Deputy Commissioner of Taxation (Cth) v Moorebank Pty Ltd [1988] HCA 29

High Court of Australia Mason C.J. Brennan, Deane, Dawson and Gaudron JJ. Deputy Commissioner of Taxation (Cth) v Moorebank Pty Ltd [1988] HCA 29

ORDER Appeals allowed. Adjourn the further determination of these matters to a date to be fixed to allow the parties to submit, on or before 27 June 1988 draft orders giving effect to the judgment of this Court and, in the event of the parties not being in agreement, to make written submissions with respect to the form of those orders. Appeal allowed. Order that the appellant pay the respondent's costs. Set aside the judgment of the Court of Appeal of the Supreme Court of New South Wales save as to costs and in lieu thereof dismiss the appeal.

Cur. adv. vult.

The Court delivered the following written judgment:—

1988, June 9 Mason C.J., Brennan, Deane, Dawson and Gaudron JJ.

Deputy Commissioner of Taxation v. Moorebank Pty. Ltd.

The issue raised by this appeal is essentially one of statutory construction. It is whether the effect of s. 64 of the Judiciary Act 1903 Cth is to apply limitation periods imposed by the Limitation of Actions Act 1974 Q. ("the Queensland Act") to an action brought by a Commonwealth Deputy Commissioner of Taxation in the Supreme Court of Queensland for recovery of income tax and "additional tax" payable under the provisions of the Income Tax Assessment Act 1936 Cth ("the Assessment Act").

The income tax which the Deputy Commissioner claims in the present case is in respect of income earned during the tax years ended 30 June 1974, 1975 and 1976. The additional tax is for non-payment of that income tax: the Assessment Act, s. 207. In its defence, the respondent taxpayer ("Moorebank") pleaded what Connolly J. described in the Supreme Court as "as many conceivable grounds of defence as the ingenuity of the pleader could devise". Among them were pleas to the effect that the Deputy Commissioner's claim was wholly or partly barred by applicable provisions of the Queensland Act. The Deputy Commissioner demurred to a number of those defences, including those based on the Queensland Act. The demurrer to the Queensland Act defences was overruled by the Full Court of the Supreme Court (Connolly and McPherson JJ., Derrington J. dissenting) [1] . The present appeal to this Court is from the decision and judgment of the Full Court in that regard. It is common ground that, if the relevant provisions of the Queensland Act are applicable to bar the Deputy Commissioner's claim in the Supreme Court, the demurrer was correctly overruled for the reason that, if that be so, the pleas of the Queensland Act would constitute a full answer to the Deputy Commissioner's claim for income tax and a partial answer to the claim for additional tax. It is also common ground that the relevant provisions of the Queensland Act are not directly so applicable and that, if (as Moorebank argues) they are indirectly applicable, it must be by virtue of the operation of s. 64 of the Judiciary Act.