions in the statutory demand proceedings dealt with issues which arise in the recovery proceedings and remained to be addressed by me. Indeed, the parties have agreed that the supplementary submissions in the statutory demand proceedings are also to be taken as their submissions on the questions set aside for separate decision in the recovery proceedings.

Some inadequacies have come to light in the terminology of the order for separate decision which I made on 5 May 1995. By consent of the parties, I will now revoke that order and make the following order in its place:

AN ORDER THAT, the facts in paras (a), (b), (d), (e), (f) and (g) below ("the Agreed Facts") being agreed to by the parties, questions 1 and 2 below be decided separately from any other question in the proceedings on the assumption that the facts alleged by the applicant and referred to in para (c) below are true ("the Assumption"):

(b) In respect of the sales of the subject goods made during each of the first period and the second period the applicant paid sales tax to the second respondent.

(e) The basis upon which the applicant calculated its sales tax liability in respect of the subject goods was not at the time of payment disclosed or known to
the second respondent.

(f) The applicant has made an application to the second respondent under the Sales Tax Legislation applicable during each of the first period and the second period for a refund of the overpaid sales tax.

(g) The applicant has tendered to the Court the undertaking comprised in the Affidavit of 1 March 1995 of Edwin Murrell Gardiner and in paragraph 35 of his affidavit of 30 November 1994, copies of which are attached [the copies are attached to the orders accompanying these Reasons for Judgment - and see below].

1.On the basis of the Agreed Facts and the Assumption, do the provisions of the sales tax legislation applicable to sales of the subject goods during the first period deny to the applicant any entitlement it may have to a refund or to recovery from the respondents or either of them of the overpaid sales tax paid in respect of the subject goods sold by the applicant in the first period?

2.On the basis of the Agreed Facts and the Assumption, do the provisions of the sales tax legislation applicable to sales of the subject goods during the second period deny to the applicant any entitlement it may have to a refund or to recovery from the respondents or either of them of the overpaid sales tax paid in respect of the subject goods sold by the applicant in the second period?

Paragraph 35 of the affidavit of Edwin Murrell Gardiner, the managing director of Chippendale, sworn 30 November 1994 in the statutory demand proceedings and paras 1 and 2 of Mr Gardiner's affidavit sworn 1 March 1995 in the recovery proceedings (see para (g) above) are as follows:

Para 35 of Mr Gardiner's affidavit sworn 30 November 1994 in the statutory demand proceedings:

Paras 1 and 2 of Mr Gardiner's affidavit sworn 1 March 1995 in the recovery proceedings:

2. My intention at all times has been to cause Chippendale to refund the amount of tax overpaid to its customers. In giving the undertaking in paragraph 35. of my affidavit of 30 November 1994, I had sought to make this intention clear. I have been advised by counsel that the undertaking may be narrowly construed and not cover the circumstances in paragraph 1. above. That was not my intention."

The significance of the reference to "the first period" and "the second period" in the questions for separate decision is that a new legislative sales tax regime called the "streamlined sales tax legislation" ("the new legislation") took effect on and from 1 January 1993 in substitution for a regime which had operated for more than 60 years ("the old legislation"). Question 1 for separate decision raises the issue whether the "passing on provision" of the old legislation disentitles Chippendale to recover any overpaid sales tax paid in respect of goods sold by it in the first period. Question 2 for separate decision raises the issue whether the "passing on provision" of the new legislation has that effect in respect of any overpaid sales tax paid in respect of goods sold by Chippendale in the second period.

No argument has been raised as to the validity of the passing on provisions.

LEGISLATION

The former legislation

The principal Acts comprised in the old legislation are a series of Sales Tax Acts and associated Sales Tax Assessment Acts ("Assessment Acts"). Each Assessment Act is related to at least one Sales Tax Act. Nine "couples of Acts" bear date 1930. In 1985 there were passed a tenth Assessment Act with three related Sales Tax Acts, and an eleventh Assessment Act with two related Sales Tax Acts. In addition, the old legislation included the Sales Tax (Exemption and Classifications) Act 1935 ("the old Exemptions and Classifications Act"), the Sales Tax Procedure Act 1934 ("the Procedure Act") and the Taxation Administration Act 1953 ("the Administration Act").

The Assessment Act which is relevant to Chippendale's circumstances is the Sales Tax Assessment Act (No 1) 1930 ("the No 1 Act") and the provisions central to this case are found in sub-ss 26 (1) and (1A) of the No 1 Act which are as follows:

"26(1) Subject to sub-section (1A), where the Commissioner finds in any case that tax has been overpaid by a person, the Commissioner shall--

(a)refund the amount of any tax overpaid; or

(b)apply the amount of any tax overpaid against any liability of the person to the Commonwealth, being a liability arising under, or by virtue of, an Act of which the Commissioner has the general administration, and refund any part of the amount that is not so applied.

26(1A)Sub-section (1) does not apply in relation to any tax paid by a person unless the Commissioner is satisfied that the tax has not been passed on by the person to another person, or, if passed on to another person, has been refunded to the other person."

Identical provisions are contained in sub-ss 11 (1) and (1A) of Assessment Acts Nos 2, 3, 5, 6, 7, and 9, as well as in sub-ss 15 (1) and (2) of Assessment Act No 11. In Assessment Acts Nos 4, 8 and 10 there is no passing on provision, but a provision identical to sub-s 26 (1) of the No 1 Act with the exclusion of the opening qualification "Subject to sub-s (1A),".

