• Legal database
Legal database

Clarke & Kann v. Deputy Federal Commissioner of Taxation.

Judges:
Sheppard J

Court:
Federal Court

Judgment date: Judgment handed down 4 November 1983.

Sheppard J.

By their amended application in this matter the applicant firm of solicitors seeks the review of the following decisions of the respondent, namely:

  • (a) to issue notices directed to the applicant dated 2 August 1983, purportedly pursuant to sec. 264 of the Income Tax Assessment Act 1936 and sec. 4 of the Taxation (Unpaid Company Tax) Assessment Act 1982 requiring the supply of the information therein specified by the applicant to the respondent on or before the twenty-third day of August 1983;
  • (b) to refuse the requests of the applicant for extensions of time to comply with the said notices.

The grounds of the application and the particular provisions of the Administrative Decisions (Judicial Review) Act 1977 relied upon are as follows:

  • (1) The respondent did not have jurisdiction to make the decision - para. 5(1)(c).
  • (2) The decision was not authorised by the enactment in pursuance of which it was purported to be made - para. 5(1)(d).
  • (3) The making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made by reason of the fact that the respondent:
    • (a) failed to take a relevant consideration into account in the exercise of the power - para. 5(1)(e) and 5(2)(b);
    • (b) exercised the power in a way that constitutes abuse of the power - para. 5(1)(e) and 5(2)(j).
  • (4) The decision was otherwise contrary to law - para. 5(1)(j).

Three notices, each dated 2 August 1983, and said to be pursuant to sec. 264 of the Income Tax Assessment Act 1936 (``the Assessment Act'') were served, one in respect of a company J.B.J. Pty. Limited, one in respect of a company John W. Breene Pty. Limited, and one in respect of a company John W. Breene (C.Q.) Pty. Limited. It is unnecessary to refer to the detail of them, but they sought a great deal of information about the sale of shares in each company. The notices also sought the production of certain documents. Each notice concludes with the words, ``Take notice that should you fail to comply with the above requirements legal proceedings may be commenced without further notice''.

The applicant was the solicitor for each of the companies. On 12 August 1983 letters were written by the applicant to the respondent. Amongst other things the letters said (I refer to that written in relation to the company J.B.J. Pty. Limited):

``As the former Solicitors for J.B.J. Pty. Ltd. we have duties of confidence to the Company. The only circumstances under which we could properly divulge any information in our possession to you are either upon instructions from our client to do so, or if our duty of confidence is overridden by operation of law.

We are not instructed to disclose any of the information sought by you.

As you are aware the constitutional validity of the Recoupment Act is currently being challenged before the High Court of Australia, argument having been heard and the decision reserved. You will therefore appreciate that your request places us in a most invidious position in that if we supply the information and that legislation is held invalid, we shall have not complied with our duty to our former client, whilst if we fail to supply the information and the legislation is held valid, we shall not have complied with our duty as officers of the Court.

We accordingly request that you extend the time for compliance with the requirement contained in your letter under reply until twenty-one (21) days after the High Court has delivered its decision as to the constitutional validity of the Recoupment Act. In return for such an extension of time, we would, of course, undertake during the period of such extension not to do any act which would impair the capacity of this firm to supply the information requested in the Notice.

Should you refuse this request we request pursuant to subsec. 13(1) of the Administrative Decisions (Judicial Review) Act 1977 that you furnish us with

ATC 4767

a statement in writing setting out the findings on material questions of fact relied upon in making that decision, referring to the evidence or other material on which your findings are based and giving the reasons for your decision.''

On 19 August 1983 the respondent replied to the letters of 12 August 1983. He said that compliance with the notices was insisted upon and that he would advise in writing of his reasons for his decision to serve the notices in due course.

The applicant wrote again on 22 August 1983. Reference was made to the previous correspondence. The letter continued:

``We assume that in each case you have refused our request for an extension of time to comply with the Notice. We do however apply for an extension of time to comply with the Notice until seven (7) days after you have furnished your reasons for your decision refusing our original request in accordance with sec. 13 of the Administrative Decisions (Judicial Review) Act 1977.

As the time for compliance with your original Notice expires tomorrow we must insist upon a reply to the request contained herein this day.''

As requested the respondent answered the letter on 22 August 1983. He said that he repeated that he insisted upon compliance with the notices under sec. 264 of the Assessment Act. He continued:

``I have not extended the time for compliance with the notice in accordance with the requests made in either the abovementioned letter or the previous letter in which a deferment was requested.

