Ergon Energy Corporation Limited v The Commissioner of Taxation of the Commonwealth of Australia

[2007] HCATrans 101

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• The impact of this case on ATO policy is discussed in Decision Impact Statement: Ergon Energy Corporation Ltd v Commissioner of Taxation (Published 10 May 2007).

(Judgment by: Kirby, Hayne and Crennan JJ) Court:

Judge:
Kirby, Hayne and Crennan JJ

Judgment date: 2 March 2007

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Judgment by:
Kirby, Hayne and Crennan JJ

Application for special leave to appeal

Transcript of Proceedings

At Canberra on Friday, 2 March 2007, at 9.33 AM

MR D.F. JACKSON, QC : If the Court pleases, I appear with my learned friends, MR J.A. LOGAN, SC and MR C.D. COULSEN , for the applicant. (instructed by King & Company)

MR N.J. WILLIAMS, QC : May it please the Court, I appear with MR F.W. REDMOND for the respondent. (instructed by Australian Government Solicitor)

KIRBY J : Yes, Mr Jackson.

MR JACKSON : Your Honours, may I deal first with the more general proposition we wish to advance and then come to something more specific about the circumstances. The fundamental question which we seek to agitate, stated if I may first broadly, concerns how to delineate for the purposes of the "limited form of appeal" - I use the term in inverted commas - provided for by section 44(1) of the Administrative Appeals Tribunal Act 1975 between questions of law and questions of fact, but stated more narrowly, it concerns what I might perhaps describe for brevity as the fifth proposition in the test stated in Pozzolanic which your Honours will see in volume A of the volumes of materials behind tab 12 at page 287.

Now, your Honours will see that there is an endeavour made there by the court to set out in five propositions the relevant tests and may I refer to the fifth proposition in particular which is the question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law. But then one sees over on the next page the qualification to that in the third line on page 288:

This principle is qualified when a statute uses words according to their ordinary meaning and the question is whether the facts as found fall within those words. Where it is reasonably open to hold that they do, then the question whether they do or not is one of fact -

Now, your Honours, this is a case, in our submission, where, if one looks at the words used in the relevant statutory language they are of a very ordinary kind in the sense of having a very ordinary meaning. Your Honours will see a - - -

KIRBY J : You are making it sound a very ordinary case.

MR JACKSON : Well, your Honour, I am trying to set out that it was an ordinary case in that respect, but which was treated as extraordinary in the way in which it was dealt with by the majority in the Full Court, extraordinary to the extent meriting the grant of special leave.

KIRBY J : You got a dissent from Justice Gyles.

MR JACKSON : Yes, your Honour. Your Honours, the words in question were contained in a definition of "residential premises". Your Honours will see that behind tab 3 in volume A at the page numbered 288 where it says:

residential premises means:

(a)

premises used as a house; or

(b)

other premises at which at least one person resides; but does not include -

a number of matters there. Your Honours, those are fairly ordinary words and one sees the terms of the rebate provision at page 271 and - I should say it commences at page 270, section 164(1):

A rebate is . . . payable to a person who purchases diesel fuel for use by him -

Then your Honours will see paragraph (b) and also, your Honours, there is paragraphs (c) and (d). The point I would seek to make about it, your Honours, is simply that none of the words being used is used in a particularly technical sense and they have been the subject of a number of decisions, none of which was challenged in the case, and your Honours will see that we have endeavoured to set out a summary of the effect of the decisions in the application book at the bottom of page 102, paragraph 26 and the various subparagraphs of paragraph 26.

KIRBY J : What is involved? How much is involved in the matter?

MR JACKSON : Altogether about 20 million, I understand, your Honour. When I say altogether your Honour will appreciate that these were test cases. The four islands were selected as test cases covering a spectrum. I think there were 18 altogether. The approach taken by the majority in the Full Court, in our submission, has been to mute the qualification to the fifth Pozzolanic proposition. May I, in that regard, take your Honours to what appears to lie at the heart of the majority's reasons at page 74. It is in paragraphs 46 to 49 and my I take your Honours to the most important parts there. Your Honours will see in the commencing part of paragraph 46 that it is said:

The question of whether the facts fully found fall within the provisions of a statutory enactment properly construed is a question of law.