All these provisions deal with "overpayment". The notion of overpayment is not defined. I take it to refer to payments of an amount as tax that was not legally payable (see below). In the case of s 26, subsequent sub-sections empower the Commissioner to refund or otherwise pay amounts of sales tax
which have been paid to him in certain situations other than overpayment.

Certain provisions within ss 12A and 12C of the Procedure Act should also be noted. Sub-section 12A (1) of the Procedure Act is as follows:

"12A(1)Notwithstanding the provisions of any Sales Tax Assessment Act (other than provisions relating to objections and appeals) or of any regulations made under such Act, where any person has paid any amount either as sales tax or for sales tax in respect of any goods, ..., that person shall not be entitled to any refund of that amount--

(a)..................................; ...

(b)if the amount was paid either before or after [13 December 1934] -- upon a prescribed ground as defined in this section, unless that person finally succeeds in an action, upon that ground, brought, in pursuance of this section, for the recovery of that amount:

......................................."

(This express denial of entitlement is displaced in favour of a provision that the Commissioner may make a refund in certain circumstances not presently relevant.) A "prescribed ground" is defined in sub-s 12A (4) as, relevantly, a ground that the goods in question were not "goods manufactured in Australia" by the payer. Clearly, if an "overpayment" arose from the fact that an amount was paid as tax in respect of goods which were not goods manufactured in Australia, para 12A (1) (b) of the Procedure Act would qualify sub-s 26 (1) of the No 1 Act.

Sub-section 12C (1) of the Procedure Act is as follows:

"12C(1)Where the Commissioner finds that any person has made an overpayment of tax, the Commissioner shall not make any refund to that person in respect of that overpayment unless he so finds--

(a)within a period of three years; or

(b)on consideration of a claim in writing for that refund lodged with the Commissioner within a period of three years,

from the date upon which the overpayment was made."

It will be noted that the opening words of sub-s 12C (1) are in conformity with the opening words of sub-s 26 (1) of the No 1 Act noted earlier. Clearly, sub-s 12C (1) qualifies sub-s 26 (1) of the No 1 Act.

The new legislation

The new legislation includes the Sales Tax Assessment Act 1992 ("the 1992 Act"), the Sales Tax (Exemptions and Classifications Act, 1992 ("the new Exemptions and Classifications Act"), and the Administration Act. The provisions of the 1992 Act central to question 2 are as follows:

"51(1) Table 3 sets out the situations in which a claimant is entitled to a credit.

51(2) A claimant is not entitled to a credit for an amount of tax for which a credit entitlement has previously arisen (whether for the claimant or another person).

51(3) A claimant is not entitled to a credit unless the claim for the credit is lodged within 3 years after the time when the credit arises.

51(4) A claim for a credit must be made in the form and manner approved by the Commissioner, and must be accompanied by such supporting evidence as the Commissioner requires."

"Table 3" is a reference to Table 3 in Schedule 1 to the 1992 Act. Within Table 3 the relevant item is as follows:

"Table 3: Credit grounds

[1] No.

[2] Summary of

ground

[3] Details of ground

[4] Amount of credit

[5] Time credit arises

CR1

Tax overpaid

Claimant has paid an amount as tax that was not legally payable.

the amount overpaid, to the extent that the claimant has not passed it on

when the amount became overpaid.

It will be noted that "details" of the ground are given. Although the notion of overpayment of tax is not defined in the No 1 Act for the purposes of sub-s 26 (1) of that Act, as noted above in my opinion it has the same meaning there.

It will also be noted that unlike sub-ss 26 (1) and (1A) of the No 1 Act, Item CR1 is expressed in objective terms which are independent of any "finding" or state of "satisfaction" of
the Commissioner.

The word "credit" is defined in s 5 to mean "a credit under Part 4". Within Part 4, s 53 entitles a claimant who lodges a credit claim form together with a return to deduct the credit to which the taxpayer is entitled from the tax payable in respect of the return. Paragraph 55 (a) (s 55 is also within Part 4), empowers the Commissioner to apply any credit to which a claimant is entitled and which the claimant has not already applied under s 53, against any liability which the claimant has for sales tax or under any other Act of which the Commissioner has the general administration. Paragraph 55 (b) provides that the Commissioner must refund any excess to the applicant.

PARTIES' SUBMISSIONS

Outline of Chippendale's submissions

Chippendale submitted that Otto Australia Pty Ltd v Commissioner for Taxation (1991) 28 FCR 477 (FCA/FC) ("Otto") is not authority for the proposition that sub-ss 26 (1) and (1A) of the No 1 Act are an exclusive code as to the circumstances in which a taxpayer is entitled to a refund or is permitted to claim, where the taxpayer has overpaid sales tax. It submitted that on its plain meaning, sub-s 26 (1A) does not take away any right which a taxpayer has under general law principles to a refund of tax overpaid. It was put that sub-ss 26 (1) and (1A) deal only with the particular case where the Commissioner in fact "finds" that tax has been overpaid and is in fact "satisfied" that the overpaid tax has not been passed on (or if passed on, has been refunded), and leaves intact the Commissioner's liability under general law principles in other cases.

