Unit Trend Services Pty Ltd v Commissioner of Taxation

JUDGE: LOGAN J DATE: 5 APRIL 2013 PLACE: BRISBANE

REASONS FOR JUDGMENT 1 On 5 October 2012, a Full Court of this Court, in the exercise of the original jurisdiction conferred on the court by s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), made the following orders: 1. The appeal is allowed in part. 2. Paragraph 1 of the decision of the Administrative Appeals Tribunal (the "Tribunal") dated 21 July 2010 (the "decision") is set aside and insofar as the proceedings before the Tribunal concern decisions that relate to supplies made before 17 March 2005 pursuant to contracts originally entered into by Simnat Pty Ltd those decisions (including decisions on the imposition of shortfall penalties) are set aside and remitted to the respondent with a direction to allow the objections of the applicant. 3. The appeal is otherwise dismissed. 4. The cross-appeal is allowed so far as the cross-appeal relates to grounds (a) and (c) of the cross-appeal. 5. So far as the cross-appeal relates to grounds (b) and (d) not pressed by the respondent after the conclusion of the hearing of the appeal, grounds (b) and (d) are dismissed. 6. Paragraph 3 of the Tribunal's decision is varied so as to provide in place of that part of the decision the following: (3) Insofar as the proceedings concern decisions that relate to supplies made on or after 17 March 2005, those decisions (including decisions on shortfall penalties and remission) are: (a) set aside; and (b) remitted to the respondent for reconsideration according to law and in accordance with the following directions and recommendations: (i) any valuation of the freehold interest in relation to Tower Two and Tower Three (as at 1 July 2000) provided to the respondent within 60 days of the 5th day of October 2012 or such further time as the Tribunal may allow which complies with the requirements of the following determinations, should be considered by the respondent in his reconsideration: (A) with respect to supplies made up to and including 30 November 2005, A New Tax System (Goods and Services Tax) Margin Scheme Valuation Requirements Determination (No. 2) 2000 or MSV 2005/1; (B) with respect to supplies made on or after 1 December 2005, A New Tax System (Goods and Services Tax) Margin Scheme Valuation Requirements Determination MSV2005/3; (ii) if no valuation is provided to the respondent in accordance with subparagraph (i) above in Tower Two, it would be appropriate for the respondent to proceed on the basis that the applicant is not entitled to use the margin scheme provided by Division 75 of the A New Tax System (Goods and Services Tax) Act 1999 (Cth) ("GST Act") in relation to such of the supplies made on or after 17 March 2005 that relate to Tower Two; (iii) if no valuation is provided to the respondent in accordance with subparagraph (i) above in Tower Three, it would be appropriate for the respondent to proceed on the basis that the applicant is not entitled to use the margin scheme provided by Division 75 of the GST Act in relation to such of the supplies made on or after 17 March 2005 that relate to Tower Three. 7. The respondent pay 50% of the costs of the applicant of and incidental to the appeal and cross-appeal. 8. The applicant has liberty to apply for an order that any monies paid into court by the applicant as security for costs be paid out of court to the applicant together with accretions, if any. 9. The respondent pay the applicant's costs of and incidental to the respondent's Motion made 16 September 2010 as referred to in the Order of Logan J of 17 September 2010. 10. Each party bear its own costs of and incidental to the applicant's Notice of Motion filed on 13 September 2010. 2 By an application dated 1 March 2013, filed electronically on 26 March 2013, the Commissioner of Taxation has sought, pursuant to s 25(2) of the Federal Court of Australia Act 1976 (Cth) (Federal Court of Australia Act), or r 41.03 of the Federal Court Rules 2011 (Cth), that orders numbered 2, 7, and 8 of the Full Court's order of 5 October 2012 be stayed until: (a) a determination by the High Court of Australia of the Commissioner's application for special leave to appeal, filed on 2 November 2012; and (b) if special leave to appeal is granted, the determination of the appeal by the High Court. Ancillary relief or further or other relief is also sought. 3 It is helpful, in relation to the application, to commence by setting out a chronology of events. Those events, insofar as they concern the availing by Unit Trend Services Pty Ltd (UTS), of the means of challenge provided under the Taxation Administration Act 1953 (Cth) (Taxation Administration Act), and the sequel to that availing are as follows: 6, 7, 8, 9 April and 14 May 2010: the Administrative Appeals Tribunal heard matters numbered 2009/5952-5955. 