Then there is a quotation from Hope v Bathurst City Council and a reference to Vetter. Your Honours will see in paragraph 47 strong authority for the proposition that:

where the facts have been found and the only question is whether they fall within a statutory provision, the question is one of law -

Your Honours will see, then, if I could come to page 75, about line 25 what is said is:

The authorities on these rebate provisions amply demonstrate that, as the primary judge held, the application of the words . . . necessarily involves a selection process about a range of relationships.

Your Honours, with respect, this sentence is a little difficult to construe:

In the present case, even if the material before the AAT did reasonably admit of more than one conclusion as to whether or not the statutory criteria were satisfied, the question of whether the material did so admit was necessarily a question of law.

In our submission, your Honours, that really leaves out of account the qualification that one sees expressed to the fifth Pozzolanic proposition, if I can put it that way. It has significant potential effects, your Honours, because if one goes to, as Justice Gyles said in his dissent at page 87, paragraph 85 at about line 30:

The Administrative Appeals Tribunal only has jurisdiction pursuant to statute and it follows that the ultimate question as to the application of statutory criteria to facts would arise in every case.

Your Honours will see what he says in the next two sentences. It is always possible, of course, to say that there will be a stream of cases, and no doubt his Honour is not endeavouring to convey that, but the fact of the matter is that the legislature has committed to the AAT the question of finding of facts, subject to error of law, and that is something that should be respected and an extension, of course, of the ambit of error of law, questions of law, does have the effect that there are fewer matters that remain within the jurisdiction of the AAT that are uncorrectable.

That, your Honours, means, in our submission, that the legislatures view of things, I do not say has been subverted, but the position has somewhat changes. Could I also come to the application of those views by the majority in this case and they seem difficult, with respect, to align with the findings that had been made by the Tribunal. May I go to page 82, your Honours. The part to which I am going to refer your Honours commences at page 82 and your Honours will see at paragraph 69 it is said that:

the AAT concluded that EECL undertook the generation of electricity on the islands for specific purposes including the supply of electricity . . . In so doing, it did not address the correct question. This was whether or not, at the time of purchase, EECL purchased diesel fuel for use by it at residential premises in meeting domestic requirements -

and so on.

Now, your Honours, if I could just say this. The Tribunal was dealing with the matters that remained in issue before it and much was not in issue. One can see that, your Honours, from page 9 of the application book in paragraph 8 and it said:

There is no dispute that the applicant and its predecessors purchased diesel fuel to power generators located on each of the above islands and that an unascertained portion of the fuel purchased was used to generate and supply electricity to residential premises located on each of these islands. There is also no dispute -

Your Honours will see the remainder of that sentence as well. Your Honours, if one goes back then to page 82 and to paragraphs 70 and 71, it was not, to put it shortly, in issue before the Tribunal that it was appropriate to allow apportionment when it was worked out how much of the electricity was for use in the areas covered by the rebate.

KIRBY J : Does not this analysis, which I understand you have to perform, really reveal why this matter is not a matter appropriate to the High Court? I do take the point of the amount at stake and that is a matter that concerns me, but we are then engaged in an exercise finding out exactly what was in issue in the AAT. We have common principles which the Full Court majority referred to and there is no dispute about the core principle. It is a matter of considering whether or not in the particular case undisputed core principles were applied and that does not seem an appropriate matter for this Court.

MR JACKSON : Your Honour, if I may say so, and I will come back a little more fully to what your Honour put to me, why I am going to the particular passages is to say, although the majority in the Full Court purported to identify a principle, what in fact they were doing was to treat the case as one where the operation of the principle was not qualified by the conception to which I referred as the qualification to the fifth principle. They were doing that, your Honour, and that they did that, in fact, appears from the passages to which I have been referring.