Chippendale referred to the following passage from the judgment of Spender J in Precision Pools Pty Ltd v Commissioner of Taxation (1992) 37 FCR 554 as authority for the proposition that there may be rights of recovery not touched by s 26:

"One would expect clearer words if the section were to have the effect of limiting a right under the general law to be repaid moneys either pursuant to an agreement or in circumstances where the payments were not made voluntarily but under compulsion, the recovery being sought as money had and received." (at 565)

As well, Chippendale referred to the following passage from the joint judgment of Hill and Heerey JJ in Comptroller-General of Customs v Kawasaki Motors Pty Ltd (No 2) (1991) 32 FCR 243:

"Where a common law right exists and subsequently a right is created by statute, it may be accepted that the statute will be presumed not to take away the common law right unless that right is taken away expressly or by necessary implication." (at 258)

Chippendale referred, by way of illustration, to s 4 of the Swimming Pools Tax Refund Act 1992 (Cth) which was introduced to counter the effect of Mutual Pools & Staff Pty Ltd v Commissioner of Taxation (1992) 173 CLR 450. Sub-section 4 (1) of that Act contained the language "except as provided by this section, the Commonwealth is not liable ...", and sub-s 4 (2) contained the language "the Commonwealth is only liable ... ". Similarly, Chippendale referred to the words "shall not be entitled to any refund" and "shall not make any refund" in sub-ss 12A (1) and 12C (1) respectively of the Procedure Act noted earlier. It submitted that the language of these various provisions stands in contrast to that of sub-ss 26 (1) and (1A) of the No 1 Act which gives an entitlement to a taxpayer.

In relation to the new legislation, Chippendale also submitted that s 51 of the 1992 Act and item CR1 in Table 3 do not supplant any common law right to a refund.

Finally, Chippendale submitted that under the general law it has a right to commence proceedings against the Commonwealth to recover moneys overpaid as tax under mistake, and referred to David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353 at 379 and Commissioner of State Revenue v Royal Insurance Australia Ltd (1994) 126 ALR 1 (HC) ("Royal Insurance"). In particular, it contended that Royal Insurance shows that it is not necessary, in order for a taxpayer who has overpaid tax under a mistake of law to be entitled to recover on principles of unjust enrichment, that the taxpayer should not have "passed on" the tax.

In the recovery proceedings, Chippendale has sought a declaration as to overpayment, an order for payment of the amount overpaid and an injunction restraining the respondents from taking steps to recover the amount overpaid. Chippendale submitted that it is open to the Commissioner to make a finding as to whether sales tax has been overpaid even though there has been a passing on, and that the Court can, and should at least, make a declaration as to overpayment so as to achieve the result that Chippendale will know whether it will be entitled to a refund if, in accordance with the undertaking proffered by Mr Gardiner in his affidavits noted earlier, it refunds the tax passed on. It submitted that it was unjust that it should have to refund the relevant amounts of the overpaid sales tax to its customers and run the risk of an adverse finding vis-a-vis the Commissioner with little or no prospect of its recovering from its customers the amounts refunded to them.

Outline of Commissioner's submissions

The Commissioner submitted that the words in sub-s 26 (1) of the No 1 Act, "where the Commissioner finds in any case that tax has been overpaid by a person" indicate an exhaustive remedy for overpayment of sales tax by a person.

He submitted that it is erroneous to think that he has a discretion whether or not to find that tax has been overpaid and whether or not to be satisfied that tax has not been passed on (or if passed on, has been refunded). He noted that the words "Where the Comptroller finds in any case that duty has been over-paid ..." in sub-s 111 (1) of the Stamps Act 1958 (Vic) with which Royal Insurance was concerned are on all fours with the words in sub-s 26 (1) of the No 1 Act, and submitted that in both cases, if there is in fact an overpayment, mandamus would lie directed to compelling the relevant Commissioner to make a finding to that effect.

The Commissioner submitted that the position was analogous to that considered by the Privy Council in the context of the Securities Act 1978 (NZ) in Deloitte Haskins & Sells v National Mutual Life Nominees Ltd [1993] AC 774, in which their Lordships reversed a holding by the New Zealand Court of Appeal that auditors owed a duty of care wider than that imposed by that Act, saying,

" ... it would be even stranger that a common law duty of greater scope should be superimposed upon the statutory duty contained in the subsection. Their Lordships can see no justification for such a course." (at 787B)

The Commissioner submitted that in the present case "no wider common law liability should be superimposed on the exhaustive statutory scheme provided for by sub-s 26 (1), which deals with all overpayments, and the other provisions [in subsequent sub-sections of s 26] which confer additional entitlements where there has been no overpayment."

Referring to what Brennan J said in Royal Insurance (at 126 ALR at 28, line 41), the Commissioner submitted that sub-s 26 (1) transforms any cause of action which Chippendale might have under general law principles into the right given by that sub-section which is inherently qualified by the operation of sub-s 26 (1A) of the No 1 Act and s 12C of the Procedure Act.

The Commissioner submitted that sub-s 51 (1) of the 1992 Act made it even clearer than the old legislation had done, that the statutory remedy was intended to be exhaustive: he referred to the provision of sub-s 51 (1) that "Table 3 sets out the situations in which a claimant is entitled to a credit" (emphasis supplied).

