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HIGH COURT OF AUSTRALIA

RE APPLICATION FOR WRIT OF PROHIBITION AGAINST WHITE, CHIEF COLLECTOR OF TAXES PNG, ANOR; EX PARTE T A FIELDS PTY LTD

BARWICK CJ, GIBBS and JACOBS JJ

22, 27, 28 August 1975 -

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Barwick CJ    The prosecutor seeks by prohibition to restrain the registration by the Prothonotary of the Supreme Court of New South Wales under s 20 of the Service and Execution of Process Act 1901 (Com) as amended of a certificate of judgment given by the Supreme Court of Papua New Guinea against the prosecutor ordering the prosecutor to pay to the Chief Collector of Taxes of Papua New Guinea (the Collector) the sum of K86,930.89, and costs of action. The certificate of judgment is in due form. It states that the judgment was given in proceedings to recover unpaid tax. The amount ordered to be paid is expressed in the currency of the Territory, a currency authorized under the Central Banking (Currency) Act 1975 as amended, that Act being an Act of the Territory but ultimately deriving authority from an Act of the Parliament of the Commonwealth.

   The first ground on which prohibition is sought is, that the judgment of the Supreme Court of Papua New Guinea was not a final judgment. The reason advanced for this ground is that there is an appeal, as yet unresolved, before the appropriate tribunal against the assessment of tax which was the foundation of the judgment obtained by the respondent Collector. The Income Tax Act 1959 of the Territory (the Act) provides that a notice of assessment is conclusive evidence (except on appeal of the liability of the taxpayer to pay the assessed amount of tax. It further provides that the amount of tax is payable notwithstanding the currency of an appeal against the assessment. Accordingly, the judgment obtained by the respondent Collector, was regularly obtained notwithstanding the pendency of the tax appeal. I have no doubt that the judgment for the payment of the amount of the assessed tax was a final judgment in the action commenced for its recovery. It brought to an end the action of the Collector for the recovery of the amount of the assessment. The fact that the assessment is under appeal, having regard to the specific provisions of the Act for recovery of the assessed tax meantime, does not render the judgment in the action in any sense interlocutory or not final. There is, in my opinion, no substance on this ground.

   The second ground is that a judgment for the recovery of revenue is not a judgment under the meaning or operation of s 20. The argument is that, at common law, the courts of England would not enforce the revenue laws of a foreign country, a proposition which may be granted; then it is said that s 20 should be construed so as not to abrogate that rule of common law and that the words of s 20 should be qualified, so as to exclude a judgment for an amount of tax due under the law of a State or a Territory.

   Of course, general words in a statute may be construed in a qualified sense, if the evident policy or purpose of the statute requires such a qualification. The Act is an Act of the Parliament evidently intended to provide for the service and execution throughout the Commonwealth including its Territories, of the process of the States forming part of the Commonwealth and of the Territories of the Commonwealth and of the courts of the States and of the Territories. Neither the States nor the Territories are treated by the Act as foreign countries vis-a-vis one another or vis-a-vis the Commonwealth. They are regarded as what they are, parts and possessions of the Commonwealth. Its language is akin to that of the Judgments Extensions Act 1868 and of the Inferior Courts Judgments Extension Act 1882 and can be contrasted with the language and structure of the Administration of Justice Act 1920 of the State of New South Wales. I can see no basis upon which the language of the Act should be qualified to accommodate it to the pre-existing common law obtaining in relation to the process and judgments of foreign countries. The Court decided so much on relation to Pt III of the Act in the case of Walker v Duncan (1975) 6 ALR 254; 49 ALJR 231. I am unable to accept that any different conclusion should be drawn as to Pt IV. In my opinion, a judgment for the payment of money which is founded upon an assessment of tax is a judgment within the meaning of s 20 of the Act.