2 July 2010: the Tribunal, as constituted by Deputy President Hack Supreme Court and Member O'Loughlin delivered its decision; see the Taxpayer & Commissioner of Taxation [2010] AATA 497. 18 August 2010: UTS filed an application for leave to appeal out of time together with a notice of appeal. That became matter QUD337/2010 in this Court. 1 March 2011: the Full Court heard the appeal. 17 August 2012: the Full Court gave judgment; see Unit Trend Services Pty Ltd v Commissioner of Taxation [2012] FCAFC 112 5 October: the Full Court gave the orders set out above. 2 November 2012: the Commissioner filed his application for special leave to appeal to the High Court from the Full Court's orders. 21 December 2012: UTS filed an application for orders in the nature of the Mandamus under s 39B of the Judiciary Act 1903 (Cth), QUD789/2012. 14 December 2012: a Full Court of the High Court, constituted by two judges, French CJ and Gageler J, heard the application for special leave and decided that that application should be referred to a Full Court of the High Court, constituted by five judges, for hearing of argument as on an appeal. 14 March 2013: the application was heard, in the manner contemplated by the High Court in December, by a Full Court constituted by five judges. The court then reserved its decision. 4 Prior to delivering judgment, I raised with counsel what appeared to me to be a curious feature of the language adopted by parliament in s 25(2) of the Federal Court of Australia Act. That subsection provides, materially, that applications to stay an order of a Full Court must be heard and determined by a single judge unless, if the application is made in a proceeding that has already been assigned to a Full Court, and the Full Court considers it is appropriate for it to hear and determine the application. It should be said at once that the Full Court, which was constituted by Dowsett, Bennett, and Greenwood JJ, has not "considered it appropriate" for it to hear and determine the application. More particularly, the Commissioner has not sought that the Full Court, as so constituted, hear and determine the application. The Commissioner is content for the application to be heard and determined by a single judge namely, me. 5 It may be, as was put on behalf of UTS, that s 25(2)(f) has but a facultative operation, in the sense that it permits, as a matter of internal administration, either of its own motion or on the application of the party, the Full Court assigned to a proceeding to hear and determine an application for a stay. There was no submission on behalf of UTS that the matter should be heard, or for that matter must, or could only, be heard by a Full Court. Rather, to the contrary. 6 The subject is one upon which it is not necessary to reach a concluded view, given the stance adopted by the parties. It was referred to in passing and in respect of a different type of application by the Full Court in Taylor v Crossman [2011] FCAFC 139 at [7] where the court observed: what may amount to a proceeding being 'assigned to a Full Court' may presently be left to one side. It would, however, be curious if a mere administrative arrangement within the registry of this Court could itself affect the matter in which the power of the court is exercised. I also adverted, if only out of an abundance of caution, to the subject in George v Fletcher (Trustee) (No 2) [2010] FCA 655 (George v Fletcher (No 2)). That was a case similar to the present where there was an application for a stay of the operation of the orders of a Full Court pending the hearing and determination of a special leave application. I took the view then that I should consult the other judges who, with me, had constituted the Full Court before exercising the jurisdiction. Each decided that it was appropriate for me to deal with the matter. The subject is also one to which Flick J adverted in Croker v Commonwealth of Australia [2011] FCA 312. His Honour considered that he had jurisdiction to entertain the matter as a matter in the duty list. He did record that he had consulted the presiding judge of the Full Court concerned. 7 Given the stance taken by the Commissioner, I do not consider that it is necessary that I embark on the process of consulting the presiding judge, Dowsett J, in this instance. Rather, in the absence of any particular desire by either party or, for that matter, (in advance and as a result of the filing of the application) by the Full Court as constituted for the hearing of the appeal to deal with the stay application, I consider that I have both jurisdiction and, further, that it is appropriate that I deal with the matter. 