Your Honours, the point I am seeking to come to really is to say that what gives rise to an issue of principle in the case is that the approach taken by the majority in the Full Court is one which in fact leaves out of account that last part of the principle. If that is applied in future cases, it does have the consequence to which Justice Gyles referred and to which we have referred as well, your Honours, in our written submissions in reply.

KIRBY J : Let us just direct our attention to what you say is the essence of Justice Gyles' reasoning.

MR JACKSON : Yes. His reasons commence at page 84, your Honours. Your Honours will see - - -

KIRBY J : Yes, we have all read the reasons and of course they are very persuasive.

MR JACKSON : Yes. I was going to say, your Honours, they commence there. Where one comes to the essential parts of it are in paragraph 85 to which I referred earlier, which is at page 87. Your Honours will see then paragraphs 86 and 87 and it really goes through, your Honours, to about paragraph 89. Our submission is that what Justice Gyles has done has been to identify that the issues that were involved were issues which were fundamentally questions of fact as distinct from questions of law. The approach taken by the majority, if I could use the expression again, mutes the distinction and converts questions of fact into questions of law and that is why I was referring your Honours to our submissions in reply at page 114, the quotation from Aronson at the bottom of page 114 and, your Honours, we would refer also to the two passages quoted on page 115, one from Chief Justice Barwick and the other from Justice Glass in Azzopardi.

HAYNE J : Has it, perhaps, come to this, Mr Jackson, that on your submission you are attempting to erect what would be a bright line test? May not the answer to that be that the test is not a bright line test? The distinction between questions of fact and questions of law has bedevilled the law since heaven knows when.

MR JACKSON : Your Honour, may I put it in two ways, perhaps. One is to say that one recognises that there is a relationship between questions of law and questions of fact and that there are sometimes difficulties in characterisation. Sometimes a question is, of course, conveniently described as mixed fact and law, but having said that, your Honours, we are not really attempting to say that there is a bright line distinction that we are endeavouring to erect. What we are saying is that there really is a distinction between questions of fact and questions of law in the relevant area. I am not talking about the subject matter particularly.

HAYNE J : The statute requires you to draw the distinction of course.

MR JACKSON : That can be seen satisfactorily drawn in the fifth proposition and the qualification to it. What we say is that what the majority in the Full Court has done has been not to pay regard to the existence of that difference or distinction and by the approach which is taken, really, to put that distinction or the second part of it out of being, the result being that the way in which the legislature has determined that there should be appeals, a jurisdiction of the Federal Court, relevantly, being put, in effect, to sleep. Your Honour, I do not know that I can answer it more fully than that. It does involve a question of application of a principle, but the question arises because the way in which the Full Court approached it, by a majority, really fails to give effect to it and it is an important issue, in our submission, that the distinction be recognised and preserved.

HAYNE J : Did their Honours in the majority refer to this aspect of Pozzolanic?

MR JACKSON : Your Honour, what one sees is at page 74 and it is the part between lines 35 and 40. So, there is a reference to it, your Honour. I accept that, or reference something akin to it. But having said that, one then sees the remaining paragraphs that follow are ones which treat the issue as purely one of law. Your Honours, may I just say, if I could go back for a moment to what was said by the majority, your Honours, at paragraphs 70 and 71 on pages 82 and 83? The approach taken by them in those paragraphs seems to involve an assumption that there could not be any apportionment of things, but it was not in issue before the Tribunal that it was appropriate to allow apportionment and, indeed, the issue or the amounts had to be apportioned following the decision of the Tribunal had there not been an appeal.

Your Honours will see that referred to at page 23, paragraph 76 in the Tribunal's decision. Your Honours, the decisions that allow apportionment are referred to at page 103 in the passage to which I referred earlier. So too do the decisions which establish that the fact that we are in the business of supplying electricity does not disqualify us from the rebate, and again they are decisions referred to at page 103.

HAYNE J : I had read much, at least, of what the majority said as turning upon the proposition found in line 1 on page 83. It is a sentence beginning in the second last line of page 82 as turning on the proposition that the diesel fuel was not "for use by it 'at' residential premises".