Every effort is being made to supply you with the reasons in writing for my decision not to extend the time for compliance with the notice at an early date. However, I point out that sec. 13 of the Administrative Decisions (Judicial Review) Act 1977 allows a maximum period of twenty-eight (28) days in which to prepare a statement of reasons and furnish same to the person making the request. There has been insufficient time following receipt of your request to enable such a statement to be prepared and furnished prior to 23 August 1983.''

The application herein was filed the day after the respondent's letter was written, that is, on 23 August last.

It is next appropriate to refer to the relevant legislation. On 13 December 1982, the Taxation (Unpaid Company Tax) Assessment Act 1982 (``the Recoupment Act'') came into force. For the purposes of this case, its complex provisions do not need to be fully understood. Its principal sections are sec. 5,6,7 and 8. Their effect is to make liable for company tax unpaid as a result of a company's financial failure certain persons including former shareholders, directors and promoters. Liability will be incurred if before the commencement of the Act shares in the company were sold pursuant to a scheme as therein defined.

Subsection 4(1) of the Recoupment Act is as follows:

``Unless the contrary intention appears in this Act, sections 6 and 7A, Part II, section 21, Parts IV and V, Division 1 of Part VI, and Parts VII and VIII of the Assessment Act, and regulations made under that Act, apply for the purposes of the assessment and collection of recoupment tax, and the collection of late payment tax, in like manner, mutatis mutandis, as those provisions apply for the purposes of the assessment and collection of income tax under the Assessment Act.''

It is to be observed that included in Pt. II is sec. 16 of the Assessment Act, and included in Pt. VIII is sec. 264 of the Assessment Act. Subsection 16(2) of the Assessment Act provides:

``Subject to this section, an officer shall not either directly or indirectly, except in the performance of any duty as an officer, and either while he is, or after he ceases to be an officer, make a record of, or divulge or communicate to any person any such information so acquired by him.''

The operation of sec. 16, insofar as the Recoupment Act is concerned, is affected by subsec. 4(4) of that Act, but not materially so far as the present case is concerned. Section 264 of the Assessment Act, so far as material, is as follows:

``(1) The Commissioner may be notice in writing require any person, whether a

ATC 4768

taxpayer or not, including any officer employed in or in connexion with any department of a Government or by any public authority -
  • (a) to furnish him with such information as he may require;
  • ...

(2) The Commissioner may require the information or evidence to be given on oath and either verbally or in writing, and for that purpose he or the officers so authorized by him may administer an oath.

...''

The validity of the Recoupment Act has been challenged in the High Court in two cases,
MacCormick v. F.C. of T. (S45 of 1983) and
Camad Investments Pty. Ltd. v. F.C. of T. (S59 of 1983). The hearing of the cases has concluded and the Court has reserved its decision. There is no indication when judgment will be delivered.

The respondent and one of his officers have sworn affidavits. One purpose of these was to show that the notices under sec. 264 of the Assessment Act were served for the purposes of assessing what amount of recoupment tax, if any, is payable by a number of individuals, all of whom had a relevant connection with one or more of the companies at some time in the past. The affidavits contained a detailed account of how this connection was said to arise. The evidence was led in order to show that the decisions to serve the notices were decisions making, or forming part of the process of making, or leading up to the making, of assessments or calculations of tax within the meaning of para. (e) of Sch. 1 of the Judicial Review Act. If that were so, the decisions would not be reviewable; see the definition of ``decision'' in subsec. 3(1) of the Judicial Review Act.

A further matter deposed to by the respondent was as follows:

``At the time of issuing the said notices and also at the time of refusing an extension of time for compliance with the said notices I was aware of and took into account the fact that the High Court of Australia had reserved its decision in the following matters which had come before it:...''

MacCormick's case and the Camad Investments case where then referred to.

The respondent, although he claims to be under no obligation so to do, has provided reasons pursuant to subsec. 13(1) of the Judicial Review Act. The reasons themselves are broken up into two parts, those for deciding to issue the notices under sec. 264 and those for deciding to insist upon compliance with the notices. Those are the two groups of decisions review of which is sought.

The reasons for the first mentioned decisions were stated to be:

``1. The Commissioner is charged with the general administration of the Taxation (Unpaid Company Tax) Assessment Act 1982.