8 All that then is a long way of coming to the question as to the principles to be applied in relation to the hearing of an application for a stay. 9 In George v Fletcher (No 2) at [13], I expressed the view, to which I adhere, that the principles referred to by Brennan J in Jennings Construction Limited v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681 (Burgundy Royale) were just as pertinent in this Court in relation to whether or not to stay the operation of the judgment of a Full Court, pending the hearing and determination of an application for special leave to the High Court, as they were to the exercise of the jurisdiction possessed by the High Court itself to stay the operation of an order the subject of a pending application for special leave to appeal. 10 That being so, the considerations which are relevant are these. Is there a substantial prospect that special leave to appal will be granted? Will the grant of a stay cause loss to the respondent to the special leave application? Where does the balance of convenience lie? All that has to be decided in the knowledge that the staying of the operation of an order of the Full Court is an exceptional jurisdiction. In other words, it is for the applicant, in this case the Commissioner, to make out a case by reference to those criteria as to why a successful litigant, in this case UTS, should not have the fruits of its judgment. 11 There are at least two unusual features of this case. 12 The first is that, though a judgment of the Full Court, the judgment is one made in the exercise of original jurisdiction. In other words, the case is not one where there has been an initial exercise of Commonwealth judicial power and then a determination by the Full Court, in its appellate jurisdiction as an intermediate Court of Appeal, of the correctness or otherwise of that initial exercise of Commonwealth judicial power. 13 The Commissioner was, insofar as he was aggrieved by the outcome of the proceeding before the Full Court, left with but two options. The usual course to take and the course the Commissioner, understandably, adopted was to seek special leave to appeal. Exceptionally, of course, judges of this Court being officers of the Commonwealth for the purposes of s 75(v) of The Constitution, it was theoretically possible for the Commissioner to seek the issuing of a constitutional writ directed to the judges of the court. In circumstances where an application for special leave was possible, it is only to be expected that the Commissioner availed himself of that, rather than the exceptional constitutional alternative. 14 So the fact that there is but an initial exercise of original jurisdiction, albeit by a Full Court, is one unusual feature. 15 Another unusual feature of the case is that the High Court, for reasons that doubtless commended themselves to two judges of that court confronted initially with the application for special leave, has determined that the case was one which ought to be returned and argued as if on an appeal before a court constituted by five judges. 16 In the context of the stay application, it is instructive also to consider what had been filed in the High Court by the time that fresh hearing came to pass. The material read before me included affidavits filed in the High Court. Those affidavits include an affidavit of Mr David Christopher Mackie, who in the proceeding before the High Court and here, is the solicitor for UTS. At paragraph 5 of that affidavit, Mr Mackie deposes: 5. The bases upon which Unit Trend contends that the Court should grant an expedited hearing of the Applicant's special leave application are that, although the Applicant has not sought or obtained any stay of the orders of the Full Court the Applicant maintains, through his solicitors, McInnes Wilson, that he does not have to give effect to those orders by reasons of the operation of s 14ZZQ of the Taxation Administration Act 1953, with the result that: (a) Unit Trend, which has been kept out of the substantial input tax credits (see below) to which it is entitled in consequence of the Orders made by the Full Court of the Federal Court on 5 October 2012 ("the Orders"), including a period of just under a year and a half while judgment was reserved in the Full Court of the Federal Court, and which would have applied in the businesses of entities associated with Unit Trend, continues to be held out of those entitlements and will, unless Unit Trend can compel the Applicant by further litigation to effect those entitlements, continue to do so held out of them until after the application for special leave is dismissed or, if it is granted, the appeal is determined; and (b) I am informed by the Company Secretary of Unit Trend, Malcolm Cory, and believe that Unit Trend and other entities and individuals associated with Unit Trend, in particular Raptis Group Limited and Rapcivic Contractors Pty Limited, have sustained and are continuing to sustain commercial detriment as a result of the delay in the Applicant, pursuant to the Orders, amending assessments and amended assessments issued by the Applicant upon Unit Trend, and as explained in the affidavit of Mr Cory to be filed in this application; In that connection I refer to paragraph 37 of the Affidavit sworn by Malcolm Andrew Cory on 27 November 2012 and filed in support of the within application. The "see below" in paragraph 5(a) is a reference by Mr Mackie to an amount to which UTS asserts it is entitled by orders of the Full Court. At paragraph 6 of that same affidavit, he deposes that he has been instructed by Mr Cory that the amount the Commissioner is obliged to refund to UTS is $7,157,306 plus interest, and, further, that the Commissioner is obliged to remit penalties in the amount of $5,440,402.03. 