   The third ground on which prohibition is sought is that the certificate of judgment indicates that the judgment of the Supreme Court of Papua New Guinea was for payment of a sum of money expressed in kina, that being the name of the currency of that Territory. It is said that the Supreme Court of New South Wales - and for that matter the courts of the States of Australia generally - may not give judgment for the payment of money expressed otherwise than in the legal tender of Australia, presently dollars and cents. Therefore it is said that the judgment of the Supreme Court of Papua New Guinea is not a judgment under s 20 . Consequently the Prothonotary of the Supreme Court of New South Wales is under no duty and has no authority to register the certificate of judgment tendered to him by the respondent Collector.

   The authority for the use of the kina as legal tender in the Territory, as I have pointed out, is derived in the long run from a statute of the Parliament enacted pursuant to s 122 of the Constitution. It may properly be said to be a form of Australian currency, though limited in use to the Territory. The Act clearly contemplates that judgment for the payment of money given by the Supreme Court of the Territory will be registrable. The possibility of the provision by the Parliament of a form of currency for the Territory must be regarded as having been contemplated at least when the Act was extended in 1963 to embrace the Territory of Papua New Guinea. It is inappropriate to treat the kina as a form of foreign currency under the rule, if it remains the rule, that Australian courts may not express a judgment for the payment of money in a foreign currency. It is a currency authorized for use in the Territory by Australian law. I find no need in order to dispose of this application to canvass or discuss the judgments of the English Court of Appeal in Schorsch Meier GmbH v Hennin [1974] 3 WLR 823; [1975] 1 All ER 152 , and Miliangos v George Frank (Textiles) Ltd [1975] 2 WLR 555; [1975] 1 All ER 1076, or the decisions of the House of Lords referred to in those cases. Here the Act lays a duty upon the Prothonotary of the Supreme Court upon receipt of a certificate in due form given by the appropriate officer of a court of record of a State or Territory to register the certificate in a specified manner in a register authorized by the Act and called the Australian Register of Judgments.

   I find no difficulty or incongruity in the registration of a certificate of judgment of a court of law of a State or of a Territory expressed in a form of currency authorized by the Parliament, though not made legal tender throughout the Commonwealth and its Territories.

   If it should be decided that, as of this time, the courts throughout Australia have jurisdiction to give judgment for a sum of money expressed in a foreign currency, I would see no difficulty in applying s 21(1) so as to require the registration of a certificate of judgment of a court of a State which orders the payment of money in such a currency.

   Thereafter the Act provides the consequences of such registration. The exact extent of the transmutation effected by s 21(2) of the Act does not need to be decided in order to resolve the present matter and may remain for future decision. We are not presently concerned with those consequences.

   All three grounds upon which prohibition is sought, depend upon excluding by construction the certificate of judgment from the operation of s 21 on the footing that the judgment of the Supreme Court of the Territory for one or more of these grounds is not a judgment within the meaning of s 20. In other words each ground requires the qualification of the definition of judgment in s 3 to exclude interlocutory judgments, revenue judgments and judgments not expressed in money which is legal tender throughout Australia. There is nothing, in my opinion, in the evident policy or purpose of the Act which requires any departure from the plain words of the definition of s 20 of the Act. Indeed that policy and purpose would require that the relevant language of the Act be in terms applied.

   In my opinion the order nisi should be discharged, the prosecutor is to pay the costs of the respondent Collector.

Gibbs and Jacobs JJ    My brother Jacobs and I are in agreement with the conclusion expressed by the Chief Justice and with the reasons he has given for disposing of the first two grounds upon which prohibition is sought. As to the third ground, we do not find it necessary to say more than that the Service and Execution of Process Act prescribes the judgments that may be registered, including judgments of the Supreme Court of Papua New Guinea, and that no reason appears for saying that a judgment of that court is not within s 20 simply because it is not expressed in currency that is legal tender throughout Australia. Any conversion of currency is a machinery matter which does not arise at this stage.

   We accordingly think it unnecessary to determine whether the kina is a form of Australian currency, or whether a court of a State or Territory has power to give a judgment expressed in foreign currency.

   

Order Order nisi discharged. Prosecutor to pay the respondent Chief Collector's costs of the application.