MR JACKSON : Yes, your Honour. The cases which were not challenged in the cases in the Full Court of the Federal Court have established the term "at" does not necessarily mean on the same premises. Now, that being so and that matter not being in issue, it just becomes a question of fact, in our submission, whether they are or are not "at" in the relevance sense.

HAYNE J : There is reference, I think, to a locational and purposive or some such expression combination.

MR JACKSON : Shorthand expressions, yes, your Honour, for ultimately the resolution of what is a question of fact. Your Honour, those are our submissions.

CRENNAN J : The correct question, according to the majority is set out at paragraph 69, the penultimate sentence, and that is referred back to in a sentence which Justice Hayne referred to and the question really was for it, was it not, whether it was used by it? That is a reference back, I think, to section 164(7).

MR JACKSON : There was no doubt that it was used by it, your Honour, "it" in the sense of being us. That really was not in issue. We were generating the electricity and, as I said before it is established by the decisions, and again we have referred to them at page 103, that you do not have to be the person who owns the residence, for example. The Cowell Electric Supply Co Ltd Case is one of the decisions to that effect in the Full Court. Your Honours, may I just say one further thing and that is that the legislation imposes a limitation on the ability to appeal and, in our submission, it is a limitation which should be respected.

KIRBY J : A lot of money turns on the decision, Mr Williams. In the old days there would have been no difficulty for the applicant to get up here.

MR WILLIAMS : In old days there was no question of general or public importance test and if money were the sole criterion then many cases would qualify which do not. The amount of money is one that concerns, no doubt, the applicant, a private corporation. It does not concern the communities in question, as the Tribunal found. It is a matter between a private corporation and the Commissioner. That in itself does not distinguish it - - -

HAYNE J : You make that sound as though that is somehow disgraceful or disqualifying. It is not immediately apparent that it is, Mr Williams.

MR WILLIAMS : I do not say it in that sense, your Honour, but it is not a case in which an individual has their house at stake or it does not have any of the dimensions that can be involved where there is a large sum and an individual rather than a commercial corporation . The great run of tax cases involves substantial sums of money and that is not a criterion in itself for the grant of leave.

KIRBY J : I find it hard to get out of my mind that if there is a lot of capital or a lot of money involved, that that is a matter which is important to a lot of investors and a lot of people in the company, and that, therefore, as it were, gives a bit of leg up because when we have cases where it is very small amounts involved, it is pressed upon us, well, this is only a trivial matter, do not deign to trouble yourself with it. But anyway, let us pass beyond that. I mean, the fact is that there is a lot at stake.

MR WILLIAMS : Your Honour, I cannot say more than that it does not step outside the routine class of tax special leave application where the amounts are routinely large. That which divided the majority from the dissentient in this case is not a question of principle about the approach to errors of fact and law. The difference was over the construction of the now long repealed statute. The majority approach your Honours have been taken to at page 75 of the application book at about line 30 involved a recognition that a range of relationships could fall within the statutory provision and a recognition that the material might reasonably admit of more than one conclusion within that range.

With that recognition of the range of permissible scope of the statute the margin of application of the statute to the facts as found the majority nevertheless found, first, that there was an application of the wrong test, which is a question that does not raise the Pozzolanic fifth proposition at all and, secondly, that the conclusion reached on the facts found was not open, not that the Tribunal reached the wrong conclusion, but that it reached a conclusion that was not open on the facts found.

The reference at page 75 to TNT Skypak at about line 20 is significant. That case is at tab 11 of the materials, part A of the materials that the applicant has filed. Page 182 is the page to which the joint judgment the majority below refers in the judgment of Justice Gummow. Page 182 at about line 35:

However, the material before the court or tribunal may reasonably admit (as matters of "degree" or of "fact and degree") of several conclusions as to whether the statutory criterion is satisfied. The question whether the material reasonably so admits of several conclusions is one of law. If the answer is in the affirmative, it is then necessary to decide which is the correct conclusion. That is a question of fact.