The Commissioner submitted that observations of Sheppard and Burchett JJ in Otto, supra (see below) on sub-s 11 (1A) of the No 5 Act, like those of Lockhart J at first instance in that case ((1990) 25 FCR 257), were deliberate considerations of the effect of the passing on provision on the entitlement of a taxpayer to a refund in respect of an overpayment.

In the recovery proceedings, the Commissioner submitted that the course of the Court's making a declaration that Chippendale will be entitled to a refund subject to its first refunding the overpaid tax which it passed on should not, as a matter of discretion, be followed. He referred to the "lateness and paucity of the evidence adduced by the taxpayer", to the fact that the taxpayer could have instituted proceedings for recovery of tax overpaid prior to the Commissioner's statutory demand but had not done so, and that such proceedings would, in any event, have failed because of the non-satisfaction of the conditions of the Commissioner's liability laid down in sub-ss 26 (1) and (1A) of the No 1 Act and Item CR 1 of Table 3 in Schedule 1 to the 1992 Act.

As further reasons why the Court should not grant declaratory relief of the kind sought by Chippendale, the Commissioner submitted that the performance and efficacy of Chippendale's conditional undertaking to refund could not be assured, because (a) any such refund could be a voidable preference in a subsequent liquidation of Chippendale; (b) action by creditors could prevent Chippendale from making the refund; (c) it is not demonstrated that the identity of the proposed recipients is known to Chippendale and it is probable (because of the nature of Chippendale's business) that they are unidentifiable; and (d) if and to the extent that the Commissioner applied any overpayment against other debts, as Chippendale seeks by its assertion of a set-off in the statutory demand proceedings (see (1995) 13 ACLC 229 at 231-233), there would be no "refund" upon which Chippendale's undertaking could operate.

REASONING

Otto

In my Reasons for Judgment in the statutory demand proceedings ((1995) 13 ACLC 229), I referred to the views expressed in Otto by the trial judge, Lockhart J (at (1990) 25 FCR at 263-264) and on appeal by Sheppard J and Burchett J (at (1991) 28 FCR at 480-481 and 483 respectively). Chippendale now submits that the passages referred to are in the nature of obiter dicta and that their Honours did not consider the various matters which are now put as to why the statutory obligation under sub-s 26 (1), the passing on provision of sub-s 26 (1A) and the limitation period of s 12C of the Procedure Act do not constitute a "code" in respect of a taxpayer's entitlement in a case of overpayment of tax.

The issue in Otto was whether garbage bins imported into Australia by Otto and used for collection of garbage and refuse pursuant to contracts entered into by a company ("Otto") and local government councils were exempt from sales tax under Item 78 of Div XI of the First Schedule to the old Exemptions and Classifications Act. That item exempted:

"Goods for use (whether as goods or in some other form) and not for sale by --

(i) a municipal, shire or district council constituted for the general purposes of local government under any law of the Commonwealth or of a State or Territory; ..."

More precisely, the issue was whether the bins were, on the facts, "for use ... by" the councils.

Lockhart J held that they were not and that they were for use by Otto itself in its performance of its contracts with the councils. His Honour said that if he had concluded that the bins were for use by the councils, a question would have arisen as to the effect of sub-ss 11 (1) and (1A) of Assessment Act No 5 (those sub-sections are identical to sub-ss 26 (1) and (1A) of the No 1 Act). The question which his Honour addressed (and answered affirmatively) was whether there was a "passing on" in a case where a taxpayer (such as Otto) did not charge the sales tax to its customers as a separate identified item, but included it as an undisclosed component in its calculation of the price payable by the customers. His Honour added,

"No question arises of whether s 11 of the No 5 Act could apply to recovery of sales tax which is not exigible at all as a matter of law, as it was agreed by counsel for both parties that s 11 would apply in the present case if the applicant had in fact not passed on the sales tax to councils." (at (1990) 25 FCR at 264)

I accept that Lockhart J was not called upon to address the issue before me.

On appeal, all three judges constituting the Full Court agreed with Lockhart J that the bins were not exempt from sales tax. In obiter dicta, Sheppard J also agreed that there could be a passing on of sales tax otherwise than in identifiable form, and said that:

"In those circumstances, the Commissioner could not have been satisfied that the tax had not been passed on, with the consequence that s 11 (1) could not have any application." (at (1991) 28 FCR at 480-481)

Burchett J said:

"I agree with Sheppard J that s 11(1A) of the Sales Tax Assessment Act (No 5) 1930 (Cth) provides an insuperable obstacle to the appellant's success." (at 483)

Like Lockhart J at first instance, their Honours were not called upon to address the issue before me. Otto was argued on the assumption that the only relevant obligation on the Commissioner to refund overpaid sales tax was the statutory one.