2. Issued the notices for the purpose of assessing what amount, if any, is payable by any or all of the following persons:

  • John William Breene
  • Beryl Bernadette Breene
  • Nicola Breene
  • Jonathan J. Breene
  • Michael J. Breene
  • David J. Breene
  • William J. Hodby
  • John Arthur Redshaw
  • Roy W. Rickuss

pursuant to the provisions of the Taxation (Unpaid Company Tax) Assessment Act 1982.''

The reasons for the second mentioned decisions were stated to be:

``The Commissioner is charged with the general administration of the Taxation (Unpaid Company Tax) Assessment Act 1982. He is obligated to administer that Act according to its terms until such time as it is found to be invalid in some material respect. The fact that the constitutional validity of the aforementioned Act has been challenged before the High Court by other parties was taken into account but I decided that it should not affect my continued administration of the Act.''

The respondent objected to the competency of this application. In his amended notice of objection to competency three grounds were relied upon. They were:

ATC 4769

``1. The Decision of the Respondent to refuse the request of the Applicant for an extension of time to comply with notices issued pursuant to sec. 264 of the Income Tax Assessment Act 1936 (as amended) and dated 2 August 1983 is not a Decision to which the Administrative Decisions (Judicial Review) Act 1977 applies by virtue of sec. 3 and Sch. 1(e) of the aforementioned Act; and further,

2. The Decision to issue the said Notices is not a decision to which the Administrative Decisions (Judicial Review) Act 1977 applies by virtue of sec. 3 and Sch. 1(e) of the aforementioned Act; and further,

3. In proceedings under the Administrative Decisions (Judicial Review) Act 1977 the validity of the enactment in purported pursuance of which the decision sought to be impugned was made, must be assumed.''

I have reached the conclusion that the application is competent. I have considered the terms of para. (e) of Sch. 1 of the Judicial Review Act, but in my opinion neither the decisions to serve the notices nor the decisions to refuse the applicant's request for an extension of time are within its terms. The decisions are certainly not decisions making assessments of tax, nor can they be decisions forming part of the process of making such assessments.

There is an arguable basis for saying they are decisions leading up to the making of assessments of tax. By reason of the decisions information may be obtained which will lead to assessments being made. But in my opinion the paragraph was intended to cover only those cases where what is decided to be done is a step likely to lead to an assessment which, if made, can be objected to, and if the objection be disallowed, the appellate procedure invoked. The legislature was anxious not to provide a person dissatisfied with an assessment with an alternative avenue of redress, nor was such a person to be permitted to have reviewed any decision of the Commissioner which formed any step in the process leading to actual assessment.

To my mind the decisions to serve the notices under sec. 264 were a prelude to any decision to trigger off the assessment process. The provision is intended, inter alia, to assist the Commissioner to ascertain whether there is, or may be, a basis for an assessment. It is what he may discover as the result of the service of a notice which may trigger the assessment process. It is then that it will be likely that there will be decisions ``leading up to the making of'' an assessment, but not before. I refer generally to
Tooheys Ltd. v. Minister for Business and Consumer Affairs (1981) 36 A.L.R. 64 at pp. 77-78, affirmed on appeal (1982) 42 A.L.R. 260; I refer especially to p. 271. I would add that I find it quite impossible to understand how decisions to refuse an extension of time to comply with the notices could possibly be decisions leading up to the making of assessments.

The third ground upon which it is said the application is incompetent raises the question whether this Court has power to entertain an application for review if the impugned decision is claimed to have been made under an enactment, the validity of which is challenged.

The submission of the respondent was as follows. Only decisions made under an enactment may be reviewed. Grounds 1, 2 and 4 of the amended application earlier set out all rely on the alleged invalidity of the Recoupment Act. That is why it is said that the respondent had no jurisdiction to make the decisions, particularly those pursuant to which the notices were served. It is also why the decisions are said not to be authorised by the enactment, i.e. the Recoupment Act, and why the decisions are said to be contrary to law. Counsel for the applicant agreed that invalidity of the legislation was the basis for these grounds. With this as his starting point counsel for the respondent then submitted that if the Recoupment Act were invalid, there could be no reviewable decision because, ex hypothesi, the decisions would not be decisions under an enactment. There could be no enactment if the legislation pursuant to which the decisions were made were found to be invalid.

