Commissioner of Taxation v Resource Capital Fund IV LP

STATUTORY FRAMEWORK 18 Section 255 of the ITAA 1936, entitled "Person in receipt or control of money from non-resident", relevantly provides: (1) With respect to every person having the receipt control or disposal of money belonging to a non-resident, who derives income, or profits or gains of a capital nature, from a source in Australia or who is a shareholder, debenture holder, or depositor in a company deriving income, or profits or gains of a capital nature, from a source in Australia, the following provisions shall, subject to this Act, apply: (a) the person shall when required by the Commissioner pay the tax due and payable by the non-resident; (b) the person is hereby authorized and required to retain from time to time out of any money which comes to the person on behalf of the non-resident so much as is sufficient to pay the tax which is or will become due by the non-resident; (c) the person is hereby made personally liable for the tax payable by the person on behalf of the non-resident to the extent of any amount that the person has retained, or should have retained, under paragraph (b); but the person shall not be otherwise personally liable for the tax; (d) the person is hereby indemnified for all payments which the person makes in pursuance of this Act or of any requirement of the Commissioner. (2) Every person who is liable to pay money to a non-resident shall be deemed to be a person having the control of money belonging to the non-resident, and, subject to subsection (2A), all money due by the person to the non-resident shall be deemed to be money which comes to the person on behalf of the non-resident. … (Emphasis added.) 19 The operation of s 255, as a whole, was described by the High Court in Bluebottle UK Limited v Deputy Commissioner of Taxation (2007) 232 CLR 598 (at [72] and [97]) as follows: … [Section] 255 takes a form which suggests that its operation can be described as being: (a) to oblige persons of the kind described in the chapeau to s 255(1) to pay the tax assessed as due and payable by a non-resident who meets the relevant characteristics identified in that chapeau (s 255(1)(a)); (b) to permit the person paying the tax to recoup the tax paid or to be paid by retaining sufficient out of the money of the non-resident coming into the payer's hands and to oblige the person to retain sufficient of the non-resident's money to do so (s 255(1)(b)); (c) to extend the notion of money of the non-resident in the hands of the payer to include amounts which the payer is liable to pay the non-resident (s 255(2)) but subject to the presently irrelevant qualification made by s 255(2A); (d) to limit the liability of the payer to the amount that comes into the hands of the payer (s 255(1)(c)); (e) to give the payer indemnity for all payments made in pursuance of the Act (s 255(1)(d)); and (f) to make like provision with respect to the Commonwealth, a State or an authority of the Commonwealth or a State (s 255(3)). 20 As the Court explained in Bluebottle at [75]-[78], ss 255(1)(a) and (b) concern different matters. Section 255(1)(a) obliges the person who has "the receipt control or disposal of money belonging to a non-resident" (defined by that court as the "controller") "when required by the Commissioner [to] pay the tax due and payable by the non-resident": at [75]. Section 255(1)(a) concerns payment of tax. The amount dealt with by s 255(1)(a) (by payment) is readily ascertained. It is the amount of tax due and payable by the non-resident. Section 255(1)(b) has a different role. It gives the controller authority to retain (and requires the controller to retain) out of any money "so much as is sufficient to pay the tax which is or will become due by the non-resident": at [75]. Section 255(1)(b) concerns retention of money belonging to a non-resident which is money of which the controller has the receipt control or disposal. 21 However, as the Court in Bluebottle also stated, the obligations to retain (subs (b)) and to pay (subs (a)) are intersecting obligations: at [82]. The Court explained the manner in which they intersect as follows: The point of their intersection is the specification of the tax which under para (a) is to be paid when required by the Commissioner, and which under para (b) is both the amount that may be retained (the controller "is hereby authorised") and the amount that must be retained (the controller "is hereby … required"). (Emphasis added.) 22 The legislative history of s 255 of the ITAA 1936 was examined in Bluebottle at [83]-[97]. For present purposes, the history (and the conclusions to be drawn from it) may be stated shortly. 23 Some of the expressions found in s 255 of the ITAA 1936 can be traced to provisions first made in the Income Tax Assessment Act 1915 (Cth) (the 1915 Act) dealing with "agents" and "trustees". An "agent" was defined, in s 3 of the 1915 Act, as including: every person who in Australia, for or on behalf of any person out of Australia (called 'the principal') has the control receipt or disposal of any income belonging to the principal, and every person declared by the Commissioner to be an agent or the sole agent for any person for the purposes of this Act. 24 Section 52 of the 1915 Act relevantly provided: With respect to every agent and with respect also to every trustee, the following provisions shall apply: - (a) He shall be answerable as taxpayer for the doing of all such things as are required to be done by virtue of this Act in respect of the income derived by him in his representative capacity and the payment of income tax thereon. … (e) He is hereby authorized and required to retain from time to time out of any money which comes to him in his representative capacity so much as is sufficient to pay the income tax which is or will become due in respect of the income. 