Thakral Fidelity Pty Ltd v The Commissioner of Stamp Duties
[1999] QCA 367
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Thakral Fidelity Pty Ltd v The Commissioner of Stamp Duties[1999] QCA 367
- Add to List
Thakral Fidelity Pty Ltd v The Commissioner of Stamp Duties[1999] QCA 367
Thakral Fidelity Pty Ltd v The Commissioner of Stamp Duties[1999] QCA 367
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No 9180 of 1997
Brisbane
[Thakral Fidelity P/L v CSD]
BETWEEN:
THAKRAL FIDELITY PTY LTD
ACN 062 622 600
(Applicant)Appellant
AND:
THE COMMISSIONER OF STAMP DUTIES
(Respondent)Respondent
McPherson JA
Pincus JA
White J
Judgment delivered 21 August 1998
Further Order delivered 10 September 1999
Separate reasons for further order of each member of the Court; Pincus JA dissenting.
ORDER MADE ON 21 AUGUST 1998 IN APPEAL NO 9180 OF 1997 IS VARIED BY THE ADDITION OF THE FOLLOWING FURTHER ORDER:
THAT THE RESPONDENT PAY INTEREST TO THE APPELLANT:
(A)AT THE RATE OF 5.5% PER ANNUM ON THE SUM OF $3,156,126.05 DURING THE PERIOD FROM 26 MARCH 1996 TO 23 DECEMBER 1998;
(B)AT THE RATE OF 5.5% PER ANNUM ON THE SUM OF $3,094,044.05 DURING THE PERIOD FROM 22 FEBRUARY 1999 TO 28 MAY 1999.
FURTHER THAT THERE BE NO ORDER AS TO THE COSTS OF OR INCIDENTAL TO THIS APPLICATION.
| CATCHWORDS: | TAXES AND DUTIES - Stamp duties- INTEREST - Recoverability of interest - Rate of interest - ADMINISTRATIVE LAW - Judicial Review - "the slip rule" - PUBLIC SERVICE - Boards, Commissioners and Appeals Collector of Customs v Gaylor Pty Ltd (1995) 35 NSWLR 649. Comptroller of Customs v Kawasaki Motors Pty Ltd (No 2) (1991) 32 FCR 219. Johns v Australian Securities Commission (1993) 178 CLR 408. MIM Holdings Limited v Commissioner of Stamp Duties (1998) 99 ATC 4115. Park Oh Ho v Minister for Immigration and Ethnic Affairs (1989) 167 CLR 637 Reis v Carling (1908) 5 CLR 673. L Shaddock & Associates Pty Ltd v Paramatta City Council (No 2) (1982) 151 CLR 590. Taylor v Roe [1894] 1 Ch 413. Judicial Review Act (Qld) 1991 s 30(1)(d). Stamp Act 1894, s 24. Supreme Court Act (Qld) 1995, ss 27, 47(1), 48(1). |
| Counsel: | Mr L Harrison QC for the applicant/appellant Mr Dorney QC, with him Mr J Logan, for the respondent |
| Solicitors: | Phillips Fox for the applicant/appellant Crown Solicitor for the respondent |
| Hearing Date: | 13 May 1998, 23 July 1999 |
- McPHERSON JA: On 26 March 1996 the appellant paid to the respondent Commissioner of Stamp Duties a sum of $3,156,126.05 pursuant to an assessment of duty under s 56C of the Stamp Act 1894. Having done so, the appellant applied under s 20 of the Judicial Review Act 1991 to a Judge of the Supreme Court for a statutory order of review in respect of the respondent's decision to issue that assessment. The application was heard with another such application by the appellant to review a decision and assessment by the respondent under s 56B of the Act. Both applications having been dismissed, appeals were brought to this Court, which on 21 August 1998, delivered judgment in those appeals. In allowing appeal no 9197 of 1997, it was ordered that the respondent Commissioner repay to the appellant a sum of $3,154,264.25 paid by way of duty pursuant to the assessment under s 56B, together with interest calculated under s 24(4A) of the Act at the rate of 5.5% p a. In allowing appeal no 9180 of 1997, the assessment under s 56C was set aside, but the matter was remitted to the Commissioner for duty (if any) payable under the Act to be re-assessed according to law.