One answer made by counsel for the applicant was that the decisions in question, being decisions under sec. 264 of the Assessment Act, were not made under the Recoupment Act but under the Assessment Act, the validity of which was not in doubt. Upon reflection I think that submission must be rejected. Subsection 4(1) of the

ATC 4770

Recoupment Act, which I have earlier set out, provides in part that the provisions of the Assessment Act, which are referred to and which include sec. 264, apply for the purposes of the assessment and collection of recoupment tax in like manner as those provisions apply for the purposes of the assessment and collection of income tax under the Assessment Act.

In In
re Woods' Estate; Ex parte Her Majesty's Commissioners of Works & Buildings (1886) 31 Ch.D. 607 the Court of Appeal held that if a subsequent Act brings into itself by reference some of the provisions of a former Act, the legal effect of that is to write those sections into the new Act just as if they had been actually printed into it. That view was adopted by Williams J. when a Judge of the Supreme Court of New South Wales in
Perpetual Trustee Co. (Ltd.) v. Wittscheibe (1940) 40 S.R. (N.S.W.) 501 at p. 510; and when a Judge of the High Court in
Cadbury-Fry-Pascall Pty. Ltd. v. F.C. of T. (1944) 7 A.T.D. 471 at pp. 486-487; (1944) 70 C.L.R. 362 at p. 388.

The notices make clear that they were issued for the purposes of the Recoupment Act. They say in part, ``pursuant to para. 264(1)(a) of the Income Tax Assessment Act 1936 as that paragraph is incorporated with the Taxation (Unpaid Company Tax) Assessment Act 1982''. It follows that if the Recoupment Act is invalid, sec. 264 insofar as it is incorporated therein, is invalid also.

So the question arises, is a decision open to review if the basis of the complaint about it is that it is made pursuant to an enactment which is beyond constitutional power. In other words, does this Court have jurisdiction under the Judicial Review Act to determine that question.

In
Sean Investments Pty. Ltd. v. MacKellar (1981) 38 A.L.R. 363, Deane J. said (pp. 370-371):

``The decision of the Minister on a review pursuant to sec. 40 AE(3) (of the National Health Act 1953) is not liable to be challenged before the Administrative Appeals Tribunal pursuant to the provisions of the Administrative Appeals Tribunal Act 1975. The jurisdiction of this court, pursuant to the Administrative Decisions (Judicial Review) Act 1977, to review the Minister's decision is a limited one. The court is not entrusted with the duty or power to conduct a review on the merits of administrative decisions to which that section applies. It is restricted to a consideration of whether it appears that the decision under review is affected by one or more of the `grounds' specified in sec. 5(1) of that Act. Generally speaking, those grounds correspond to the established common law grounds for attacking the decision of an administrative decision maker. The court must, in my view, be vigilant to ensure that it does not, under the guise of reviewing administrative decisions on questions of law, trespass in fields of administrative decision making in relation to which it possesses neither mandate nor special qualification.''

What his Honour was there concerned to say was that the Court must not enter upon the consideration of the merits of a decision review of which is sought. But in saying what he did, he drew attention to the intended operation of the Act. As he said, generally speaking the grounds specified in subsec. 5(1) of the Judicial Review Act correspond to the established common law grounds for seeking the review of a decision made in the course of the administration of government. If in a court of general jurisdiction, relief by way of declaration of right or prerogative writ were sought, it would be open to an applicant to seek that relief on the ground that the legislation pursuant to which action was being taken was invalid. That is a common experience. In
Lamb v. Moss (unreported, 12 October 1983) this Court has recently said that the Judicial Review Act must be given a wide construction intended as it was to provide comprehensively for judicial review of administrative action in the Commonwealth sphere. The respondent's submission requires one to read the word ``valid'' into the definition of ``decision'' in subsec. 3(1) before the word ``enactment''. In the context of an Act intended to have the wide application of this one, I see no reason for doing so. The decision is under what purports to have been an Act of the Commonwealth Parliament. In my opinion the legislature intended such a decision to be open to review notwithstanding that the only attack upon the decision was an attack upon the legislation under which it was made. For the purposes of the Act, the decision was still

ATC 4771

a decision under an enactment. On this question I refer generally to
Collector of Customs (N.S.W.) v. Brian Lawlor Automotive Pty. Ltd. (1979) 24 A.L.R. 307 especially per Bowen C.J. at pp. 313-315.

