Australian Communication Exchange Ltd v Deputy Commissioner of Taxation [2003] HCA 55

HIGH COURT OF AUSTRALIA

GLEESON CJ,

McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ

AUSTRALIAN COMMUNICATION EXCHANGE APPELLANT

LIMITED

AND

DEPUTY COMMISSIONER OF TAXATION RESPONDENT

Australian Communication Exchange Ltd v

Deputy Commissioner of Taxation

[2003] HCA 55

1 October 2003

B71/2002

ORDER

1. Appeal allowed with costs and cross-appeal dismissed with costs.

2. Set aside paragraphs 1 and 2 of the orders of the Full Court of the Federal Court made on 28 November 2001 and the consent order made on 20 December 2001. In lieu thereof, order that the appeal to that Court be dismissed with costs.

On appeal from the Federal Court of Australia

Representation:

G C Martin SC with L F Kelly for the appellant and cross-respondent (instructed by Corrs Chambers Westgarth)

J J Batrouney SC with M M Brennan for the respondent and cross-appellant (instructed by Australian Government Solicitor)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Australian Communication Exchange Ltd v Deputy Commissioner of Taxation

Industrial law (Q) – Award – Superannuation – Employer's liability to pay "superannuation guarantee charge" dependent on payment of superannuation contributions in accordance with Clerical Employees Award (State) (Q) – Award requirement to contribute "3% of the employee's ordinary time earnings" – Whether employer had complied with Award – Casual employees – Meaning of "ordinary time earnings".

Appeal – Decision of appellate court – Whether disentitled to decide case on an interpretation of a contested instrument different from that contended by either party – Whether bound to decide case on arguments advanced by the parties – Whether entitled to adopt a view on the construction of an instrument different from that contended by either party.