17 Another affidavit filed in the High Court in relation to the special leave application was that of Mr Malcolm Andrew Cory. Mr Cory is the company secretary of UTS. UTS has but one director, a Mr Raptis. In that affidavit, Mr Cory sets out at some length the factual background to the GST group on which UTS was a representative member. 18 That group at one stage included, so Mr Cory deposes (and adopting the abbreviations used by him) RGL (Raptis Group Limited), Simnat, Blesford, Morville and Rapcivic. Mr Cory deposes that RGL left the UTS GST Group on 30 June 2006 and that Rapcivic left the UTS GST Group on 30 June 2007. Mr Cory also deposes, and I have had regard, to the background of the development which lies behind the particular GST controversy, which found its way initially into the Administrative Appeals Tribunal and then to the Full Court. 19 More particularly, under the heading "Applicant's Obligation to Pay Refund Amounts to Unit Trend", Mr Cory deposes: 22. Unit Trend lodged Business Activity Statements with the Applicant, incorporating the periods in which the transactions referred to in paragraphs 17 and 21 above occurred and paid to the Applicant the GST amounts self-assessed in the Business Activity Statements lodged. 23. On 29 February 2008, the Applicant issued Assessments and Amended Assessments of Unit Trend's net GST liability under the provisions of the GST Act. The total net liability assessed was $21,621,466.00. 24. Also on 29 February 2008, the Applicant issued a declaration to Unit Trend under Division 165 of the GST Act, setting aside GST benefits allegedly obtained by Unit Trend and stating that the net GST owed by Unit Trend was $21,618,983.00. 25. On 13 March 2008, the Applicant issued a Notice of Assessment of scheme penalties to Unit Trend in the sum of $5,405,367.00 in respect of shortfalls arising from the Assessments and Amended Assessments issued on 29 February 2008. 26. On 5 February 2007, 30 April 2008 and 12 May 2008, Unit Trend lodged objections with the Applicant with respect to the Assessments, Amended Assessments, declaration and penalties referred to in paragraphs 23 to 25 above. 27. On 21 October 2009, the Applicant issued a letter to Unit Trend containing the Applicant's decisions in respect to Unit Trend's objections ("the Commissioner's decisions"). The Applicant made relatively minor adjustments to the assessments and penalties objected to as follows: (a) The GST net amount of $21,618,986.00 was reduced by $277,839.00 to 21,341,148.00; and (b) The scheme penalty amount of $5,405,367.00 was reduced by $69,459.00. 28. On 17 December 2009, Unit Trend filed an Application in the Administrative Appeals Tribunal ("the Tribunal") in applications numbered 5952 to 5955 of 2009, requesting review of the Commissioner's decisions. 29. On 21 July 2010, Deputy President PE Hack SC and FD O'Loughlin, Senior Member, of the Tribunal delivered their decision on Unit Trend's applications for review, affirming the Commissioner's decisions in part and setting them aside in part and remitting the decisions so set aside to the Applicant with a direction to allow Unit Trend's objections to those decisions in full. 30. On 18 August 2010, Unit Trend filed a Notice of Appeal in the Full Court of the Federal Court in proceeding number QUD 377 of 2010, requesting orders that a portion of the Tribunal's decision be set aside. 31. On 8 September 2010, the Applicant filed a Notice of Cross-Appeal, appealing part of the Tribunal's decision. 32. The Full Court heard the Federal Court appeal on 1 March 2011. 33. On 17 August 2012, Justices Dowsett, Bennett and Greenwood of the Federal Court delivered their judgment and orders were made on 5 October 2012, allowing Unit Trend's appeal in part and allowing the Applicant's cross-appeal in part ("the Orders"). 34. On 2 November 2012, the Applicant filed an Application for Special Leave to Appeal from part of the judgment of the Full Court of Federal Court of Australia reflected in the Orders. 