- Following the decision in appeal no 9180 of 1997, the Commissioner on 23 December 1998, refunded to the appellant the sum of $3,156,126.05 it had paid by way of duty on 26 March 1996, but without paying any interest on that sum. What was more, on the same date, the Commissioner issued an amended assessment in respect of that matter in the sum of $3,094,044.05. After a further application had been made to review the decision leading to that assessment, the Commissioner withdrew the assessment on 18 January 1999, but followed it with yet another assessment in the same amount. The appellant paid it on 22 February 1999, after having in the meantime applied to have it judicially reviewed. Eventually, on 28 May 1999, the Commissioner repaid that amount of $3,094,044.05, but again without interest. That step was taken after the appellant had on 7 May 1999 issued a notice of motion returnable before this Court to amend the order of the Court made on 21 August 1998 in appeal no 9180 so as to incorporate in it a further order that the respondent pay interest on the difference between the amount of the duty paid by the appellant and the amount of duty ultimately found to be payable.
- In practical terms what has happened here is that the appellant has now been completely successful in its challenge to the original assessment of $3,156,126.05 under s 56C which it paid on 26 March 1996. It has received a refund but without interest, and not until 23 December 1998. In addition, it paid a further sum of $3,094,044.55 on 22 February 1999, which was repaid on 28 May 1999, but again without receiving any interest on that payment. There is some indication that yet another assessment may be in the offing, but we are not here concerned with that possibility.
- On the motion now before the Court, the appellant relied on the jurisdiction conferred on the Court by O 32, r 12 of the Supreme Court Rules 1900, or as it now is r 388 of the Uniform Civil Procedure Rules. The difference, if any, between those two provisions is not such as to require us to decide which of them is applicable here. Both are versions of what is commonly known as "the slip rule" enabling a judgment or order of the Court to be amended after it has been formally passed and entered. In L Shaddock & Associates Pty Ltd v Paramatta City Council (No 2) (1982) 151 CLR 590, 594-597, it was said that, although the jurisdiction was inherent, the policy of finality in litigation meant that it was not exercisable as a matter of course, but only where there was an error or omission resulting from inadvertence, whether of the court or of the legal representative of a party, in the order made. In that instance, a judgment of the High Court was amended to include an order for payment of interest on damages awarded in that Court in an appeal in which counsel had failed to allude to the matter of interest in the course of the appeal hearing and the Court had not dealt with it in the judgment. See also Gould v Vaggelas (1985) 157 CLR 215, 275-276.
- In Shaddock the question whether the unsuccessful defendant should be required to pay interest on any damages the plaintiff had sustained was regarded as a "subsidiary or consequential" question which arose only when the substantial issue between the parties as to liability and damages had been determined (151 CLR 590, 595). It was held that it was competent for the Court to amend the judgment on appeal to make provision for the interest to which the successful plaintiff would have been entitled between the dates of judgment in the primary court and on the appeal, and to do so even though the matter of interest had not been mentioned in the notice of appeal (151 CLR 590, 595). The same may be said of the present case. The real issue dealt with by the Court was whether the decision to assess was correct; once it was determined that it was not, an order setting aside the assessment and ordering repayment (whether with or without interest) of the amount of duty paid was consequential. Such an order or orders were sought and made in appeal no 9197, but not in the subject appeal no 9180. The reason for the difference appears to be that a question about the value of the disposition was thought to arise in the latter case, whereas, in the result, the Court, by a majority (Pincus JA dissenting), considered that no duty was exigible at all.
- The joint judgment of Mason ACJ, Wilson and Deane JJ in Shaddock (151 CLR 590, 597) recognises a discretion to refuse an order under the slip rule "if something has intervened which would render it expedient or inequitable that it be made". Delay is a factor that was mentioned and relied on by the Commissioner here. It plainly has considerably less force in relation to a money payment by a respondent like the State, which is not shown to be less able to pay now than it was in August 1998, and which has had the advantage of the use and benefit of the appellant's money throughout the period from the time of its original payment on 26 March 1996. If there was delay on the part of the appellant in returning to this Court for an order under the slip rule, it was perhaps not unreasonable to suppose that, once it was ascertained that no duty was payable at law, the amount would be promptly refunded. It was, as it turns out, a mistake to reckon without the zeal of those who guard the Consolidated Fund; but in the time that has elapsed nothing has happened to make it either inexpedient or inequitable that the order of the Court made on 21 August 1998 should not be amended. The State may fairly be presumed in the meantime to have put the sum to use by investment at the prevailing rates of interest.