25 Although the authority given (and requirement made) by s 52(e) of the 1915 Act has obvious similarities with s 255(1)(b) of the ITAA 1936, the context was radically different. Three matters of distinction were identified in Bluebottle. Section 52(a) of the 1915 Act made the agent "answerable as taxpayer for the doing of all such things as are required [by the Act] in respect of the income derived by him in his representative capacity and the payment of income tax thereon". Section 255 does not do so. The authority given (and requirement made) by s 52(e) of the 1915 Act related to the tax due "in respect of the income". Section 255 is concerned with tax that is or will become due. The agent's personal liability for tax depended upon his paying away money from which tax could be paid after the Commissioner had required him to make a return or "while the tax remains unpaid". Section 255 does not attach the liability to pay tax to any identified source of money. 26 The Court then looked at s 52A of the 1915 Act (inserted in 1918) and described as "the direct legislative antecedent of s 255": Bluebottle at [85]. That section provided: With respect to every person who has the receipt control or disposal of money belonging to a person resident out of Australia, who derives income from a source in Australia or who is a shareholder, stock holder, debenture holder, or depositor in a company carrying on business in Australia, the following provisions shall, subject to this Act, apply: - (a) He shall when required by the Commissioner pay the income tax due and payable by the person on whose behalf he has the control receipt or disposal of money. (b) Where he pays income tax in accordance with the preceding paragraph he is hereby authorized to recover the amount so paid from the person on whose behalf he paid it or to deduct it from any money in his hands belonging to that person. (c) He is hereby authorized and required to retain from time to time out of any money which comes to him on behalf of the person resident out of Australia so much as is sufficient to pay the income tax which is or will become due by that person. (d) He is hereby made personally liable for the income tax payable by him on behalf of the person resident out of Australia if after the Commissioner has required him to pay the tax he disposes of or parts with any fund or money then in his possession or which comes to him from or out of which the income tax could legally be paid, but he shall not be otherwise personally liable for the tax: … (e) He is hereby indemnified for all payments which he makes in pursuance of this Act or by requirements of the Commissioner. 27 Again, matters of distinction were identified by the Court. Section 52A(d) imposed personal liability on the controller of money belonging to a non-resident if, after the Commissioner had required him to pay the tax, the controller disposed of or parted with any fund or money then in his possession or which came to him from which the tax could be paid. Section 52A(a) obliged the controller (when required by the Commissioner) to pay the tax due and payable by the non-resident. Subsection (b) entitled the controller to recover what was paid from the non-resident or to deduct it from any money in the controller's hands. Section 255 is different; the personal liability imposed on the controller is limited "to the extent of any amount that he has retained, or should be retained" under s 255(1)(b). The upper limit of the liability of the controller is the amount of money of the non-resident that comes into the hands of the controller. 28 The Income Tax Assessment Act 1922 (Cth) (the 1922 Act) consolidated and amended the income tax laws. Section 90 of the 1922 Act was substantially in the form now found in s 255 of the ITAA 1936. Section 89 of the 1922 Act was generally similar to s 52 of the 1915 Act. 29 Section 65 of the 1922 Act contained a form of statutory garnishee. It provided for the Commissioner, by notice in writing, to require (a) any person by whom any money is due or accruing due to a taxpayer, (b) any person who holds money for or on account of a taxpayer, (c) any person who holds money on account of some other person for payment to a taxpayer, and (d) any person having authority from some other person to pay money to a taxpayer, to pay the tax due by the taxpayer (as well as fines and costs imposed by a court in respect of an offence against the Act). Failure to comply with such a notice was an offence. A person making a payment was "deemed to have been acting under the authority of the taxpayer and of all other persons concerned": s 65(4) of the 1922 Act. As is self-evident, s 65 was the antecedent of s 218 of the ITAA 1936. 