Sales tax: a system of self-assessment

As a manufacturer of goods manufactured in Australia and sold by the manufacturer, Chippendale was required by both the old legislation and the new legislation to furnish within 21 days after each month a return in respect of sales during that month, to assess the amount of sales tax payable by it in respect of such sales, and to remit to the Commissioner payment within the same period of 21 days. Chippendale's case as put by it is

* that it overpaid because it calculated the amount of its sales tax liability on a basis which was not as favourable to it as another basis which, unbeknown to it, it was entitled to use;

* that this was a unilateral mistake of law; and

* that Chippendale's misapprehension was not known to, caused by or contributed to by the Commissioner:

see the Assumption and para (e) of the Agreed Facts; and for background, see my judgment in the statutory demand proceedings at (1995) 13 ACLC 229 at 233-236. (It is not amiss to note that the Commissioner contests the proposition that there has been an overpayment.) I will refer to Chippendale's case as outlined above as a case of "Mere Overpayment". Chippendale's case is one of Mere Overpayment as distinct from, for example:

(i) payment made pursuant to demand colore officii; cf Sargood Brothers v Commonwealth (1910) 11 CLR 258 esp at 301-302 (Isaacs J); Mason v NSW (1959) 102 CLR 108 at 140 (Windeyer J); Bell Bros Pty Ltd v Shire of Serpentine-Jarrahdale (1969) 121 CLR 137 at 145 (Kitto J).

(ii) payment made under protest by a non-mistaken taxpayer to a mistaken revenue authority; cf Precision Pools Pty Ltd v Commissioner of Taxation (1992) 37 FCR 554 (FCA/Spender J) at 565; Woolwich Equitable Building Society v Inland Revenue Commissioners [1993] AC 70 (HL).

Mere Overpayment is the precise subject matter of sub-s 26 (1) of the No 1 Act and of Item CR 1 in Table 3 of Schedule 1 to the 1992 Act. It is not necessary for me to consider whether overpayment accompanied by other circumstances might give rise to a cause of action for refund or recovery which is not denied by the legislative provisions in question. Of course, a taxpayer in such a case can rely on the legislative regime (of which the passing on provision forms part). As will appear, I am of the view that in a case of Mere Overpayment the taxpayer can only rely on it.

The apparent comprehensiveness of the legislative remedy for Mere Overpayment

In my opinion the old legislation and the new legislation clearly reveal an intention that their remedial regimes are to be exhaustive in cases of Mere Overpayment.

I reject Chippendale's submission that sub-ss 26 (1) and (1A) deal only with the particular case where the Commissioner in fact finds that tax has been overpaid and is in fact satisfied that the overpaid tax has not been passed on (or, if passed on, has been refunded). Statutory powers such as the implied power given by sub-s 26 (1) to find that tax has been overpaid and by sub-s 26 (1A) to be satisfied that tax has not been passed on or, if it has been, has been refunded, must be exercised in conformity with law, and mandamus or a mandatory order under the Administrative Decisions (Judicial Review) Act 1977 (Cth) lies to compel the exercise of such powers accordingly; see, for example, Julius v Lord Bishop of Oxford (1880) 5 App Cas 214 (HL) at 222-223 (Earl Cairns LC), 229-230 (Lord Penzance), 235 (Lord Selborne); The Queen v Commissioners for Special Purposes of the Income Tax (1888) 21 QBD 313 (CA); Avon Downs Pty Ltd v FC of T (1949) 78 CLR 353 at 360 (Dixon J); FC of T v Official Receiver (1956) 95 CLR 300 at 310-312 (Williams J), 324 (Fullagar J) (Dixon CJ agreed with their Honours - at 305); Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 (HL) at 1032-1034 (Lord Reid); FC of T v Brian Hatch Timber Co (Sales) Pty Ltd (1972) 128 CLR 28 at 45 (Barwick CJ); Kolotex Hosiery (Australia) Pty Ltd v C of T (1975) 132 CLR 535 at 561 (Gibbs J); Health Insurance Commission v Peverill (1994) 179 CLR 226 at 242 (Brennan J); Royal Insurance, supra, at 20 (Mason CJ), 25-26 (Brennan J, with whom Toohey and McHugh JJ agreed), 32-33 (Dawson J); Walker v Secretary, Department of Social Security (1995) 36 ALD 513 (FCA/FC) at 528 (Cooper J with whom Spender J agreed).

As it was enacted in 1930, sub-s 26 (1) of the No 1 Act provided simply as follows:

"26(1)Where the Commissioner finds in any case that tax has been overpaid and is satisfied they the tax has not been passed on by the taxpayer to some other person, or, if passed on to some other person, has been refunded to that person by the taxpayer, the Commissioner may refund the amount of tax found to be overpaid."

By Act No 123 of 1984, sub-ss 26 (1) and (1A) noted earlier were substituted. These introduced two changes: they substituted "shall" for "may", thereby making it expressly mandatory for the Commissioner to act wherever he found an overpayment; and they gave the Commissioner the option of applying the amount overpaid off certain revenue liabilities of the taxpayer to the Commonwealth as an alternative to making a refund.