35. As a result of the Orders made by the Full Court of the Federal Court, the Applicant is obliged, on my calculations, to refund to Unit Trend the sum of $7,157,306.00 plus interest, and to remit penalties to Unit Trend in the sum of $5,440,402.03. Now exhibited to me and marked "MAC-1" is a true copy of a document titled "UTS Chevron GST Adjustment arising from Valuation" prepared by me setting out the basis on which the said refund due to Unit Trend in the sum of $7,157,306.00 is calculated. 36. Unit Trend has not received the refund amount of $7,157,306.00, interest or remission of the $5,440,402.03 penalties amount from the Applicant, or any part thereof. 20 He then deposes under the heading "Prejudice Caused by the Delays" to the following: 37. The Applicant's failure to amend the assessments and amended assessments against Unit Trend referred to in paragraphs 23 to 25 herein pursuant to the Orders has caused and will continue to cause commercial damage to Unit Trend and to the other entities that were in the above GST group, in particular RGL and Rapcivic, and to other companies and individuals (primarily being trade creditors of Rapcivic) as follows: (a) There is a commercial imperative to have certainty in relation to the amendment of the assessments and amended assessments issued by the Applicant to Unit Trend pursuant to the Orders as soon as possible because entities associated with Unit Trend, being RGL and Rapcivic in particular, are under Creditors' Trust Deeds and Deeds of Company Arrangements entered into by RGL and Rapcivic on 23 April 2009 ("the DOCAs"). Under the DOCAs, trade and other creditors are to receive shares in RGL in part satisfaction of their claims, which shares they will be able either to hold or sell once the current suspension of RGL's listing on the Australian Securities Exchange ("ASX") is lifted following implementation of the DOCAs; (b) Now exhibited to me and marked "MAC-2" are true copies of the said DOCAs; (c) This is because, purporting to rely on s 444-90 (GST groups) in Schedule 1 to the Taxation Administration Act 1953 (Cth), making members of a GST group jointly and severally liable for liabilities of the representative member of the group (Unit Trend), the Applicant has lodged proofs of debt with the administrators of the DOCAs in respect of the same GST liabilities raised against Unit Trend even though Unit Trend is not subject to the DOCAs; (d) Now exhibited to me and marked "MAC-3" are true copies of Formal Proofs of Debt or Claim lodged against RGL and Rapcivic dated 26 February 2009 and 27 February 2009 respectively; (e) If the ATO proofs of debt cannot be rejected the Administrators have undertaken to call a meeting of Creditors to determine the future of the DOCAs. It is possible at this meeting that the DOCAs will fail due to the dilution of the return in cash and shares to Trade Creditors. The DOCAs cannot be finalised until the Applicant's current application and any appeal to the High Court is finalised; (f) I have been informed by the administrators of the DOCAs, and believe, that they are awaiting the outcome of the High Court proceeding brought on by the Applicant so they can determine how to deal with the Applicant's proofs of debt and accordingly creditors are also awaiting the outcome; (g) Now exhibited to me and marked "MAC-4" is a true copy of the current Report to Creditors of Rapcivic dated 28 November 2012, evidencing that the Administrators are awaiting the outcome of the High Court proceeding so they can determine how to deal with the Applicant's Proof of Debt; (h) In my opinion, based on my understanding of the above s. 444-90, and on conversations with the administrators, at least if the Applicant is not successful in the High Court proceeding, it is likely that the Applicant's proofs of debt will be withdrawn or rejected by the administrators; this will allow the creditors to determine how the DOCAs should proceed; (i) It is my belief, based on negotiations that RGL has had with Styn Timmermans, a Senior Adviser with the ASX, that it will not be possible for RGL to have its listing restored until the DOCAs are finalised, which cannot happen until this litigation is concluded; (j) Now exhibited to me and marked "MAC-5" is a true copy of a letter from the ASX to RGL dated 26 July 2012 advising that, inter alia, following completion of a recapitalisation proposal the RGL shares can be re-listed. I verily believe that the substance of the recapitalisation referred to in that letter is the issue of shares to Creditors under the DOCA; (k) In addition, RGL has suffered and continues to suffer significant commercial detriment due to the fact that the assessments and amended assessments against Unit Trend have remained on foot and have not been amended to give effect to the Orders, thereby causing the liabilities against RGL and Rapcivic to subsist for lengthy periods while this matter has been litigated, initially from 18 August 2010 to the hearing on 