- It is, however, apparent that the order allowing the appeal can be amended under the slip rule by an order for payment of interest only if an order to that effect could have been included in it in the first place. As to that, Mr Dorney QC in his submission for the Commissioner emphasised that at common law interest was not payable on judgments for money sums. There is no doubting the correctness of that proposition, nor that, for interest to be payable now, authority for ordering it must be found in some form of statutory provision. In England, the first general statutory provision to that effect was s 17 of the Judgments Act 1838; 1 & 2 Vict c110, providing that every judgment debt would automatically carry interest at 4% per annum from the time of entering up judgment. Since at that time, and even now, some proceedings terminate in orders for payment of money, which technically speaking are not (or may not be) judgment debts, s 18 of the Act of 1838 went on to add that orders of other superior courts for payment of a money sum should have the effect of judgments at common law. Section 18 and the authorities decided in relation to it were considered in Taylor v Roe [1894] 1 Ch 413, 417, where Stirling J held that what was required to attract interest under the section was an order for payment to some person of money, as, for example, the order in that case for payment of costs immediately the costs were ascertained in amount by the certificate or allocatur of the taxing officer.
- For some reason, when many of the English statutory provisions came to be incorporated in local statutes in the 19th century, only s 18 of the Judgments Act 1838 was adopted in Queensland. It was formerly s 19 of the Common Law Practice Act 1867 and is now s 26 of the Supreme Court Act 1995. In the form in which it appears in s 26, it confers on any person, to whom any money is, by an order of the Supreme Court directed to be paid, "all remedies hereby given to judgment creditors".In Reis v Carling (1908) 5 CLR 673, 680-691, the result of omitting s 17 of the English Act of 1838 was held to be that, whereas in England interest on judgments could be claimed as a debt founded on statute, in Queensland it was not due at all unless and until (under an exception that is immaterial for present purposes) execution issued on the judgment. Hence, if the judgment debtor paid the judgment debt before execution issued, the judgment creditor was entitled to no interest. The omission was not corrected in Queensland until the adoption late in 1972 of ss 72 and 73 of the Common Law Practice Act, which have now been re‑enacted as ss 47 and 48 of the Supreme Court Act 1995. Section 47(1) authorises the inclusion, in a judgment "in any proceedings ... for the recovery of money (including proceedings for debt, damages or the value of goods)", of interest at a discretionary rate for the period from the date when the cause of action arose until judgment is given. It deals with the matter of interest before judgment. Section 48(1), which is concerned with interest after judgment, provides that, unless the court otherwise orders, interest is to be payable at the rate prescribed from the date of a judgment or order "for the payment of money in a cause of action that arose after" the Act of 1972 commenced.
- Reverting to the order proposed in the present case, there appears to me to be no reason why s 48(1) of the Act of 1995 should not apply to an order for payment by the Commissioner of money paid by way of duty under the assessment that is later set aside by the Court. It may be acknowledged that the expression "cause of action" in s 48(1) is not especially apt to describe an order made in the exercise of jurisdiction under the Judicial Review Act. The function of that expression is, however, simply to limit the retrospective operation of s 48(1); and even if decisive weight were to be allowed to it, it remains true that s 26 of the Act of 1995 confers on any persons, to whom money is ordered to be paid, "all remedies hereby given to judgment creditors". There is no good reason for not treating interest under s 48(1) as among the "remedies" envisaged by s 26, where the order for payment is made under the Judicial Review Act, even if it does not arise out of a "cause of action" in the strict common law sense. That is shown by the decision and the authorities in Taylor v Roe [1894] 1 Ch 413, where the order for payment of costs was made in the exercise of a statutory authority.
- Two problems do, however, have a potential to arise if the matter is left simply in that form. One is that the respondent Commissioner, or his or her advisers, evidently have no disposition to pay interest unless expressly directed to do so. The other is that, on one view, the amount of $3,156,126.05 was repaid on 23 December 1998, only to be replaced by a further assessment in the sum of $3,094,044.05. It in turn was paid by the appellant on 22 February 1999 and not refunded until 28 May 1999. The first problem could perhaps be catered for by now ordering those sums to be repaid and declaring that from the date of the judgment on 21 August 1998 they attracted interest at the rate prescribed under s 48(1) of the Act of 1995. An element of artifice would, however, be involved in making such an order only now at some time after that decision was given. The second problem, which is related to the first, raises the possibly more difficult question whether the money remained "unpaid" after 23 December 1998, when it was repaid but simultaneously accompanied by what was in effect a demand for $3,094,044.05 under the further assessment made and paid by the appellant but later withdrawn and not repaid until 28 May 1999. Rather than attempt on this occasion to dispose of the matter by reference to s 48(1) alone, it seems to me to be necessary to consider the power of the Court, acting in the exercise of its discretion under the Judicial Review Act 1991, to make an order that the respondent Commissioner pay interest on sums that the appellant has at various times paid under the various assessments which have been made and either withdrawn by the Commissioner or held by this Court not to be authorised by the Stamp Act.