The 1992 Act received the Royal Assent on 30 September 1992. This preceded the decision of the High Court on 7 October 1992 in David Securities Pty Ltd v Commonwealth of Australia (1992) 175 CLR 353. Prior to that decision it was accepted that action did not lie to recover money paid voluntarily under unilateral mistake of law: see, for example, J & S Holdings Pty Ltd v NRMA Insurance Ltd (1982) 61 FLR 108 (FCA/FC); Comptroller-General of Customs v Kawasaki Motors Pty Ltd (No 2) (1991) 32 FCR 243 (FCA/FC) at 258 (Hill and Heerey JJ); David Securities Pty Ltd v Commonwealth of Australia (1990) 23 FCR 1 (FCA/FC) at 33-37. It is reasonable to think that when sub-ss 26 (1) and (1A) of the No 1 Act and s 51 of the 1992 Act were enacted, Parliament was intending to create a code of taxpayers' rights in respect of Mere Overpayment - a situation in which, according to the general understanding, he had no right of recovery under the general law. It provides no basis for attributing a different intention to the legislature that since 7 October 1992, a taxpayer has had, subject to defences, a cause of action for refund or recovery of money paid under a causative mistake of law (I do not need to decide whether the kind of mistake allegedly made by Chippendale is a causative mistake of law).

The situation is distinct from the existence of a common law right and the subsequent creation of a right by statute. In such a situation "the statute will be presumed not to take away the common law right unless that right is taken away expressly or by necessary implication": Comptroller General of Customs v Kawasaki Motors Pty Ltd (No 2), supra. Nonetheless, as will appear, in my opinion it is a necessary implication of both the old and the new legislation that the provisions in question are intended to be an exhaustive code of taxpayers' rights in cases of Mere Overpayment.

The only legal basis on which Chippendale would have a right of refund or recovery under general law principles in respect of its Mere Overpayment is that for the Commissioner to resist the claim would involve an unjust enrichment, on the basis that he is entitled by law to retain no more than the amount of sales tax which Chippendale was at law bound to pay; cf Royal Insurance at 7-8, 9 (Mason CJ), but contrast Brennan J (with whom Toohey and McHugh JJ agreed) at 26, lines 22-27, and at 27, lines 2-7. But this legal basis of entitlement/ liability, if it exists, is precisely addressed by the reference to overpayment in sub-s 26 (1) of the No 1 Act and Item CR 1 in Table 3 in Schedule 1 to the 1992 Act. What emerges in my opinion is that, properly construed, both the old and the new legislative regimes, read as a whole and as including the passing on provisions, do authorise the Commissioner to retain the amounts overpaid as tax where they have been passed on without any intervening refund. This distinguishes the present case from Royal Insurance.

On their face, sub-ss 26 (1) and (1A) of the No 1 Act and s 12A of the Procedure Act purport to be exhaustive statements of situations in which there is to be a refund or payment in respect of amounts overpaid as and for sales tax to the Commissioner. In particular, the words "in any case" in sub-s 26 (1) of the No 1 Act suggest that the sub-section is intended to provide the only remedy in any case of Mere Overpayment. The language of sub-s 51 (1) of the 1992 Act is even clearer: the word "the" in sub-s 51 (1) makes it clear that Table 3 sets out "the only" situations in which a claimant is entitled to a credit, and so the 1992 Act also authorises the Commissioner to retain an amount paid as and for sales tax that was not legally payable where the amount overpaid was passed on and has not been refunded.

The extensive provisions under both the old legislation and the new legislation for objection, review and appeal in respect of a decision by the Commissioner rejecting a taxpayer's request for a refund in respect of Mere Overpayment also strongly suggest that the statutory remedial regimes were intended to be exhaustive in such a case. Part VII (ss 39A-43) of the No 1 Act provided a system of objection, review and appeal in respect of, inter alia, "refund decisions", that is to say, relevantly, decisions in respect of applications for action to be taken by the Commissioner under s 26 (see the definition of "refund decision" in s 39A). Since sub-s 26 (1) makes refund or application by the Commissioner mandatory where the conditions laid down are satisfied, the system of objection, review and appeal focus on the Commissioner's failure to "find" an overpayment or to "be satisfied" that an amount overpaid has not been passed on, or if passed on, that it has not been refunded.

The provisions in Part VII of the No 1 Act have been succeeded by those of Part IVC (ss 14ZL-14ZZS) of the Administration Act inserted by Act No 216 of 1991. Part IVC provides for objection, review and appeal in respect of, inter alia, a decision of the Commissioner rejecting a taxpayer's claim to be entitled to a credit under s 51 of the 1992 Act. Part IVC also has an operation in respect of certain decisions of the Commissioner under the old legislation notified after 1 March 1992 (see the transitional provision in s 116 of Act No 216 of 1991). What is important for present purposes is that there has been at all times under both the old legislation and the new legislation a comprehensive system of objection, review and appeal if a taxpayer's claim of an entitlement arising out of Mere Overpayment is not accepted by the Commissioner.

In the first place, under Part VII of the No 1 Act, an applicant for a refund decision who is dissatisfied with the Commissioner's decision on the application may lodge an objection with the Commissioner (sub-s 40 (2) - references are references to sections in the No 1 Act except where stated otherwise) and if dissatisfied with the Commissioner's decision on the objection, may request the Commissioner to refer that decision to the Administrative Appeals Tribunal ("the AAT") or to the Federal Court of Australia ("the Court") (s 41). Where an objector makes a request for the Commissioner to refer his decision to the AAT or to the Court, the Commissioner must comply with the request, and the effect of a referral to the AAT is that there is deemed to be made an application by the objector to the AAT for review of the Commissioner's decision on the objection, and referral of such a decision to the Court is deemed to constitute the institution by the taxpayer of an appeal against the decision (s 42C).

