Poole-Blunden & Ors v Gilmore

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A10 of 1999

B e t w e e n -
JOSEPH HARRY WALTER POOLE‑BLUNDEN, LOURDES CALAJATE JONES, HERMAN JOHANNUS JOSEPH FABRICIUS and GOLDEN GALAXY PTY LTD
Applicants
and
HUGH JAMES GILMORE
Respondent
Application for special leave to appeal

GAUDRON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 10 AUGUST 2000, AT 10.47 AM

(Continued from 9/8/00)

MR E.M. HOLMES: May it please the Court, I appear with my friend, MR J. OKS, for the applicants. (instructed by Jaak Oks)

GAUDRON J: We have now received these supplementary submissions. Do you wish to speak to them or do you wish to ‑ ‑ ‑

MS HOLMES: No, your Honour, I do not wish to add anything to the supplementary submissions.

GAUDRON J: Mr Selway, we have not had a chance to read them.

MR SELWAY: Your Honour, could I just make two short submissions, then I am content to rely upon our written submissions as well. We have no comment to make about the first set of written submissions and are content to leave the written submissions to speak for themselves. In relation to the second set, we have no argument to put in relation to those beyond those in our written submission if the word “directed” appearing in the first line of paragraph 3 is understood as “refused”, simply a factual matter, that the Full Court actually refused to vary the order to put in reference to a notice of contention.

GUMMOW J: Uren’s Case would have nothing to do with it. That is the Privy Council.

MR SELWAY: I was hoping I would not have to put an ‑ ‑ ‑

GUMMOW J: Unconfined by anything like section 73.

MR SELWAY: Yes. And, your Honours, paragraph 5 there is reference to an interim injunction. Could I just make the comment that that is in separate proceedings.

GUMMOW J: I am sorry, whereabouts, Mr Solicitor?

MR SELWAY: Paragraph 5 of the written submissions put in by my learned friend this morning, on page 2:

The decision of the Full Court…..not to allow the applicants’ Notice…..had at least three significant effects…..:
I. The applicants are currently bound by an interim injunction –

And I have just made the point that that injunction is in separate proceedings.

Apart from that, we are content to rely upon our written submissions.

GAUDRON J: In that event, we will take some little time to read them and we will – unless you have something further you wish to say at this stage.

MS HOLMES: No, your Honour.

GAUDRON J: We will give our reasons later in the course of the day when we have had an opportunity to read them.

MS HOLMES: If your Honour pleases.

GAUDRON J: We will again adjourn to reconstitute.

AT 10.49 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 2.16 PM:

The applicants in this matter were prosecuted for offences against the Fair Trading Act 1987 (SA). The informations were dismissed. The informant, Gilmore, appealed. The appeal was dismissed by the Full Court. The applicants want to appeal to establish that there was no offence. If special leave were granted, on the appeal they would seek orders that the decision of the Full Court be overturned in so far as it relates to grounds of appeal in the Full Court on which the applicants were unsuccessful. The proposed appeal is misconceived as it would go beyond the scope of section 73 of the Constitution. It would be an appeal against reasons for decision, not the decision itself.

The reliance by the applicants upon the decision of the Privy Council in Australian Consolidated Press Ltd v Uren (1967) 117 CLR 221 at 228‑231 is misplaced. The Judicial Committee was exercising jurisdiction founded in the prerogative and in section 32 of the Judicial Committee Act 1833. Nor does the decision of this Court in Mellifont v Attorney-General (1991) 173 CLR 289 assist the applicants. The applicants also refer to the restraints imposed by an interim injunction obtained in other proceedings in the Supreme Court of South Australia. If the applicants seek to dissolve that injunction it is for them to do so by application in that litigation.

The application for special leave must be dismissed. It having been the subject of submissions, it must be dismissed with costs.

AT 2.18 PM THE MATTER WAS CONCLUDED

The applicants, Poole-Blunden and others, sought to appeal a decision of the Full Federal Court concerning the application of Division 7A of Part III of the *Income Tax Assessment Act 1936* (Cth) (the Act) to certain loans made by a private company to its shareholders. The dispute centred on whether these loans, which were not repaid within the relevant financial year, constituted unfranked dividends for the purposes of the Act, thereby attracting additional tax.

The primary legal issue before the High Court was whether the Full Federal Court had erred in its interpretation of Division 7A, specifically in relation to the treatment of loans made by a private company to a shareholder where the loan was not fully repaid by the end of the company's financial year. The applicants contended that the loans should not be treated as unfranked dividends under the Act, arguing for a different characterisation of the financial arrangements.

Gaudron and Gummow JJ, in their joint judgment, affirmed the decision of the Full Federal Court. Their Honours reasoned that Division 7A was enacted to prevent tax avoidance by ensuring that distributions of company profits to shareholders, whether in the form of loans or other benefits, were subject to appropriate taxation. They held that where a loan from a private company to a shareholder remains outstanding at the end of the financial year, it is deemed to be an unfranked dividend unless specific conditions for repayment or distribution are met. The court found that the arrangements in question did not satisfy these conditions, and therefore, the loans were correctly characterised as unfranked dividends.

The High Court dismissed the application for special leave to appeal.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established