30 The ITAA 1936 contained three kinds of provisions found in the 1922 Act: a provision (s 254) about agents and trustees substantially the same as s 89 of the 1922 Act; a provision (s 255) about non-residents substantially the same as s 90 of the 1922 Act; and the statutory garnishee provision (s 218) like s 65 of the 1922 Act. Section 255(2), which deems certain persons who owe money to a non-resident to have the control of money belonging to the non-resident, was first enacted in the 1936 Act. 31 As the Court noted in Bluebottle at [91], the legislative history is of limited assistance in the resolution of the proper construction of s 255. First, provisions of a kind generally similar to s 255 were more fully developed before the statutory garnishee provisions like s 218. Secondly, and no less importantly, the liability of the controller of a non-resident's money has substantially altered. Originally, under the non-resident provisions, the controller of a non-resident's money could be personally liable for the whole of the tax payable by the non-resident regardless of the amount of money of the non-resident that person controlled. That has changed. Under s 255, the controller's liability is limited to the amount of money held by or subject to the control of that person. Thirdly, the statutory context of these provisions has changed. The context has expanded to include the statutory garnishee provisions as well as the provisions dealing with agents and trustees. 32 Notwithstanding that legislative history, the respondents placed considerable reliance upon s 218 of the ITAA 1936 and the authorities that have considered it. Annexure A to this judgment contains a comparison of the two provisions usefully provided to the Court by the respondents to the appeal. For present purposes, it is sufficient to note three matters. The express terms of the two sections are different. Next, their field of operation is different. Third, their manner of operation is different. As the Court said in Bluebottle at [93]: … Section 255 concerns only tax which is or will become due from a non-resident; s 218 is not so limited. Secondly, and perhaps more importantly, s 255 makes the controller of moneys liable for the tax payable by the non-resident (to the extent of the amount that was, or should have been, retained); s 218 is a penal provision and does not permit the Commissioner to recover any of the tax due from the person to whom the notice is given. These differences suffice to distinguish between the two provisions and give each a separate operation in the 1936 Act.

ANALYSIS 33 It is against that background that the question in this appeal, whether the reference to "money" in the chapeau to s 255 and s 255(1)(b) extends to a debt denominated in a foreign currency, is to be answered. The answer is yes. 34 It was not in dispute that the word "money" in the ITAA 1936 is capable of including foreign currency: Deputy Commissioner of Taxation v Conley (1988) 88 FCR 98 at 99 and 100 and Commissioner of Taxation v Energy Resources of Australia Ltd (1994) 54 FCR 25 at 49 and 61-62. Whether it does in s 255 depends, of course, on the text of the section when read as a whole and in its context. Consolidated Media Holdings Ltd v Federal Commissioner of Taxation (2012) 201 FCR 470 and Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. 35 Section 255 needs some unpacking. First, as the heading to the section indicates, s 255(1) operates where there is a non-resident who satisfies the description in the chapeau - that part which is set out in bold in [18] above. The non-resident must be a taxpayer who derived income, or profits or gains of a capital nature, from a source in Australia or who is a shareholder, debenture holder, or depositor in a company deriving income, or profits or gains of a capital nature, from a source in Australia. In the present case, each of RCF IV and RCF V is a non-resident taxpayer that satisfies that chapeau. 36 Next, there must be a person who meets the following description, described by the High Court in Bluebottle, as the "controller". The person must have the receipt, control or disposal of money belonging to that non-resident taxpayer (the chapeau to s 255) or be liable to pay money to that non-resident taxpayer (s 255(2)). Here, that person is said to be Talison. At the very least, Talison has receipt or control of money belonging to each of RCF IV and RCF V. 37 Third, when the Commissioner gives a notice to the controller of the amount of tax owed by the non-resident taxpayer, the controller is, when required by the Commissioner, to pay the tax due and payable by the non-resident taxpayer: s 255(1)(a). 38 Fourth, s 255(1)(b) is a facilitative provision. It facilitates the payment of the tax due by the non-resident taxpayer by stating that controller is authorised and required to retain certain money. The form and content of that provision is important. Absent s 255(1)(b), the retention by the controller of money belonging to that non-resident taxpayer (in the face of a demand from the non-resident taxpayer) would be unlawful. The controller would have no answer to a demand for payment by the non-resident taxpayer against the controller. Subject to two important limits contained within other sub-sections of s 255 (which it will be necessary to consider next), s 255(1)(b) intersects with, and interrupts, any instruction by the non-resident taxpayer to the controller for delivery up of the money belonging to that non-resident taxpayer and held by the controller. Put another way, s 255(1)(b) provides the answer to any action (however framed) by the non-resident taxpayer to enforce payment to it of money belonging to that non-resident taxpayer but controlled by the controller as well as providing the obligation on the controller to retain the relevant sum. So, for example, s 255(1)(b) would provide the answer to any action by a non-resident taxpayer to enforce any purported assignment of a debt owed by the controller to that non-resident taxpayer. 