On a review before the AAT or on an appeal to the Court, the burden of proving that the refund decision is "incorrect" lies on the objector (para 42E (b)). The AAT may exercise all the powers and discretions conferred on the Commissioner by the No 1 Act; sub-s 43 (1) of the Administrative Appeals Tribunal Act, 1975 (Cth) (the "AAT Act"). Where the Court hears an appeal under Part VII, it may make such order in relation to the decision to which the appeal relates as the Court thinks fit, including an order confirming or varying the decision (sub-s 42G (3)). The Commissioner must give effect to a decision of the AAT or of the Court once it has become final (s 42H).

If it were correct, as Chippendale submits, that in a case of Mere Overpayment the taxpayer has the option of seeking to recover the amount overpaid before a court exercising jurisdiction in respect of claims based on general law principles, the taxpayer would have to establish before such a court, according to the civil standard of proof namely the balance of probabilities, the fact of overpayment. Yet this is precisely the position under Part VII of the No 1 Act. The existence of such comprehensive provisions for review and appeal strongly suggest a legislative intention that in a case of Mere Overpayment, the exclusive source of a right to a refund is to be that found in sub-s 26 (1) subject to the passing on provision in sub-s 26 (1A) and to the limitation period established by sub-s 12C (1) of the Procedure Act.

The successor provisions contained in Part IVC of the Administration Act are relevantly similar. Section 14ZL of the Administration Act and s 60 of the 1992 Act have the effect that a claimant for a credit who is dissatisfied with the Commissioner's decision may object against that decision in the manner set out in Part IVC of the Administration Act and that such an objection falls within the expression "taxation objection" for the purposes of the latter Act. Sections 14ZU-14ZYA within Division 3 of that Part regulate the making of objections to the Commissioner. The Commissioner's decision on the objection is called an "objection decision" (s 14ZY). Section 14ZZ within Division 3 provides that a taxpayer who is dissatisfied with the Commissioner's objection decision (it is both a "reviewable objection decision" and an "appealable objection decision" - see definitions in s 14ZQ) may apply to the AAT for review of the decision or appeal to the Court against the decision.

Division 4 (ss 14ZZA-14ZZM) provides for review by the AAT. As under Part VII of the No 1 Act, sub-s 43 (1) of the AAT Act applies (see s 14ZZJ of the Administration Act) and so the AAT has all the powers and discretions conferred on the Commissioner by the 1992 Act (although this fact does not assume the importance that it does in relation to the No 1 Act because of the absence of any reference in the 1992 Act to the Commissioner's "finding" of overpayment or being "satisfied" that the passing on provision does not apply).

Division 5 (ss 14ZZN-14ZZS) provides for appeal to the Court. The appellant has the burden of proving that the Commissioner's original decision objected to should not have been made or should have been made differently (sub-para 14ZZO (b) (iii)). The Court may make such order as thinks fit, including an order confirming or varying the decision (s 14ZZP). When the Court's order becomes final, the Commissioner must give effect to it (s 14ZZQ).

My construction of the legislative remedial regimes as intended to be exhaustive is consistent with the view taken in the High Court of the statutory power to make a refund of stamp duty found to have been overpaid, given by sub-s 111 (1) of the Stamps Act 1958 (Vic) in Royal Insurance, at 27, lines 9-14, and 28, lines 41-46 (Brennan J, with whom Toohey and McHugh JJ agreed), 35, lines 41-45 (Dawson J).

Anomalies which would arise from the coexistence of a right of refund or recovery under general law principles and the statutory remedial regimes

Parliament cannot have intended that in a situation of Mere Overpayment, a right to refund or to recovery under general law principles and the statutory regime should coexist because that coexistence would render the statutory regime, and in particular the passing on provision, substantially ineffective. It may be noted in passing that a similar observation could appropriately be made in relation to the passing on provisions in sub-s 35C (5) of the Stamp Duties Act 1920 (NSW), ss 13 and 13A of the Energy Consumption Levy Act 1982 (Vic), ss 90 and 90A of the Land Tax Act 1958 (Vic), ss 19 and 19A of the Pay-Roll Tax Act 1971 (Vic) and s 32A of the Stamps Act 1958 (Vic) in its relation to sub-ss 32 (7A), 111 (1), 131 AC (3A), 137 AF (1) (c) and 137 AFA (1) of that Act (the Victorian passing on provisions were introduced by the State Taxation (Amendment) Act 1992 (Vic)). In the context of sales tax a taxpayer would by-pass the statutory regime in order not to be affected by either the passing on provision of sub-s 26 (1A) and of Item CR1 in Table 3 of Schedule 1 to the 1992 Act, or the three year limitation period laid down in sub-s 12C (1) of the Procedure Act and in sub-s 51 (3) of the 1992 Act. Parliament cannot have intended that such circumvention be possible.

What follows is an amplification of this proposition. In the ordinary course, a taxpayer whose case is one of Mere Overpayment will request a refund. Chippendale made such a request: see para (f) of the Agreed Facts (it made its formal application on 30 November 1994, the day preceding the commencement of the hearing of the statutory demand proceedings). If the Commissioner were to find that there had been an overpayment, a non-refunded passing on by the taxpayer would exclude the statutory obligation to make a refund to the taxpayer. If Chippendale's submission were to be accepted, it could be said that the taxpayer would be better placed if he had not applied for a refund or if the Commissioner had not found that there had been an overpayment, since in such a case the way would be open, according to the submission, for the taxpayer to institute proceedings in a court exercising jurisdiction under the general law without regard to the statutory regime. It is inconceivable that Parliament intended that in cases of Mere Overpayment, the taxpayer should have the option of having his claim considered and determined by the Commissioner under the general law rather than under the statutory regime.