So, in the key passage - - -

KIRBY J : It is very similar to what Justice Hayne was putting to Mr Jackson, really, that the search for the completely bright line is illusory.

MR WILLIAMS : Yes, which colours what follows in the joint judgment, the majority judgment, at page 75, a recognition that there is a of appreciation in the application of the statute. That is a matter of fact. That is, indeed entirely - - -

KIRBY J : On the other hand, we have here the position where the fact-finder, the AAT, has found one way and then Justice French reversed that so that on the different levels of the hierarchy we had different views of the decision-makers, but the fact-finder found in favour of the applicant.

MR WILLIAMS : The fact-finder found in favour of the applicant on the ultimate question based on uncontested findings of fact, but the basis on which the joint judgment, the majority judgment, at page 82 found that to be erroneous, and this reflects perhaps more fulsomely the approach of the primary judge, was that it involved two errors. The first error, page 82 at about line 20, "In so doing, it did not address the correct question." So there is a finding that the Tribunal addressed the wrong question. That is as orthodox an error of law as can be imagined and does not - - -

KIRBY J : That is the same approach that Justice French took?

MR WILLIAMS : Justice French emphasised the second aspect that the joint judgment, the majority judgment, emphasised, that is that found at the foot of page 82:

On the facts as found, it was not, however, open to the AAT to find that, at the time of purchase, EECL purchased the fuel for use by it for the specific purpose(s) . . . including for use by it "at" residential premises - - -

KIRBY J : That is the conventional language of an error of law. Not open.

MR WILLIAMS : Making a finding that is not open. Not that it made the wrong finding, but it made a finding that is not open. That is an entirely orthodox formulation of the error. When one looks at the language of the provision which one can find at page 7 of this book, or summarised in the Tribunal's reasons at page 7 of the book, that conclusion really is one that follows directly from the language. The fuel must be purchased:

for use by the person ("him or her" in the Excise Act ):-

(b)

at residential premises to generate electricity for use in . . .

(c)

at a hospital -

By what stretch of the statutory language can it be said that on Thursday Island where the hospital was at the other end of the island from the generator, 1.6 kilometres a way, the applicant purchased fuel for use by it at a hospital? This is outside the range of the statute. The majority's conclusion expressed at pages 82 and 83 is an entirely orthodox application of the two questions of law that it addressed. First, it did not address the correct question, as I have said, not something that involves the fifth proposition in Pozzolanic at all, and, secondly, the finding that it reached on the - - -

KIRBY J : Seeing as you have opened up the merits and facts, is it not perhaps arguably one of the purposes of the legislation to get a company such as the applicant to go to Thursday Island and provide a generator and that that is one of the objectives?

MR WILLIAMS : If that were a purpose of the legislation the legislation would be drawn differently. The core terms of the legislation are directed, as Justice French observed, to facilitating funding providing assistance with the generation of electricity at particular premises. Generation provision by third party statutory corporations or private corporations of electricity generation facilities in these kind of circumstances is a matter that would be drawn quite differently.

KIRBY J : Like the majority, you latch on to the preposition "at"?

MR WILLIAMS : Yes, it is central. The words may be ordinary English words but, nevertheless, there is a question of construction involved in ascertaining the range of the statute; for use by him or her "at residential premises to generate electricity" or for use by him or her "at a hospital or nursing home". On any view, in our submission, the facts to which I have referred fell outside that. Perhaps I should simply refer briefly to the finding of fact about Thursday Island which is at paragraph 38 at page 14:

The power station is shown as located in an area that I would describe as light industrial, well away from the residential areas on Thursday Island but in the vicinity of the cemetery. The hospital is almost literally at the other end of the town, being 1.6 km from the power station -

Some of the other residential locations may have been more favourable, but one can say without any qualification that defined that the use of the fuel in question here purchased for use at the generator site was not purchase of fuel for use at the hospital. So, to that extent, there was, as the primary judge in the majority held, a clear error of law, a finding that was outside the range of the statute. The particular finding made about failure to address the correct question at page 82, paragraph 69, is, with respect, also self-evidently correct. The finding that the Tribunal made was that it:

undertook the generation of electricity on the islands for specific purposes including the supply of electricity to residential premises, hospitals and homes for the aged; and that these were the dominant purposes of supply on all but Waiben. In so doing, it did not address the correct question. This was whether or not, at the time of purchase, EECL purchased diesel fuel for use by it at residential premises - - -

KIRBY J : You are only reading us now the passage Justice Hayne drew attention to.

