Optus Vision v Commissioner of Taxation [2000] FCA 332

FEDERAL COURT OF AUSTRALIA

Optus Vision Pty Ltd v Commissioner of Taxation [2000] FCA 332

PRACTICE & PROCEDURE – notice of motion seeking leave to amend application - whether leave should be granted – whether fixture for hearing should be vacated Sales Tax (Exemptions and Classifications) Act 1992 (Cth), Schedule 1 Items 39(1)(j), 39(1)(k), 43(1)(a) & 41(1)(b). OPTUS VISION PTY LIMITED v COMMISSIONER OF TAXATION NG 510 OF 1998 EMMETT J 13 MARCH 2000 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 510 OF 1998

BETWEEN: OPTUS VISION PTY LIMITED

Applicant

AND: COMMISSIONER OF TAXATION

Respondent JUDGE: EMMETT J

DATE OF ORDER: 13 MARCH 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. Leave be granted to the applicant to file a second further amended application. 2. The hearing fixed for 13 and 14 March 2000 be vacated. 3. The applicant pay, on an indemnity basis, all reasonable costs thrown away by the respondent as a consequence of orders 1 and 2. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 510 OF 1998

BETWEEN: OPTUS VISION PTY LIMITED

Applicant

AND: COMMISSIONER OF TAXATION

Respondent

JUDGE: EMMETT J

DATE: 13 MARCH 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 On 27 May 1998 an application was filed by the present applicant seeking the following: "1. A declaration that fibre optic cable is exempt from sales tax pursuant to Item 39(1)(j) in Schedule 1 to the Sales Tax (Exemptions and Classifications) Act 1992. 2. Further, or in the alternative, a declaration that fibre optic cable is exempt from sales tax pursuant to Item 39(1)(k) in Schedule 1 to the (Sales Tax Exemptions and Classifications) Act 1992." 2 After correspondence between the solicitors for the applicant and the respondent, the Commissioner of Taxation ('the Commissioner'), an amended application was filed on 21 April, 1999 seeking a series of declarations related to fibre optic cable that was the subject of particular sales made at various times during 1996 and 1997. 3 The amended application, however, raised only the question of exemption pursuant to items 39(1)(j) and 39(1)(k) of the Schedule. Those items are relevantly in the following terms: "39(1)The following goods, if they are of a kind ordinarily used as raw materials in the construction or repair of buildings, fixtures, structures or other works that are attached to land