1 March 2011, and then further delays until the Full Court handed down its judgment on 17 August 2012, further until the Orders were made on 5 October 2012, and subsequently; (l) There are approximately 294 trade creditors of Rapcivic collectively owed approximately $12 million waiting four (4) years to recover some portion of the monies owed to them, both in cash and in shares. The shares only have value when Rapcivic can trade. It is imperative that all commercial issues pertaining to Rapcivic be resolved, as any Administrator of that entity may challenge RGL and any other administration due to inter-entity loans and priority payments. Further, RGL has been a trading suspension for four (4) years, and is effectively subject to the discretion of the ASX as to whether it will be in a position to trade again. The Applicant has refused to allow any distribution of shares to RGL, as he claims that he is owed monies; and (m) In particular, as a consequence of the delay caused by the Court proceedings and by the Applicant's failure to amend the assessments and amended assessments to Unit Trend pursuant to the Orders, RGL has sustained lost opportunities because it has not had sufficient commercial certainty to re-enter the building industry at a time when land prices have been depressed; I believe, based upon my many years of experience in the Gold Coast Building and property development industry, that there are opportunities for profitable development activity in the current market. Demand and activity stemming among other things from the forthcoming Commonwealth Games to be hosted on the Gold Coast in 2018 may increase confidence in the market. 21 It is evident that, on the face of that affidavit material, the High Court was persuaded that the case was one that ought to be expedited. That course was one which was supported by the Commissioner. 22 The High Court, inferentially has also taken the view that the inactivity on the part of the Commissioner in implementing the decision of the Full Court, coupled with the prejudice referred to by Mr Cory, was such as to take the unusual course of returning a civil special leave application for hearing as soon as March this year and to treat it as if it were an appeal. 23 It should also be recorded that there was an exchange of correspondence in the immediate aftermath of the Full Court's reasons for judgment concerning, understandably, a desire on the part of UTS to have its money. At that stage, and this does not seem to have been raised before the High Court, the Commissioner took the view that he was not obliged to do anything then by reason of the operation of s 14ZZQ of the Taxation Administration Act. Quite how the Commissioner could labour under that view in the face of an affirmative statement to the contrary by a Full Court of the High Court in Glennan v Commissioner of Taxation (2003) 77 ALJR 1195 at [5] (Glennan) is, to say the least, a curiosity, given the behaviour ordinarily to be expected of officers of the Commonwealth when our nation's highest court has stated what the meaning of the federal enactment is. 24 It is unfortunate, to use a neutral term, that the Commissioner, then being of the view that, notwithstanding what the High Court had said in Glennan, the law was not as stated in that case, did not seek to ventilate the question of a stay, at least at a time when five judges of the High Court were seized of the special leave application. That is also an unusual feature of this case. It is particularly unfortunate that the Commissioner did not at that time apply for a stay, having regard to what Mr Mackie had earlier stated at paragraph 5 of the affidavit read in the High Court as to the absence of any application by the Commissioner for a stay. Perhaps the High Court was operating on the assumption that the Commissioner would do his duty, which was to obey an order of a court exercising power under Ch III of the Constitution, unless and until that order was either set aside on appeal or stayed. 25 In any event, the Commissioner has sought to invoke the jurisdiction to grant a stay which this Court does have. It was said by the Commissioner, and, with respect, rightly said; that in the ordinary course of events this Court is the appropriate forum in which to seek a stay of the operation of a judgment of a Full Court pending the hearing and determination of an application for special leave. So much is apparent from Brennan J's judgment in Burgundy Royale. This, though, given the course which it took, was hardly an ordinary case. 26 However much one might have expected the Commissioner either to have obeyed the order of a Full Court or promptly to have sought a stay, it remains the case that a question of whether or not to grant a stay must be considered now. 27 It is no part of my task to anticipate what might be the outcome of an appeal to the High Court. Given the course that has been adopted by the High Court, one might expect that there will be no later appeal hearing, but rather the court will either decide that the case is one for special leave, grant special leave and allow or disallow the appeal instanter or, perhaps, decide merely not to grant special leave. 