The objection to competency having been overruled, what are the remaining issues? The first is the validity of the legislation, a matter I propose to leave till the end, and the second, the third ground in the amended application. It is essentially based on para. 5(2)(b) and 5(2)(j) of the Judicial Review Act. In the end it was para. (2)(b) which was relied upon. That paragraph provides, by reference back to para. 5(1)(e), that an improper exercise of a power is to be construed as including a reference to failing to take a relevant consideration into account in the exercise of a power.

In
The Queen v. The Australian Broadcasting Tribunal & Ors.; Ex parte 2HD Pty. Ltd. (1979) 144 C.L.R. 45, the Court said (pp. 49-50):

``Here the problem lies in ascertaining what are the proper limits of the discretion. In the absence of some positive indication of the considerations on which a grant or refusal of consent is to depend, the discretion is `unconfined except in so far as the subject matter and the scope and purpose of the statutory enactments may enable the Court to pronounce given reasons to be definitely extraneous to any objects the legislature could have had in view', to use the words of Dixon J. in Browning (
Water Conservation and Irrigation Commission (N.S.W.) v. Browning (1949) 74 C.L.R. 492 at p. 505). In that case his Honour went on to remark (as he had done earlier in
Swan Hill Corporation v. Bradbury ((1937) 56 C.L.R. 746 at p. 758)), `on the impossibility, when an administrative discretion is undefined, of a court's doing more than saying that this or that consideration is extraneous to the power'.

The applicant therefore shoulders a very heavy, indeed an impossible, burden when it seeks to show in this case that the Tribunal has no discretion to refuse consent except on the ground that the transfer will bring about a contravention of the Act.''

In Sean Investments Pty. Ltd. v. MacKellar (supra) Deane J. said (pp. 374-375):

``As has been seen, a failure to take a relevant consideration into account in the exercise of a power is, under sec. 5(1) and (2)(b), a permissible ground for attacking a decision pursuant to sec. 5 of the Administrative Decisions (Judicial Review) Act 1977. This does not, however, mean that a party affected by a decision is entitled to make an exhaustive list of all the matters which the decision-maker might conceivably regard as relevant and then attack the decision on the ground that a particular one of them was not specifically taken into account. In this regard, I consider that the following comments of the United Kingdom Court of Appeal (Megaw, James and Geoffrey Lane L.JJ:) in
Elliott v. Southwark London Borough Council (1976) 2 All E.R. 781; (1976) 1 W.L.R. 499 at p. 507, in relation to a local authority, are appropriate in respect of the recommendations of the Committee and the decision of the Minister in the present case: `It is clear that the matters which the local authority should consider... vary from case to case. It is not for the court to prescribe a list of matters which must always be considered or to prescribe which factors should be given more weight than others. It is worth repeating that the function of the court, where such issues are raised, is not to substitute its own opinion or decision on matters which Parliament has left to the judgment of the local authority but to decide whether the local authority in reaching its decision has acted in accordance with the statutory provisions.'

In a case such as the present, where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards. The ground of failure to take into account a relevant consideration will only be made good if it is shown that the decision-maker has failed to take into account a consideration which he was, in the circumstances,

ATC 4772

bound to take into account for there to be a valid exercise of the power to decide.''

Also to be taken into account in relation to this head of argument is the passage earlier cited from the judgment (supra at pp. 16-17). The decision of Deane J. in Sean Investments Pty. Ltd. was affirmed on appeal: (1982) 42 A.L.R. 676.

Section 264, like the sections in the cases I have cited contains no criteria which the Commissioner is to take into account before deciding to issue a notice under sec. 264. And there is nothing there said as to the matters to be taken into account in determining whether a request to extend the time for compliance with such a notice should be granted or refused. Indeed, it was argued at one stage that because there was no reference at all to time in the section, the Commissioner had no power to extend any time limited by him for compliance with his notices. It was said that when the Act intended the Commissioner to have a power to extend time, it expressly said so, and a number of instances of this were given.

That a notice must in order to be valid limit a time and designate a place for compliance seems common sense, and is in any event established by the decision of the New South Wales Court of Criminal Appeal in
Ganke v. D.F.C. of T. 75 ATC 4097, especially at p. 4100. The Commissioner under sec. 8 of the Assessment Act which is in Pt. II of that Act, and thus picked up by the Recoupment Act, is to have the general administration of the Act. In my opinion that gives him ample power and discretion to extend the time he has limited in a notice under sec. 264 for compliance with it. But there is of course no indication in the Act of the criteria which are to guide the Commissioner in making a decision to grant or refuse such an extension of time.

