Addy v Commissioner of Taxation (Special leave decision)
Judges:
Gageler J
Gordon J
Court appealed from: Federal Court of Australia (Full Court)
Addy
v. Commissioner of Taxation
[2020] FCAFC135
2020 ATC 20-756
(2020) 382 ALR 68
[2021] HCAtrans 17
Date of decision: 11 February 2021
Result: Special leave granted for ground 1.
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 11 FEBRUARY 2021, AT 12.31 PM
Copyright in the High Court of Australia
MR T.H.J. HYDE PAGE: May it please the Court I represent the appellant. (instructed by Harmers Workplace Lawyers)
MR G.J.D. DEL VILLAR, QC: May it please the Court, I appear with my learned friend, MR D.J. BUTLER, for the Commissioner. (instructed by Australian Government Solicitor)
GAGELER J: Thank you, Mr del Villar. Mr Hyde Page, we are inclined to take the view that you should be granted special leave to appeal on ground 1 of your application, but should not be granted special leave to appeal on the remaining grounds. Now, do you seek to dissuade us from that course?
MR HYDE PAGE: Your Honour, I might speak briefly to that point, if it please the Court. The status of my client, Catherine Addy, as an Australian tax resident, is essential to the relief that she seeks in this case and, while it is true there was a finding in the lower court that Ms Addy was a tax resident, at the time and prior to the filing of this special leave application the respondent indicated that the respondent would be filing a notice of contention in respect of residency, which is the respondent's right under the applicable rules. Now, for that reason, the applicant decided to include the additional special leave questions. The explanation for that is simply that there were two choices at that point: the applicant could either await the filing of a notice of contention and then seek an extension of the special leave grounds; or, alternatively - and this is the course that the applicant did take - we decided to perhaps play things in a more clean fashion and state all of the issues that would arise upon the filing of a notice of contention.
GAGELER J: All right. So those are entirely defensive in response to an anticipated notice of contention?
MR HYDE PAGE: That is correct, your Honour.
GAGELER J: Perhaps you could deal with that in reply.
MR HYDE PAGE: If it please the Court.
GAGELER J: Mr del Villar, it is an important question, question 1, is it not?
MR DEL VILLAR: Yes, your Honour, I admit that. We would submit that question 1, the Full Court's decision was correct with regard to question 1, but we recognise that it is a matter of importance. With regard to the remaining grounds, in my submission, this is not a suitable vehicle for special leave. I can illustrate that by - - -
GORDON J: Well, the separate question - notice of contention.
GAGELER J: What about this notice of contention?
GORDON J: Are you going to file one?
MR DEL VILLAR: My client is inclined to file one, your Honours, but their notice of contention would not - at least as presently advised, I can indicate that we would not be seeking to overturn the finding that the Commissioner did not specifically turn his mind to the application of the proviso in the 183 day test.
GAGELER J: Well, how can you succeed?
GORDON J: What would the notice of contention raise?
MR DEL VILLAR: It would raise a question about the proper interpretation of the 183 day test rather than that actual finding, and that proper interpretation is the one that was rejected by the Full Court and which was described by one of the judges there as a "holistic interpretation" which is that until the Commissioner turns his mind to whether or not the 183 day test applies, the provision does not apply.
That would not raise the issues - many of the issues, anyway - that Mr Hyde Page seeks to raise about the 183 day test and so on because Mr Hyde Page's client would seem to be saying in fact either the position is that an error must be demonstrated, and we would be saying, well, there was no state of mind so there was no error, or, as I apprehend the position to be, Mr Hyde Page's client is saying, well, one does not need an error; the court can always and in any circumstance substitute its state of satisfaction for that of the Commissioner and, in my submission, that would be completely contrary to the line of authorities such as Avon Downs and other things. So that will not help Mr Hyde Page's client.
GAGELER J: It seems to be a sideshow. The case was set up to deal with what everyone agrees is an important question of the construction and application of Article 25 of the Double Tax Agreement, and yet both parties seem to have distracted themselves and distracted the court below with this additional argument about residence. Are we to persist in that in the appeal?
MR DEL VILLAR: Your Honour, I can only go with my instructions.
GORDON J: This was a test case on this very question - ground 1, which is the subject of the application for special leave.
MR DEL VILLAR: It was, your Honour, and it was only upon Ms Addy insisting that she wanted to claim that she was a resident for the entire 12 months that the issue about residence was raised.
GAGELER J: Mr del Villar and Mr Hyde Page, our inclination is to grant special leave, limited to ground 1, and give leave to Mr Hyde Page to renew his application for special leave to appeal in relation to the remaining grounds in the event that the Commissioner files a notice of contention. In the absence of a notice of contention, there will be no need for that leave to be exercised.
MR DEL VILLAR: I understand the position, your Honours.
GAGELER J: All right. Well, Mr Hyde Page, do you understand the position?
MR HYDE PAGE: Yes, your Honour.
GAGELER J: Very well. Those are the orders we make.
MR DEL VILLAR: May it please the Court.
GAGELER J: The Court will adjourn to reconstitute.
AT 12.38 PM THE MATTER WAS CONCLUDED