28 The course taken in the High Court does, suggest this to me. This is a case which I should approach on the basis that the very way in which the High Court has chosen to deal with it means that it was one regarded as of sufficient importance to warrant being dealt with by a court of five judges with argument being treated as if it were argument on an appeal. Inferentially to me, that suggests I should in relation to a stay approach the case on the basis that, were it being dealt with in a more conventional way, the prospects for a grant of special leave would be assessed as good. 29 As to the question of prejudice, there is no doubt at all that UTS has been kept out of what it, at least for the present, rightly regards as its money for a very long time indeed. 30 A Full Court of this Court had occasion in Federal Commissioner of Taxation v Multiflex Pty Ltd (2011) 197 FCR 580 to uphold the granting of a mandamus against the Commissioner in relation to the refunding of moneys owed to a taxpayer. One might hope that the occasion for the exercise of that jurisdiction in those circumstances is infrequent. Just such an application has been made by UTS in this Court. That will fall for determination in June. 31 It was put on behalf of the Commissioner that s 14ZZL rather than s 14ZZQ, offered a statutory form of excusal in respect of the implementing of the orders of the Full Court. Whether or not that section does is a matter that will fall for determination in June, not now. The question for today is wholly that of whether or not to grant a stay. It would not in any way be appropriate to embark upon a consideration of the operation of s 14ZZL in relation to an application for the exercise of the discretion to grant a stay. If a stay is not granted, the Commissioner will either be entitled to avail himself of s 14ZZL or he will not. If it proves that he is not entitled, and it also proves, in the meantime, that a special leave application fails for one reason or another, and, further, that there are no discretionary grounds then intruding, then, if UTS is entitled to a mandamus on the merits, the mandamus will go either in June or sometime thereafter. That is the time to consider whether s 14ZZL does indeed have an excusing effect. 32 For the moment, what becomes pertinent is, as against what I regard as a case which should be treated as one where there are good prospects, for the reasons given, of at least a grant of special leave, the prejudice is such that the stay should not go. That, in a sense, is conflating a question about the balance of convenience as well. 33 The Commissioner has not put before me any material which shows that UTS is in any way insolvent. It is not a company which itself apparently actively carries on business, but equally, on the material, it is one which is or at least is proposed to be, if money is received from the Commissioner, a source of funds for other companies which carry on a business. 34 It was put on behalf of the Commissioner that the current status of RGL, being a company under administration, was material. That has a superficial attraction but not when one realises that it is no part of the deed of company arrangement pertinent to the administration that money received from the Commissioner, as a sequel to the Full Court's judgment, should be paid into the administration of RGL. This is really just a case where the taxpayer has succeeded and the Commissioner is seeking to challenge that success. 35 Further, as I was reminded on behalf of UTS, its director and officers are necessarily obliged to deal with any money which may come to them from the Commissioner, full in the knowledge that they may have to refund it, and refund it imminently, depending on the outcome of High Court proceedings. 36 There was a considerable degree of controversy, to say the least, in submissions before me as to how much may or may not have to be refunded on the part of the Commissioner in the implementation of the orders of the Full Court. The question as to how much is not for me to determine. For better or for worse, the way in which the legislation is constructed these days consigns that task to the Commissioner in terms of implementing the order of a court. It might be thought by some that this case illustrates difficulties that can attend allowing the Commissioner to do that. I say that because, if it were the case that an order of the court required a particular amount to be paid, and the assessments which otherwise stood in the way of that were quashed by that order, then questions as to how much ought or ought not to be paid would not arise at all. Mr Cory has deposed to a particular sum being payable, which is in the order of some millions of dollars. The Commissioner submits that the sum should be rather less than that, in the order of $600,000. 