39 Fifth, it is important to recall that because of the expanded concept of "control of money" (by s 255(2)) to include "all money due by the [controller] to the non-resident [taxpayer]", there need not be a specific fund held by or controlled by the controller. 40 Other aspects of s 255(1)(b) should be noted. The authorisation and requirement imposed on the controller is "to retain from time to time out of any money which comes to the [controller] on behalf of the non-resident [taxpayer]". As the Commissioner submitted, that obligation operates in the following manner. If money belonging to the non-resident taxpayer and received by the controller was not sufficient to pay the tax notified by the notice, but the controller incurs a new debt in favour of the non-resident taxpayer, then the obligation to retain that "money" continues and applies to the new debt. But that is not the only way in which the obligation "to retain from time to time out of any money which comes to the [controller] on behalf of the non-resident [taxpayer]" applies. If, however, money belonging to the non-resident taxpayer and received by the controller exceeds the tax notified by the notice, the controller is authorised to retain only so much of that money as is sufficient to pay the tax debt. It will be necessary to return to consider the operation of that section in the context of foreign currency. 41 Next, the limits. Still within s 255(1)(b), the controller is only authorised and required to retain out of the money that comes to them on behalf of the non-resident taxpayer so much as is sufficient to pay the tax that is or will become due by the non-resident taxpayer. There is no authorisation or obligation to retain more than is sufficient to pay the tax that is or will become due by the non-resident taxpayer. A second limit is provided by s 255(1)(c). That provision caps the personal liability of the controller for the tax payable by the non-resident taxpayer "to the extent of any amount that [the controller] has retained, or should have retained" under s 255(1)(b). Again, it will be necessary to return to consider the operation of that section in the context of foreign currency. 42 The third limit is the indemnification contained in s 255(1)(d). It provides the controller with an indemnification "for all payments" the controller makes pursuant to the ITAA 1936 or any requirement by the Commissioner. As the Commissioner submitted, as s 255(1)(b) provides effective authorisation and obligation for retention and non-payment of money belonging to the non-resident taxpayer (see [18] above), s 255(1)(d) provides effective protection in the context of payment by the controller of money otherwise belonging to the non-resident taxpayer to the Commissioner. 43 The question which then arises is whether s 255 extends to include, or operates, in respect of "money" in foreign currency belonging to a non-resident taxpayer but which is controlled by a controller? 44 It was not in dispute that the use of the word "money" in s 255 is not limited to legal tender (being the money which forms the means or instrument of discharging an obligation): see Bonython v The Commonwealth of Australia (1948) 75 CLR 589 at 621-622. That must be the position having regard to the expanded concept of "money" in s 255(2). As we have seen, it expressly provides that "all money due by the person to the non-resident shall be deemed to be money which comes to the person on behalf of the non-resident": s 255(2). In other words, s 255 expressly extends to (indeed will have frequent operation) in respect of debts due by the controller to the non-resident. 45 Nothing in the text or context of s 255 suggests that the phrase all money due does not extend to debts due by the controller to the non-resident if those debts are denominated in foreign currency: see Conley at 99. Indeed, if s 255 was so limited, the resulting operation of the provision would be impractical, if not absurd: Project Blue Sky at [69]-[71] and [96]-[99]. The operation of the provision would depend upon the currency which the controller and the non-resident taxpayer had chosen as the money of account between them. The conclusion that s 255 is not to be limited by excluding debts denominated in a foreign currency is further supported by the subject matter of ss 255 and 256. Sections 255 and 256 are both concerned with non-resident taxpayers. Section 256 is concerned with royalty payments and expressly provides that s 255 applies to payments of royalty to a non-resident taxpayer. There is nothing to suggest that the phrase "money as or by way of royalty to a non-resident" in s 256 is to be limited to payments where the amount to be paid is denominated in Australian currency. 46 Next, the nature and purpose of the provision. As the primary judge recognised, s 255 imposes two separate, but interrelated, obligations on the controller. It creates a personal obligation on the controller to pay the tax: ss 255(1)(a) and (c). That obligation is to pay the tax due and payable by the non-resident. That, of course, is an amount expressed in Australian currency: see Conley at 104 and Cusack v Federal Commissioner of Taxation (2002) 120 FCR 520 at 525. But that obligation in ss 255(1)(a) and (c) to pay the tax does not sit alone. It must be read with s 255(1)(b). As we have seen, that sub-section gives the controller authority to retain (and requires the controller to retain) "so much as is sufficient to pay the tax which is or will become due by the non-resident": Bluebottle at [75]. 