- It may readily be accepted that there was at one time no jurisdiction to award interest on an amount of stamp duty paid but repayable following a decision setting aside an assessment pursuant to s 24 of the Stamp Act 1894. See Western United Investments Co v IRC [1958] Ch [1958] Ch 392, 405; and cf Property Unit Nominees (No 2) Pty Ltd. v Commissioner of Stamp Duties [1981] Qd R 332, 338. The reason was that, until the Judicial Review Act 1991, the procedure of appeal by way of case stated under s 24 of the Stamp Act was the only available means of challenging an assessment under the Act. See Woolwich Equitable Building Society v IRC [1989] 1 WLR 137, 148. Section 24(4) provided for an order for repayment of excess duty paid in conformity with an assessment held to be erroneous; but it was not until s 24(4A) was inserted in 1989 that the Commissioner was required to pay interest "at the prescribed rate" on the amount refunded from the date of repayment of the duty until the date the refund was made. The rate originally prescribed was 5.5% per annum, which, we were informed, has since remained unchanged.
- The enactment of the Judicial Review Act 1991 enabled the procedure under s 24 of the Stamp Act 1894 to be outflanked, and it has ceased to be the exclusive method of challenging an assessment to duty under that Act. On an application under s 20 of the Judicial Review Act 1991 for a statutory order to review an assessment or the Commissioner's decision making it, the Court has power under s 30(1)(a) to make an order setting aside the decision, and under s 30(1)(d) to direct any of the parties "to do ... anything that the court considers necessary to do justice between the parties". Once the Commissioner's decision is set aside, the assessment for which it is the statutory authority ceases to be an authorised or valid assessment. Hitherto it has not been thought necessary to spell that conclusion out in so many words, nor to declare in express terms that, on setting it aside, the Commissioner becomes liable to repay the amount of duty incorrectly assessed and paid. Orders for repayment have followed apparently without dispute and have been made as a matter of course in the exercise of the power conferred by s 30(1)(d). Under that provision, orders have also been made for payment of interest at a specified rate, which has, presumably by analogy with s 24(4A) of the Stamp Act 1894, commonly been fixed at 5.5%. The authorities directing payment of interest are discussed in the reasons of White J in MIM Holdings Limited v Commissioner of Stamp Duties (1998) 99 ATC 4115, 4130, and a further illustration of the practice of allowing interest is provided by the order of this Court in the collateral appeal no 9197 of 1997 between the parties in the present matter.
- The Commissioner now, however, submits that the Court has no power under s 30(1)(d) to order payment of interest on a sum ordered to be refunded or repaid as a consequence of an order setting aside an assessment made under the Stamp Act 1894. Reliance is placed on the decision of the Full Court in Comptroller of Customs v Kawasaki Motors Pty Ltd (No 2) (1991) 32 FCR 243, 264-267, where it was held by Hill and Heerey JJ that there was: (1) no jurisdiction or power under s 16(1)(d) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) to order payment of money, and (2) no power in proceedings under that Act to order payment of interest. As regards the first of these two questions, it is, however, clear that the conclusion arrived by their Honours was influenced by the fact that the proceedings before them involved an illegitimate attempt, by way of judicial review, to recover an amount of overpaid customs duty without complying with the exclusive procedure prescribed by s 167 of the Customs Act 1901 (Cth). In that case, the conclusion derived particular force from the express provision in s 167(4) of the Customs Act that no action should lie for recovery of a sum paid as duty under the Act unless the payment was made under protest in accordance with the section and an action to recover it was commenced within a specified time.
