PARTIES: NGURRATJUTA PMARA/NTJARRA ABORIGINAL CORPORATION
v
COMMISSIONER OF TAXES
TITLE OF COURT: COURT OF APPEAL OF THE NORTHERN TERRITORY
JURISDICTION: COURT OF APPEAL OF THE NORTHERN TERRITORY exercising Territory
jurisdiction
FILE NO: AP 7 of 2000 (9901699)
#DATE 31:05:2001
DELIVERED: 31 May 2001
HEARING DATES: 22 March 2001
JUDGMENT OF: MARTIN CJ, ANGEL & THOMAS JJ
APPEAL - STATUTES - CONSTRUCTION
Determination of Commissioner of Taxes - set aside by Trial Judge - matter
permitted to go back to the Commissioner - meaning of s 9(a) of
Pay-roll Tax Act 1978 (NT) - exclusively engaged in work of a public
benevolent nature - exempt from pay-roll tax - statutory construction - whether
necessary to refer to extrinsic material - Second Reading Speech - appeal
dismissed
Pay-roll Tax Act 1978 (NT), s 9(a); Pay-roll Tax Amendment Act (No.2)
1980 (NT); Interpretation Act 1978 (NT), s 62B
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384;
Newcastle City Council v GIO General Ltd (t/a GIO Australia)
(1997) 191 CLR 85; Crusher Holdings Pty Ltd v Commissioner of Taxes (NT)
(1994) 117 FLR 485, cited
Appeal dismissed.
Counsel:
Appellant: CR McDonald QC and CH Goodall
Respondent: JW Durack SC and GJ Stirk
Solicitors:
Appellant: Bowden Collier and Deane
Respondent: Povey Stirk
Judgment category classification: A
Judgment ID Number: tho200109
Number of pages: 11
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
BETWEEN:
NGURRATJUTA PMARA/NTJARRA ABORIGINAL CORPORATION
Appellant
AND:
COMMISSIONER OF TAXES
Respondent
CORAM: MARTIN CJ, ANGEL & THOMAS JJ
(Delivered 31 May 2001)
MARTIN CJ:
[1] I have had the benefit of a draft of the reasons for decision of Thomas J.
I am in general agreement with them and agree that the appeal must be
dismissed.
[2] However, I wish to add a little to the issue surrounding the disposition of
the appeal by his Honour Justice Riley.
[3] The grounds of appeal are as set out at par 7 of her Honour's reasons.
At 2.6 it is said that his Honour erred "in referring the matter back to the
respondent for further consideration according to law". In my view his Honour
did not refer the matter back as suggested.
[4] Having found that the respondent erred in law in his approach to the
objections made by the appellant to the respondent, his Honour had disposed of
the substantial grounds of appeal and could go no further than to set aside the
decision of the Commissioner and, as he said, "permit the matter to go back to
him for consideration accordingly to law".
[5] The Act and Rules of Court are silent as to the procedures to be adopted in
the conduct and disposition of an appeal such as this. The Court must
therefore devise that for itself (see generally Williams Civil Procedure in
Victoria, par 61.01.60).
[6] In the circumstances of this case his Honour's discretion did not
miscarry.
ANGEL J
[7] I agree that this appeal should be dismissed.
[8] I agree with Riley J and the reasons of Thomas J for dismissing the
appeal.
THOMAS J: [10] On 24 December 1998 the Commissioner of Taxes issued a determination
that employees of the appellant corporation who were engaged in activities
relating to "accounts and management" were not (during the relevant period)
exclusively engaged in works of a public benevolent nature within the meaning
of s 9(a) of the Pay-roll Tax Act 1978 (NT) ("the Act").
[11] The appellant appealed to a single judge of the Supreme Court on the
grounds that the Commissioner of Taxes had erred in determining that employees
who were engaged in commercial activities designed to generate funds to further
the object of the appellant did not thereby exclusively engage in work of a
public benevolent nature.
[12] A further ground of appeal was that the Commissioner of Taxes had erred in
assessing and imposing pay-roll tax in the sum of $105,741.05 upon the
appellant.
[13] The appeal to a single judge of the Supreme Court sought, inter alia
orders that:
1) The appeal be allowed.
2) A declaration that the Notices of Assessment dated 4 December 1997 and any
penalty tax imposed in conjunction therewith are of no legal force or
effect.
3) A declaration that between 1 July 1993 and 30 June 1996 all employees of the
appellant were exclusively engaged in work of a public benevolent nature and
are exempt from pay-roll tax under s 9(a) of the Act.
[14] At the conclusion of his Reasons for Decision delivered on 3 May 2000, the
learned Trial Judge stated at para 44: The learned Trial Judge then formally allowed the appeal and
set aside the decision of the Commissioner of 24 December 1998.
[15] The Notice of Appeal by the appellant in this matter sets out the
following grounds: 2.1 Erred in finding that even where the public benevolent status of an
institution is admitted, Section 9(a) of the Pay-roll Tax Act requires:-
(a) a consideration of the nature of the work undertaken by each and every
individual whose wages are the subject of the application for exemption; and
(b) that a line must be drawn between the activities of those employees
which are of a public benevolent nature, and those that are not.