The particular matters upon which reliance was placed by the applicant to found the relevant consideration ground were:

  • (a) Compliance with the notice would involve the applicant in a breach of its duty of confidence to the companies who were involved. It is to be observed that it is the duty of confidence which is referred to; no reliance was placed on legal professional privilege.
  • (b) To furnish the information and to produce the documents at this stage, when the exercise might prove unnecessary if the legislation were invalidated, might involve the applicant or its clients in a great deal of unnecessary expense and time and trouble.
  • (c) The applicant had given an undertaking in the letter that was written on 12 August 1983, that during the period of an extension of time it would not do any act which would impair the capacity of the applicant to supply the information requested in the notices.
  • In addition to these grounds, there seemed to me to pervade the submissions of the applicant the suggestion that the respondent had paid insufficient attention to the fact that the Recoupment Act was under serious challenge in the High Court.

There is evidence, as I have mentioned, that the matter of the undertaking was placed before the respondent before he made his decision. The same applies to the matter of confidentiality which is also relied upon. I can find no evidence relating to time, expense and trouble, although it is true to say that there is evidence which has been placed before me of that matter in an affidavit of Mr. Ahern. However, it is what was placed before the respondent that is important.

In my opinion, this is a case where the principles enunciated in the 2HD case and the Sean Investments case apply. I have reached the conclusion that it is not a case where the Commissioner was bound to take into account any of the matters upon which reliance is placed. In passing it may be observed that if the respondent had taken into account the matter of confidentiality, he might well have considered that there was a sufficient protection afforded to the applicant under sec. 16 of the Assessment Act. But his reasons do not disclose that that matter was taken into account, so that is not a consideration upon which one should rely in reaching a conclusion in this case.

In my judgment in
Ahern v. D.F.C. of T. 83 ATC 4698, I took the view that although the discretion in that case was equally wide, the fact that an objection had not been dealt with was, in the circumstances of that case, a matter which the Deputy Commissioner

ATC 4773

there was bound to have regard to. In my opinion, this case falls on the other side of the line. The matters relied upon, except perhaps that of expense (about which he does not appear to have been told) are certainly matters which the respondent could have taken into account if he had chosen to do so. But the discretion is his, and it is a matter for him how he exercises it. Accordingly, I reject the submissions made in support of ground three of the application.

The other grounds, that is to say, 1, 2 and 4, as earlier said depend upon the legislation being invalid. The parties have offered to argue that matter before me. I have expressed the strong view that it is futile for them to do so. The matter is under reservation in the High Court. It is true that it may be some time before the judgment is given. But if the matter were argued before me, it could not be so argued in under, I would think, two days. I would need to reserve my judgment. It would be almost certain that there would be an appeal from what I did to the Full Court of the Federal Court, and then to the High Court; or it may be that the matter would be removed into the High Court under the provisions of the Judiciary Act 1903. There is simply no usefulness in my giving a judgment in the matter. That is because it will not be left to me to decide it. The matter will be decided when the High Court gives its judgment in the other cases in due course.

If I were to attempt to deal with the argument, this matter would inevitably find its way into the High Court, unless somewhere along the line the High Court were to deliver judgment and the matter were put an end to in that way. Although I may have indicated to the contrary yesterday morning, on reflection overnight, I have reached the firm conclusion that I ought not embark upon the hearing of the argument, and I do not propose to do so. For that reason, the matters yet to be determined in this application will be stood over to be dealt with at a later date. That means that the essential question which has to be considered is whether the interlocutory relief which has been granted so far should continue. It is a matter upon which I am prepared to hear the parties now or at some future time.

(Discussion ensued. After an adjournment his Honour made the following orders:

1. The objection to competency be overruled.

2. The respondent to pay the applicant's costs thereof.

3. Application stood over generally with liberty to either party to restore it to the list on 7 days' notice to the other.

The respondent made no application for the dissolution of or the variation of the terms of the existing interlocutory orders.)


Back to top

This information is provided by CCH Australia Limited Link opens in new window. View the disclaimer and notice of copyright.