MR WILLIAMS : Yes, I was going to go from that just to draw attention to the passage of the Tribunal's reasons at page 24 to which that refers.

KIRBY J : Page?

MR WILLIAMS : Page 24 of the application book, paragraph 79.

KIRBY J : Yes.

MR WILLIAMS : The Tribunal draws:

The basic distinction between the Rottnest Island case and the present cases -

and its distinction is based on its finding that -

the applicant undertakes generation of electricity for specific purposes which include purposes of supply to residential, hospital and aged care facilities in communal situations that are discrete, physically compressed, cohesive and geographically isolated. Those are the dominant purposes on each island except Thursday Island. That there are specific purposes and not just a purpose of supply of electricity to anybody is exemplified by the heavily subsidised charges for supply.

There is then a reference to the applicant's obligation, in paragraph 80, a reference to it being "beneficial legislation" and at 81:

However, I am satisfied, on the basis of the authorities, that both the purposive and location tests are satisfied in these cases. In relation to Thursday Island . . . cannot be distinguished from the circumstances of the other islands.

To the extent to which the reasoning process of the Tribunal is made clear, it is in these passages and they show, with respect, the application of the wrong test. If I can take the Court to one passage in Justice Gyles' judgment at page 88 to illustrate that the point which divided the majority from the dissentient was not a question of principle, but rather one about the construction of the statute. In paragraph 88:

Although not expressed, it is possible that the primary judge intended to say that there was only one possible answer to the question in this case, ie that it was not open for the Tribunal to have found as it did.

That, of course, is one of the specific findings that the Full Court made, the majority made. "If so, I respectfully disagree." This is the point of departure between the majority and Justice Gyles and it is a question of construction of a now repealed statute. While that is, in our submission, sufficient to dispose of the suggested special leave question, which is in truth one of construction rather than of principle, the suggestion by the dissenting judge that any doubtful question of construction of the statute had been settled by prior authority, with respect, conceals the central problem that the trial judge had to contend with. The case is pointed in different directions and none was directly in point.

HAYNE J : If his Honour is right about that, his Honour is making a proposition of law. Earlier Full Court decisions resolving questions of fact are of no relevance. Full Court decisions would be relevant if, but only if, they decide questions of law.

MR WILLIAMS : Yes.

KIRBY J : That, I take it, is what you were saying, that when you actually look at what Justice Gyles says he reveals in his own reasons that the point is a point of law.

MR WILLIAMS : Yes, it involves a question of construction and the previous decisions merely serve to emphasise the complexity of the process of construction of the compound phrases involved in the statutory provisions in question. That is a task that is quintessentially one of law.

KIRBY J : Yes. Anything else?

MR WILLIAMS : Your Honours, those are our submissions.

KIRBY J : Thank you. Anything in reply, Mr Jackson?

MR JACKSON : Yes, your Honours. May I deal first with the suggestion that the majority were correct in saying that the Tribunal had addressed the wrong question. Could I just take your Honours for a moment to the way in which the matter was dealt with by the Tribunal and could I go to page 7 of the application book? You will see that the nature of the matter is set out in paragraph 1. The various statutory provisions are then set out. In the application of the statutory provisions the member of the Tribunal at paragraph 8 lists matters germane to that, the resolution of the issues which are not in dispute. He then goes on to make findings of fact dealing with each of the islands in turn.