2.2 Ought to have found, on a proper construction of Section 9(a), that the
exemption is available where the employees in question are exclusively engaged
in the bona fide work of the relevant public benevolent institution.
2.3 Erred in adopting a strictly grammatical or literal interpretation of
Section 9(a), and in doing so:-
(a) failed to have any or any adequate regard to the purposive approach to
statutory construction;
(b) failed to have any regard to the mischief intended to be addressed by an
amendment to Section 9(a) passed in 1980 ("the amendment");
(c) failed to consider relevant extrinsic materials which cast light upon
the intended purpose, scope and effect of the amendment.
2.4 Ought to have found that all employees of the appellant who were
involved in work directed toward achieving a measure of self support, or
lightening the load on the public purse, were undertaking work of a public
benevolent nature.
2.5 Erred in not finding that each one of the employees of the appellant,
for the relevant period, were exempt from pay-roll tax.
2.6 Erred in referring the matter back to the respondent for further
consideration according to law.
2.7 Erred in his preliminary ruling that no further evidence could be
received or tendered even if an error of law by the respondent had been
demonstrated."
[16] The appellant sought the following orders from this
Court: 3.2 A declaration that all employees of the appellant were, for the relevant
periods, exempt from pay-roll tax under Section 9(a) of the Act.
3.3 An order for repayment of all sums wrongly paid to the respondent in
respect of pay-roll tax and penalties.
3.4 Costs."
[17] The substantial argument put forward by Mr McDonald QC,
counsel for the appellant, was that the learned Trial Judge had failed to
embrace the purposive approach to statutory construction: in particular by
failing to identify or appreciate the mischief being addressed by the 1980
amendment to s 9(a) of the Pay-roll Tax Act 1978 (NT) ("the amended
section"). In doing so the appellant asserts the learned Trial Judge fell into
error. It was argued that the learned Trial Judge failed to give a
construction which promoted the purpose and object of the amended section when
read in its full legal and historical context.
[18] In essence, Mr McDonald's submission was that the reasons for the
amendment to s 9(a) of the Pay-roll Tax Act 1978 (NT) in the Northern
Territory was a response to similar amendments made in a number of states of
Australia to close a loophole exposed by a particular fraud on the system. It
was Mr McDonald's submission, that seen in that historical context the
amendment did not mean there could be any suggestion that the persons to whom
wages were paid by the appellant corporation were not exclusively engaged in
work of a public benevolent nature.
[19] There is no issue with the fact that the appellant corporation is a public
benevolent institution.
[20] Section 9(a) of the Pay-roll Tax 1978 (NT) provides as follows: Section 6 does not apply to wages paid or payable -
(a) by a religious or public benevolent institution, or by a public
hospital, to a person during a period in respect of which the institution or
hospital, as the case may be, satisfies the Commissioner that the person is
exclusively engaged in the religious work, work of a public benevolent nature
or work of the hospital of a kind ordinarily performed in connection with the
conduct of public hospitals, as the case may be;"
[21] The learned Trial Judge stated at paragraphs 28 and 29 of
his Reasons for Decision: It follows from this brief legislative history that, after the amendment, it
was not intended by the legislature that it should be sufficient for an
institution to be a public benevolent institution in order to obtain exemption.
Something more was required and that is that, during the relevant period, the
person concerned be exclusively engaged in work of a public benevolent nature."
[22] His Honour then went on to state that if the Commissioner
is satisfied a person is exclusively engaged in work of a public benevolent
nature then an exemption is allowed and raised the question of "when are
persons employed by a public benevolent institution to be regarded as not
exclusively engaged in work of a public benevolent nature?"
[23] His Honour, in paragraph 34 of his Reasons for Decision, said that "the
nature" of the work of an employee is not to be characterised as "benevolent"
merely because that person works for a public benevolent institution or merely
because the revenue produced by that person is used solely for the purpose of
such an institution. Such an interpretation would render the second limb of
s 9(a) nugatory. With respect, I agree with his Honour's interpretation
of s 9(a).
[24] I do not agree with the argument advanced on behalf of the appellant that
it is either necessary or appropriate to refer to any extrinsic material
including the Second Reading Speech.
[25] In support of the submission that this Court should refer to extrinsic
material and in material the Second Reading Speech Mr McDonald QC seeks to rely
on, amongst other authorities, the following passage from CIC Insurance Ltd
v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408: and the relevant passages from Newcastle City Council v GIO
General Ltd (t/a GIO Australia) (1997) 191 CLR 85 at 93 - 94 per Brennan
CJ, 99 per Toohey, Gaudron and Gummow JJ and 112 per McHugh J.
[26] I note also the provisions of s 62B of the Interpretation Act 1978
(NT).
[27] I am not persuaded that the authorities on which Mr McDonald QC relies
make it imperative to refer to such extrinsic material in respect of a
provision such as s 9(a) of the Pay-roll Tax Act 1978 (NT). Section 9(a)
of the Pay-roll Tax Act is clear in its meaning and discloses the mischief that
was addressed by the amendment on its face in the obvious context of a
limitation to a provision for exemption from tax. Without reference to any
other material it is possible to read and interpret s 9(a) (as amended) in
its legal and historical context.
