Home » News » Boral Windows and Ors v Industry Research & Development Board and Ors [1998] ATC 4479

Boral Windows and Ors v Industry Research & Development Board and Ors [1998] ATC 4479

This case is between Boral Windows Ptd Ltd (“First Applicant”), Gas Corporation of Queensland Ltd (“Second Applicant”) and Allen Taylor & Company Ltd (“Third Applicant”) and the Industry Research & Development Board (“First Respondent”), the Tax Concession Committee (“Second Respondent”) and the Secretary, Department of Industry Science & Tourism (“Third Respondent”) and the Commonwealth of Australia (“Fourth Respondent”).

Background

• The question reserved for decision is “Whether the Second Applicant’s registration under Section 39J, as communicated by letter dated 25 November 1996, is vitiated by the Industry Research and Development Amendment Act 1996”.
• Gas Corporation of Queensland Limited (“Gas Corp”) is the second of three applicants who seek judicial review relying upon the Administrative Decisions (Judicial Review) Act 1977 together with consequential relief.
• It was claimed that the first and second respondents failed to determine the application by Gas Corp for registration under Part IIIA of the Industry Research and Development (IR&D) Act 1986 in respect of the year of income ended 30 June 1993 within a reasonable time.
• It is conceded by the respondents that Gas Corp lodged with the First Respondent an application for registration pursuant to s 39J of the 1986 IR&D Act in March 1995 in respect of the 1992-93 year of income and that in November 1996 the IR&D Board registered that the application in respect of the 1992-93 year of income.
• After the date of registration, Parliament enacted the IR&D Amendment Act 1996 which the respondents contend had the consequence that Gas Corp, at the time it lodged it application to this Court and indeed at all relevant times after 2.30pm AET in December 1995 was to be treated as not having been registered.

Decision

The judged stated that “While Gas Corp factually was registered on 25 November 1996, as and from the 1996 IR&D Act being given the Royal Assent on 19 December 1996 but operating retrospectively from 6 December 1995, that act of registration was beyond power and in breach of s 39J(1)(a) with the consequence that, at the time of commencing the present application, Gas Corp was not and for legal purposes, never had been registered by the Board”. The answer reserved for decision was answered in the affirmative.

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