- There is in the Stamp Act 1894 nothing corresponding to the prohibition in s 167(4) of the Customs Act 1901, and it was not the submission of the respondent Commissioner before us that the Court lacked power to order (as it did in appeal no 9197) the repayment of an amount of duty paid under an assessment later set aside in proceedings for judicial review. What was said, however, was that the only power conferred on the Court to award interest was that given by s 47(1) of the Supreme Court Act 1995; that it was exercisable only "in any proceedings ... for recovery of money (including proceedings for debt, damages or the value of goods)"; and that in Comptroller of Customs v Kawasaki Motors Pty Ltd (No 2) (1991) 32 FCR 243, 266-267, Hill and Heerey JJ (Beaumont J dissenting) had held that proceedings for judicial review were not "proceedings for the recovery of money" within the meaning of s 51A of the Federal Court of Australia Act 1976 (Cth). A similar conclusion was reached (but in an appeal by case stated under the English equivalent of s 24 of the Stamp Act 1894) by Upjohn J in Western United Investments Co v IRC [1958] Ch 392, 405, in relation to s 3(1) of the Law Reform (Miscellaneous Provisions) Act 1934, which is the common source not only of s 51A of the Federal Act but also of s 47(1) of the Supreme Court Act 1995 (Qld) and of s 94(1) of the Supreme Courts Act 1970 (NSW).The question has, however, since been considered by the New South Wales Court of Appeal in Collector of Customs v Gaylor Pty Ltd (1995) 35 NSWLR 649, in the context of s 273GA of the Customs Act 1901, which introduced into that Act a procedure for administrative review of a decision that duty was payable under the Act. In consequence of administrative proceedings under s 237GA, the Collector in that case repaid amounts of duty paid under protest as duty demanded on goods imported by the taxpayer, but did so without paying interest on those amounts. In the Court of Appeal, Cole JA, with whom Clarke JA and Handley JA agreed, rejected a submission (35 NSWLR 649, 659F) that the only remedy to recover assessed duty and interest was by action pursuant to s 167 of the Customs Act. His Honour held (35 NSWLR 649, 66(G) that if a taxpayer proceeded by the available alternative of administrative review, "it is obvious that his purpose in doing so is to recover any duty wrongly imposed which he has paid under protest"; and further (35 NSWLR 649, 661C) that "in substance the administrative procedure is a claim by the owner to recover the moneys paid under protest".
- It is perhaps not altogether easy to reconcile some of what was said on the subject by Cole JA, and concurred in by the other members of the Court of Appeal in that case, with the conclusion of Hill and Heerey JJ in Comptroller v Kawasaki Motors (32 FCR 243, 266-267) that the proceedings for judicial review in that instance were not "proceedings for the recovery of money". It may be, however, that the difference, if any, turned on the limits of federal jurisdiction, which, their Honours accepted, would not have extended to entertaining an application for recovery of overpaid customs duty. Such proceedings, they said, "could only have been brought in the courts of a State exercising federal jurisdiction" (32 FCR 243, 267). If on this point there is a conflict of authority between the two decisions, it is open to this Court to adopt the view accepted in Collector of Customs v Gaylor Pty Ltd (1994) 35 NSWLR 649, 661, that an administrative procedure corresponding to that provided by the Judicial Review Act 1991 in Queensland, is in substance capable in circumstances like these of being considered "any proceedings ... for the recovery of money .." within the meaning of s 47(1) of the Supreme Court Act 1995, and so of attracting the power of the court under that section to include interest on a sum of duty which is in such proceedings ordered to be repaid. It is plain that, even though no such order was specifically sought or made in this instance, the only purpose of the application to review the Commissioner's decision or assessment here was to have it set aside in order to recover the sum of $3,156,126.05 which had been paid by the appellant in accordance with that assessment. It could scarcely be supposed that the appellant's interest was in resolving an abstract point of law under s 56C of the Stamp Act 1894.
- Even if the proceedings here were, strictly speaking, not "for the recovery of money", a court acting under the wide power conferred by s 30(1)(d) of the Judicial Review Act is invested with a discretion to make an order directing a party to do "anything that the Court considers necessary to do justice between the parties". It was this provision, on which the appellant relies in the present application, that was held by White J in MIM Holdings Pty Ltd v Commissioner of Stamp Duties (1998) 99 ATC 4115, 4130, to justify an order that the Commissioner pay interest on the amount of duty paid during the whole of the period it was retained by the Commissioner. Justice at large is apt, like public policy, to be an unruly horse; but there is a sufficient analogy with s 24(4A) of the Stamp Act to justify the making an order under s 30(1)(d) of the Act of 1991 for payment of interest, during the period for which the sum of $3,156,126.05 was retained by the Commissioner, at 5.5% per annum, which is the rate ordered by White J in the decision in MIM Holdings Pty Ltd v CSD. In the light of events after the judgment on 21 August 1998, there is a strong temptation to fix the interest rate after that date at the rate prescribed in respect of judgment sums by s 48(1) of the Act of 1995. However, the temptation should, I consider, on this occasion be resisted because the appellant did not originally ask for or obtain an order for repayment of the duty paid to the Commissioner, but only for an order that the duty be re-assessed. The matter was therefore not one in which there was an order for payment of money falling squarely within the terms of s 48(1). All matters considered, justice will be sufficiently done by exercising the discretion under s 30(1)(d) to order that interest be paid at 5.5% per annum on sums paid by the appellant by way of duty during the period those sums were retained by the respondent Commissioner, including the sum of $3,094,044.05 from 26 March 1995 to 28 May 1999.