37 It is for the Commissioner to work out how much in the first instance. I do not consider it appropriate to embark upon deciding how much. The question is really whether the Commissioner should embark upon the exercise of calculating how much. 38 It was also put that if the Commissioner were to embark on that exercise, which would include setting aside assessments, that might intrude upon the basis of the special leave application. With all due respect, that, to me, rather underscored why it was that the Commissioner, if there were any substance in the submission, ought to have ventilated that subject before the High Court seized with the special leave application. 39 It seems to me an unlikely effect of our law that the Commissioner's implementing the decision of the Full Court would have the effect of denying the basis of the High Court's ability to exercise its jurisdiction. In any event, UTS has signified that it doesn't propose in any way to raise that issue before the High Court by way of seeking to have the case relisted so as to highlight that. One might think, in any event, that the High Court's orders could be framed in a way which would undo, and undo from an interior date, administrative steps which the Commissioner has taken on the strength of the order of the Full Court. 40 UTS has submitted, and rightly submitted, that it is not under any particular obligation to disclose what it is going to do with the money any more than other successful plaintiffs in other types of civil jurisdictions are obliged to disclose that. 41 UTS is entitled to an award of interest under the interest on overpayments legislation. The rate of interest is fixed by statute, s 8C of the Taxation (Interest on Overpayments and Early Payments) Act 1983 (Cth). That rate appears to me to be a modest one, having regard to prevailing Reserve Bank cash rates, if not, by reference to rates which might be achieved even on term deposits as a matter of notoriety. For all that, it is not as if UTS is without some protection. 42 The other matter to be considered is that, whilst UTS has been held out of its money for a long time, one might not expect that UTS will be held out of its money for an inordinate length of time into the future. I put it that way because it would be unseemly, to say the least, for a judge of this Court to speculate about precisely when judges of the High Court might deliver judgment. That said, one might expect that the judgment will be delivered at some stage in the course of this year. 43 UTS makes the submission that at least, if the process were started now, as, indeed, it should have been in October, on and from the 5th (assuming, of course, s 14ZZL does not have a palliative effect), it will have a head start, , in relation to getting the use of moneys. In other words, the administrative processes would start now rather than later. I do take that particular consideration into account. 44 In the end, what is needed is a balancing exercise. What persuades me that the case is one calling for the granting of a stay is the exceptional way in which it has been dealt with in the High Court. In other words, I am swayed by the return of the special leave application before a five member Full Court and the treating of that as if it were an appeal. That, to me, makes this case truly an exceptional one, where the High Court has been moved to deal with it, in effect, as if there had been a grant of special leave (although, of course, it may ultimately dispose of the case simply by not granting special leave). When I weigh that against the effect of interest on overpayments, the ordinary ability of a litigant successful in a case to have the fruits of the judgment, and the relative lack of prejudice in terms of a delayed start to the administrative processes, I consider that this is a case where there ought to be a stay. 45 The question then is until when should the stay run? In the application, the stay has been sought until the hearing of the application for special leave or any consequential appeal. To grant a stay would also, though, be to cut across the application for a mandamus. If the order is stayed, there is nothing, then, to direct the Commissioner to do. It seems to me that I should not key the granting of the stay to the hearing of the mandamus, but, rather, relate it to the pendency of the special leave application in the High Court. That being the case, there will be an order in terms of the paragraph 1 of the application. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.