[28] The appellant maintains that the learned Trial Judge erred in concluding
that it was necessary "to draw a line" between the activities of an employee
which are of a public benevolent nature, and those that are not.
[29] With respect I do not consider the learned Trial Judge erred in so
determining.
[30] In a preliminary ruling, his Honour had determined that "the appeal would
proceed on the basis of the information and materials before the Commissioner
and, in the event that a relevant error on the part of the Commissioner was
identified that he would review the original material for himself and determine
the question on that material alone." In making this ruling his Honour relied
on the decision of Martin CJ in Crusher Holdings Pty Ltd v Commissioner of
Taxes (NT) (1994) 117 FLR 485. There was no challenge to this latter
decision before this Court.
[31] His Honour noted that it would be necessary to address the functions of
individual staff members in the accounts and management area in respect of the
relevant periods of time, the evidence that might provide clarification of the
work then and there undertaken and the nature of the external recipient of the
benefits of the "commercial services". He further indicated that not all of
the information that was before the respondent was before him.
[32] Mr McDonald QC submitted that there was no need for the learned Trial
Judge to refer these matters back to the Commissioner that this assessment
could be made by the judge from a perusal of the documents in Exhibit 1.
Mr McDonald referred in particular to the invoices, documents 31 to 44
inclusive. These invoices in the main contain simply the words "Consultancy
Fees for the Resource Centre" and state an amount.
[33] I do not agree that a perusal of these invoices would enable the learned
Trial Judge to determine the function of individual staff members in the
accounts and management area such as to enable an assessment to be made as to
whether this fell within the exemption provided in s 9(a).
[34] The Commissioner of Taxes has previously sought further information from
the appellant by letter dated 4 April 1997 (document 54 in Exhibit 1). In
particular, question 2 which requests as follows: [35] Mr McDonald QC, argues that to require the appellant to
provide such information places a great inconvenience and unnecessary
administrative burden upon the appellant. I do not accept this argument is a
valid reason not to comply with the Commissioner's requirements. The invoices
on the face of them do not adequately explain what work was actually done. Any
enterprise rendering such an account for monies payable could be expected to
provide more details of the work done to justify the amount charged.
[36] Whilst the request from the Commissioner of Taxes is for a different
purpose a refusal to answer cannot be justified on the basis of inconvenience
or administrative burden.
[37] I agree with the decision reached by his Honour that the decision of the
Commissioner be set aside and that this will permit the matter to go back to
him for consideration according to law.
[38] I would dismiss the appeal.
"I have been told that all of the information that was before the
respondent is not before me. This was the result of practical considerations
designed to keep the information to a manageable level. Whilst each party
placed before me all of the material upon which that party wished to rely, I
note that no effort has been made to address the functions of individual staff
members in the accounts and management areas in respect of relevant periods of
time, nor the evidence that might provide clarification of the work then and
there undertaken. The nature of the external recipients of the benefits of the
"commercial" services was not considered. In my opinion those matters should
be addressed. That being so it seems to me that I should set aside the
decision of the Commissioner. That will permit the matter to go back to him
for consideration according to law."
"The learned Judge:-
"3.1. That the appeal be allowed.
"9. Exemption from tax
"Section 9 of the Pay-roll Tax Act was amended by
Pay-roll Tax Amendment Act (No.2) 1980. Prior to the amendment s 9
of the Act provided for the exemption from tax under s 6 of the Act of
`wages paid or payable ...by a ... public benevolent institution' without
further qualification. Following the amendment effected by Pay-roll Tax
Amendment Act (No.2) 1980 that exemption was qualified by the addition of
the second limb which added the requirement that wages also had to be paid or
payable `to a person during a period in respect of which the institution ...
satisfies the Commissioner that the person is exclusively engaged in the ...
work of a public benevolent nature ... .'
"It is well settled that at common law, apart from any reliance
upon s 15AB of the Acts Interpretation Act 1901 (Cth), the court
may have regard to reports of law reform bodies to ascertain the mischief which
a statute is intended to cure. Moreover, the modern approach to statutory
interpretation (a) insists that the context be considered in the first
instance, not merely at some later stage when ambiguity might be thought to
arise, and (b) uses `context' in its widest sense to include such things as the
existing state of the law and the mischief which, by legitimate means such as
those just mentioned, one may discern the statute was intended to remedy.
Instances of general words in a statute being so constrained by their context
are numerous. In particular, as McHugh JA point out in Isherwood v Butler
Pollnow Pty Ltd, if the apparently plain words of a provision are read in
the light of the mischief which the statute was designed to overcome and of the
objects of the legislation, they may wear a very different appearance.
Further, inconvenience or improbability of result may assist the court in
preferring to the literal meaning an alternative construction which, by the
steps identified above, is reasonably open and more closely conforms to the
legislative intent."
"2. Whether any of the accounting and management staff been
employed to conduct administrative or accounting services for any of the
commercial operations of the association? If so, please advise how these
activities would be considered as providing exclusive, direct, public
benevolent aid to the members of your association."