- Whether or not an order of that kind is capable of being made under the jurisdiction conferred by the slip rule, the Court is expressly invested with wide powers of revisiting an order made under s 30 of the Judicial Review Act 1991. By s 30(4) of that Act:
"(4)The Court may, at any time, of its own motion or on the application of a party revoke, vary, or suspend the operation of an order made by it under this section [30]."
Accordingly, in the exercise of the powers conferred by ss 30(1)(d) and 30(4), or by the slip rule, or by a combination of all three of them, the order made by this Court on 21 August 1998 in appeal no 9180 of 1998 should be and is varied by the addition of the following further order:
Order that the respondent pay interest to the appellant:
(a)at the rate of 5.5% per annum on the sum of $3,156,126.05 during the period from 26 March 1996 to 23 December 1998;
(b)at the rate of 5.5% per annum on the sum of $3,094,044.05 during the period from 22 February 1999 to 28 May 1999.
The appellant having come to this Court for an indulgence resulting from its originally not having sought a more extensive order than that made by the Court on 21 August 1998, the appropriate outcome in terms of costs is that there be no order as to the costs of or incidental to this application.
- PINCUS JA: I have read the reasons of McPherson JA in which the issues are set out. It appears to me convenient to begin with a discussion of s 30(1)(d) of the Judicial Review Act 1991 (Qld) which gives the Court in such a case as this power to make:
"an order directing any of the parties to do, or to refrain from doing, anything that the Court considers necessary to do justice between the parties".
- On the face of it that provision gives the Court wide power. Further, in Park Oh Ho v Minister for Immigration and Ethnic Affairs (1989) 167 CLR 637 at 644, the High Court spoke against constricting "by undue technicality" the scope of the corresponding Commonwealth provision, s 16(1)(d) of the Administrative Decisions (Judicial Review) Act 1977 (Cth). A difficulty, however, arises from the later decision on the same section in Johns v Australian Securities Commission (1993) 178 CLR 408. According to the headnote (at 409) Brennan, Dawson and Toohey JJ held:
"that s 16(1)(d) did not authorize the making of an order against a party to litigation unless a ground for relief under the general law was established against that party".
It is perhaps arguable that the reasons of Brennan J (at 433, 434) confining the operation of s 16(1)(d) to instances in which there is a right to relief under the general law, were intended to relate only to those cases in which relief is being sought against a person not a party to the original decision; see also at pp 437 (Dawson J), 458 (Toohey J). However, to adopt that distinction would be to treat the statute as making provision for matters of the kind just mentioned, differing from that made for matters in which relief is sought against an original party. Not only is there nothing in the language used by the legislature to justify that differentiation, no consideration of policy appears to do so. In my opinion the proposition stated in the headnote correctly reflects the effect of the view of Brennan J, which seems to have been approved by Dawson and Toohey JJ.
- It follows, in my respectful opinion, that s 30(1)(d) of the Judicial Review Act 1991 (Qld) does not give power to order payment of interest where (as here) no right to interest is given by the general law. That leaves, as possible grounds for ordering interest, ss 47(1) and 48(1) of the Supreme Court Act 1995. As to s 47(1), I have come to the conclusion that the proceedings in question were not "for the recovery of money" and on that point agree with the reasons given in the Federal Court in Comptroller-General of Customs v Kawasaki Motors Pty Ltd (No 2) (1991) 32 FCR 243 at 266. As to s 48(1), that could only assist the appellant if there were a judgment or order for the payment of money; here there is no such judgment or order.
- For these reasons I would dismiss the application, with costs.
- WHITE J: I agree for the reasons expressed by McPherson JA that there is jurisdiction in the court to award interest to the applicant in respect of the sums paid as duty the demand for which has been held to be invalid and that the order allowing the appeal can be amended under the slip rule whether it be the former O 32 r 12 or r 388 of the Uniform Civil Procedure Rules or, as I would incline, pursuant to s 30(4) of Judicial Review Act 1991.
- I also agree that for the purposes of this application the appropriate rate is 5.5% per annum and that the orders should be as expressed by his Honour.
- I further agree that there should be no order as to the costs of this application.