47 The interaction between these two separate, but interrelated, obligations on the controller is important. As the primary judge explained, the authority and requirement in s 255(1)(b) is "facultative or ancillary" to the personal obligation created by ss 255(1)(a) and (c) to pay the tax. It is facultative because it "permits the person paying the tax [the controller] to recoup the tax paid or to be paid by retaining sufficient out of the money of the non-resident coming into the payer's hands [ie the controller]": Bluebottle at [72]. But that right to recoup is not mandatory. The source of the payment can be, and sometimes is, different. The requirement in s 255(1)(b) is also ancillary because, by requiring the controller to retain that amount, it caps the quantum of that liability to the amount that the recipient of the notice (ie the controller) retained or should have retained: Bluebottle at [87]. In other words, s 255 "makes the controller of moneys liable for tax payable by the non-resident taxpayer (to the extent of the amount that was, or should have been, retained)": Bluebottle at [93]. The existence of that personal liability - properly characterised as "an auxiliary obligation created to facilitate collection of … tax" (Moore v Commonwealth (1951) 82 CLR 547 at 582) - has been a consistent feature of the "legislative antecedents" of s 255: Bluebottle at [83]-[91]. 48 As just stated, s 255 does not oblige the recipient of the notice (the controller) to apply the money retained from the non-resident in satisfaction of the tax liability. The section says nothing about how the controller discharges the tax liability or what resources the controller uses to do so. However, the liability imposed on the controller by s 255 is not unlimited. The section caps the quantum of the liability to the amount that the recipient of the notice (ie the controller) retained or should have retained. That last statement requires amplification. The section speaks of retention of "so much as is sufficient to pay the tax which is or will become due by the non-resident". The object and purpose of the obligation to retain in subsection (1)(b) is to authorise and require resources to be retained from which the controller's liability may be recouped and by reference to which its quantum is capped. 49 The fact that the money which the controller retains may be in foreign currency does not affect or change the way in which the section operates. As the Commissioner submitted, if the controller's liability is to pay the non-resident taxpayer in foreign currency, then the controller is authorised to retain so much of that foreign currency as is sufficient to pay the tax debt in Australian dollars. The controller upon receipt of a notice under s 255 must retain money sufficient to pay the tax debt notified to it. The controller is not authorised or required to retain any more. If the money controlled by the controller is denominated in foreign currency, that controller may retain an amount of it sufficient to pay the tax debt. That amount retained may be retained in the foreign currency or it may not. In the end, that is not a determinative factor. 50 The matter may be tested this way. The authorisation and obligation is to retain the amount sufficient to pay the tax. If, upon receipt of the notice from the Commissioner, the controller retains so much of the foreign currency (at prevailing exchange rates) and remits the balance to the non-resident taxpayer, the controller has met its obligation to the Commissioner to retain from time to time so much as is sufficient to pay the tax debt. The consequence is that the controller will also be in a position to meet any call for payment from the non-resident taxpayer because the controller will no longer be under any obligation, or be authorised, to retain the balance. Whether the controller converts the money held to Australian dollars at that point is not to the point. It is true that if the controller seeks to recoup its payment of the tax liability (which will be in the same amount), then it will need at the time of payment to convert the foreign currency to Australian dollars. But that event does not, and cannot, alter the personal liability of the controller to pay the tax due. The amount retained by the controller (being the amount it was required to retain) is the same amount. 51 If by the time of payment by the controller in discharge of its personal tax liability under s 255(1)(c), the exchange rate has moved against the Australian dollar with the result that the amount retained by the controller in Australian dollar terms is now less than the amount retained at the time of the receipt of the notice, then the obligations of the controller do not change. The obligation of the controller to retain an amount sufficient to pay the tax remains and, no less importantly, its personal liability for the tax payable by the non-resident taxpayer remains unaltered. It is a personal liability for the tax payable by the non-resident taxpayer to the extent of any amount that the controller has retained, or should have retained, under s 255(1)(b). The amount retained is fixed. That amount in foreign currency, regardless of any change in exchange rates, does not alter. For example, if at the time of the receipt of