Similarly, it is inconceivable that Parliament intended that in a case of Mere Overpayment, the taxpayer should have the option of avoiding the three year limitation period laid down in sub-s 12C (1) of the Procedure Act and sub-s 51 (3) of the 1992 Act, in favour of the limitation period, if any, applicable to an action to recover money paid under causative unilateral mistake of law (cf Ministry of Health v Simpson [1951] AC 251 at 274 referred to by Brennan J in Royal Insurance, supra, at 28).

Finally, it is inconceivable that Parliament intended, in a case of Mere Overpayment, that a taxpayer aggrieved by the Commissioner's decision should have the option of bringing an action in the ordinary courts in disregard of the elaborate statutory system of objection, review and appeal laid down in Part VII of the No 1 Act and in Part IVC of the Administration Act.

CONCLUSION

Conclusion in the recovery proceedings - NG 147 of 1995

For the foregoing reasons, the two questions set aside for separate decision will be answered "yes".

I would not, in the exercise of discretion, make a declaration as to overpayment or as to the amount of any entitlement which Chippendale might be found to have if it should first refund the amounts of overpaid tax which it has passed on. In this respect, it suffices to say that I accept the submissions of the Commissioner and reject those of Chippendale.

The application in the recovery proceedings will be dismissed. Chippendale will be ordered to pay the Commissioner's costs of those proceedings.

Conclusion in the statutory demand proceedings - No NG 3388 of 1994

I remain of the view which I expressed in my earlier Reasons for Judgment ((1995) 13 ACLC 229), that if for no other reason, because of the passing on provisions Chippendale does not have an offsetting claim, that is to say, a genuine claim against the Commissioner by way of counterclaim, set-off or cross-demand in respect of the allegedly overpaid tax of either $420,383.00 or $480,929.00 as the case may be.

There will be an order varying the amount of the Commissioner's statutory demand bearing date 19 July 1994 and served on 21 July 1994 down to $185,992.93 and declaring the demand to have had effect, as so varied, as from when the demand was served on Chippendale on 21 July 1994.

The internal content of the statutory demand will also be ordered to be varied in accordance with the Commissioner's submissions in order to generate the resultant figure of $185,992.93. I will extend the time allowed by the statutory demand for payment to the date on which a period of 21 days from the making of the order and publication of these reasons expires.

In relation to the question of the costs of the statutory demand proceedings, I have had submissions from the parties. As I noted in my reported Reasons for Judgment in those proceedings, Chippendale's non-compliance with directions for the filing and service of its affidavits was extreme. It served almost the entirety of its affidavit evidence on 29 November, 30 November and 1 December 1994, the hearing having commenced on this last date. It was only because the Commissioner and his counsel were anxious that the matter should proceed in the time set aside, that there was not an adjournment at Chippendale's cost.

In addition, when the statutory demand proceedings were before me on 13 February 1995 for the hearing of submissions as to costs and the form of the orders to be made, Chippendale sought leave to make further submissions. I ultimately granted that leave, basically on the footing that Chippendale wished to refer to the decision of the High Court in Royal Insurance case which had been delivered since the hearing before me. As events have turned out, reference to that case has not played a substantial part in Chippendale's further submissions. In Royal Insurance the Victorian Commissioner found that there had been an overpayment; the statute gave a discretion, rather than imposed an obligation, to make a refund; there was no passing on provision; and the relevant central issue was how the discretion was to be regarded rather than whether the statutory regime was a remedial code to the exclusion of any remedy under the general law (indeed, as noted earlier, the High Court dealt with the case on the basis that the only relevant remedy to be considered was that provided by the statute). The reality of the matter is that Chippendale did not, on the original hearing before me, make submissions of substance relating to the passing on provision and the Otto case, and has now had the opportunity of a second attempt to deal with that matter by reference to arguments which could, in effect, have been put on the original hearing.

Further, Chippendale sought leave to re-open to the extent of reading a further affidavit by Mr Gardiner sworn 1 March 1995. While the Commissioner agreed to my taking into account the undertaking expressed in that affidavit for the purpose of the decision of the separate questions, this is yet another illustration of the difficulties which have arisen from Chippendale's not having filed and served its evidence and made its submissions in conformity with directions and the Court's practice directed to achieving an orderly and expeditious disposal of proceedings.

In all the circumstances it is appropriate that Chippendale pay the Commissioner's costs of the statutory demand proceedings.

I certify that this and the preceding 36 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lindgren.

Associate:

Dated: 4 August 1995

Heard: 5 May 1995

Place: Sydney

Decision: 4 August 1995

Appearances: Mr J T Svehla of counsel instructed by Cowley Hearne appeared for the applicant in both proceedings.

Mr A H Slater QC with Ms R M Henderson of counsel instructed by the Australian Government Solicitor appeared for the respondents in both proceedings.

Top