You will see the Mornington Island dealt with at paragraphs 13 to 19. You will see the Murray Islands dealt with at paragraphs 20 and following. My learned friends, if I may say so, developed an enthusiasm for Thursday Island because it was the one with the facts least favourable to us. May I demonstrate the similar enthusiasm for the Murray Islands where you will in paragraph 27 that the nearest residence is 10 metres away and, I take it, not occupied very much of the day, and, your Honours, paragraph 31, "Of the 108 installations on Murray Island, 93 are to residential premises."

I will not go through the recitation of the facts or the findings, your Honours. One then sees that he set out, commencing at paragraph 49, our submissions; paragraph 53, the respondent's submissions and the consideration which took place. The point that I am seeking to make about all that, your Honours, is that when one - and he refers in paragraph 76 to the fact that there may be an apportionment. One then sees that he comes in paragraph 80 to refer to the legislation being "beneficial legislation" and he is satisfied that both the "tests are satisfied in these cases".

Now, your Honours, it is perfectly apparent, in our submission, that he understood the tests he was seeking to apply and then proceeded to apply them. The facts are different in each case of each island, but the islands were suggested as test cases, no doubt covering a spectrum, and what your Honours will see, in our submission, is that it demonstrates two things. One is that, of course, there were various questions of fact involved. It was simply the case in the application of established principle to particular facts and there is no reason why the decisions that were made by him were ones which were addressing a question other than the one he had identified at the start.

The second thing, your Honours, is this; that our learned friends place some reliance on the word "at" and so on and the fact we are electricity generators. May I simply take your Honours to what is said in the Rottnest Island Case. It is behind tab 22. I wanted to refer to two passages in that. One is at page 185 commencing at letter F and it is said that, and it is an earlier case that is referred to in Perkins Shipping:

The case affirms the proposition that a rebate of duty is not to be denied simply because the diesel fuel is used to power a generator which is itself not situated within the "residential premises" in which the amenities dependent upon that power are to be provided.

Your Honours will see in the last couple of lines on that page, going over to the top of the next page, the reference to the existence of the possibility of apportionment. The last passage I wanted to refer to is at page 191 and your Honours one can see commencing about letter G it is said:

In our view, when this case is read with Pozzolanic, it is apparent that a purchaser of diesel fuel is not necessarily to be denied a rebate simply because he has the intention of using the fuel to generate electrical power which is then to be supplied to a variety of customers.

That goes on to the top of the next page.

HAYNE J : Are their Honours there stating conclusions about the proper construction of the Act?

MR JACKSON : Yes, your Honour. That is a conclusion about the construction of the Act. The application of it to a particular case must depend on the circumstances. The only point I am seeking to make, your Honours, is that this was quintessentially a fact case, a case of fact involving questions of fact with there being no relevant question of law. Those are our submissions.

KIRBY J : The Court will adjourn briefly to consider what it will do in this matter.

AT 10.16 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.20 AM :

KIRBY J : The applicant seeks special leave to appeal to this Court from a judgment of the Federal Court of Australia. That court was divided in its disposition. A majority, Justices Sundberg and Kenny, favoured dismissal of the appeal from orders of Justice French who had set aside a decision of the Administrative Appeals Tribunal and substituted a finding in favour of the Commissioner of Taxation. However, Justice Gyles dissented. He would have allowed the appeal, set aside the orders of Justice French and substituted an order dismissing the Commissioner's appeal to the Federal Court.

An appeal to the Federal Court from the Administrative Appeals Tribunal lies only on a question of law: Administrative Appeals Tribunal Act 1975 (Cth) section 44(1). The point of contention in the Federal Court was whether the issue raised by the respondent's appeal so qualified. If it did not, the Federal Court had no jurisdiction or power to disturb the Administrative Appeals Tribunal's orders. The majority of the Full Court of the Federal Court found that the Tribunal had addressed the wrong question and made findings that were not open on the facts. Classically, these were questions of law.

Accordingly, the matter does not raise a question suitable for the grant of special leave and special leave is refused. The applicant must pay the respondent's costs.

AT 10.22 AM THE MATTER WAS CONCLUDED