the notice under s 255, the Australian dollar had parity with the US dollar and a controller was required and authorised to retain US$100 and he did, the amount retained would be US$100. The fact that by the time the tax was due, the Australian dollar had devalued against the US dollar may be put to one side. The amount the controller retained was and remained US$100. The fact that less tax may be paid is ultimately to the detriment of the non-resident taxpayer and the Commissioner. And, that is not surprising. These provisions are facultative and ancillary. They are not to be, and cannot be, construed as the sole method of payment of an outstanding tax liability. The phrase "should have retained" does not alter that construction. That phrase is, of course, intended to identify the liability to be imposed on a controller who failed, upon receipt of a notice, to do what was required of it - to retain an amount sufficient to pay the tax debt. 52 That construction of s 255 also provides a complete answer to the contention of RCF IV and RCF V that to construe s 255 as applying to debts denominated in foreign currency would impermissibly impose the risk of adverse movements in currency exchange rates on the controller of the debt. Indeed, RCF IV and RCF V went so far as to suggest that the controller would have to "gamble" on when it should convert the foreign currency debt into Australian currency in order to pay the amount due to the Commissioner. These submissions should be rejected. Currency exchange rates move frequently. If they do, the amount of Australian currency obtainable on conversion will change. But the controller makes no gain and suffers no loss as a result of that change. It is the non-resident taxpayer (and only that taxpayer) which suffers the consequences. The controller takes no gamble. The content of the obligation imposed by s 255 is determinate, not indeterminate. 53 It is also necessary to identify what s 255 does not do. Section 255 does not create for the Commissioner any interest in the amounts retained by the controller. Unlike s 218 of the ITAA 1936 (and s 260-5 of Sch 1 to the Taxation Administration Act 1953 (Cth) (the Administration Act), s 255 does not attach the debt owed by the recipient of the notice to the tax debt owed to the Commissioner. The fact that s 255(1)(b) does not charge any fund to the Commissioner or attach the tax debt to the fund means that there is no need for a co-incidence between the unit of currency of the money which is authorised and required to be retained and the unit of currency in which the tax debt is assessed and discharged. The position is the same under ss 260-40 and 260-75 of Sch 1 to the Administration Act where there is no need for the assets set aside by a liquidator or receiver to be assets consisting of money or monetary obligations expressed in Australian currency: see Bruton Holdings Pty ltd (in liq) v Federal Commissioner of Taxation (2009) 239 CLR 346 at [16]. Indeed, often they will not be. Put another way, the "money of payment" for the liability created by s 255(1)(a) may be different from the "money" that is authorised and required to be retained by s 255(1)(b). 54 Section 255 operates on more than bundles of currency notes held by the controller of moneys of a non-resident taxpayer. It extends to include debts owed by the controller to the non-resident taxpayer. A notice under s 255 obliges and authorises a person who owes a debt to the non-resident taxpayer to retain so much of that amount as is sufficient to pay the tax for which the taxpayer has been assessed. Section 255 does not authorise the Commissioner to seize any moneys. It does not require a specific sum payable to the non-resident taxpayer by the controller to be paid over to the Commissioner. There is no assumption that the currency which it authorises and requires to be retained will be paid over and operate itself to discharge the taxpayer's tax liability. Indeed, as we have seen, the "money of payment" of the tax debt may well be different from the moneys whose retention is required and authorised. 55 Finally, contrary to the submissions of RCF IV and RCF V, ss 255 and 218 are not materially to the same effect and purpose. It is an error to treat decisions construing s 218 as controlling the construction of s 255: Bluebottle at [92]-[93]; McNamara v Consumer Trader and Tenancy Tribunal (2004) 221 CLR 646 at [40] and Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 233 CLR 259 at [31]. It follows that what this Court said in Conley does not determine the issues which now must be decided. Further, and no less importantly, what was said in Conley must be read recognising that s 218 presents issues which are very different from those which arise in this case.

CONCLUSION 56 The appeal should be allowed with costs. The orders of the primary judge should be set aside and in their place there should be an order dismissing the application with costs. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gordon.

Associate: Dated: 22 October 2013 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1817 of 2013

TALISON LITHIUM PTY LTD (ACN 140 122 078) (FORMERLY KNOWN AS TALISON LITHIUM LIMITED)

JUDGEs: ALLSOP CJ, GORDON & JAGOT JJ DATE: 22 OCTOBER 2013 PLACE: SYDNEY

JAGOT J: 57 I have read the reasons for judgment of the Chief Justice and Gordon J. I agree with their reasons and proposed orders. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment of the Honourable Justice Jagot.