Anderson's Pty Ltd v Victoria
[1964] HCA 77111 CLR 353
(Judgment by: Menzies J)
Anderson's Pty Ltd
vVictoria
Judges:
Barwick CJ
Mctiernan J
Kitto J
Taylor J
Menzies JWindeyr J
Owen J
Legislative References:
Stamps Act 1958 (Victoria) - subdiv (14) of Div 3 of Pt II
Case References:
Bolton v Madsen (1963) - 110 CLR 264
Parton v Milk Board (Vic) - (1949) 80 CLR 229
Dennis Hotels Pty Ltd v Victoria - (1960) 104 CLR 529
Matthews v Chicory Marketing Board (Vic) - (1938) 60 CLR 263
Peterswald v Bartley - (1904) 1 CLR 497
Browns Transport Pty Ltd v Kropp - (1958) 100 CLR 117
Bank of Toronto v Lambe - (1887) 12 App Cas 575
Judgment date: 17 December 1964
Judgment by:
Menzies J
The sections of the Stamps Act 1958 (Vic), which are here impugned as imposing duties of excise, exact stamp duty at the point where certain goods reach the consumer from the retailer or other final distributor -- "the vendor" -- by virtue of any one of three specified transactions: a credit purchase agreement, a hirepurchase agreement or a rental agreement. I regard each such agreement as having a common feature, viz an agreement whereby, in a broad sense, credit may be given. If it be thought that a rental agreement does not belong in this category, I would point to the peculiar nature of a rental agreement as defined (that is, after a specified number of instalments, the bailment which the agreement creates continues either without further payment or the payment of a nominal amount) and, in the same connexion, I would refer to the excellent article in the Law Institute Journal (Vic), Vol 38, no 10, at p 366, where at p 378 it is shown how rental agreements are used as instruments for giving credit to consumers.
The statutory scheme is to require agreements as specified to be in writing and to impose upon the vendor making the agreement the obligation to pay stamp duty calculated not upon the value of the goods but, in effect, upon so much of their value as is not then and there paid.
In deciding whether stamp duty so imposed is a duty of excise, nothing is, I think, to be gained by going back beyond Bolton v Madsen (1963) 110 CLR 264, where there appears a statement of what this Court has decided is a duty of excise (1963) 110 CLR, at p 271. It is a tax directly relating to goods -- and, as I think, goods of home production only -- imposed at a step in their production or distribution before reaching the consumer. The question here is, therefore, whether the stamp duty is a tax directly relating to goods.
It has been found useful in determining whether a tax is a duty of excise to pose the question whether it is in truth a tax upon persons who conduct a business producing, carrying, distributing or selling goods, or a tax "upon" or "in respect of" or "in relation to" goods: see Peterswald v Bartley (1904) 1 CLR 497; Matthews v Chicory Marketing Board (Vic) (1938) 60 CLR 263; Browns Transport Pty Ltd v Kropp (1958) 100 CLR 117; Dennis Hotels Pty Ltd v Victoria (1960) 104 CLR 529; and Bolton v Madsen (1963) 110 CLR 264. It is, of course, true that a tax directly related to goods must always be borne by persons; nevertheless, the essence of the distinction which has been attempted is between a tax on the one hand which, according to its nature, is upon a person for the doing of what he does in relation to goods notwithstanding that the payment of the tax is something that is likely to be taken into account in fixing the price of the goods which the person taxed is engaged in producing, carrying, distributing or selling, if and when they are sold; and, on the other hand, a tax which, according to its nature, is a tax upon production because it is related to the quantity or value of goods produced, distributed or sold. In all of the cases which I have just cited, except Matthews v Chicory Marketing Board (Vic) (1938) 60 CLR 263, the tax was held not to be a duty of excise, though in Peterswald v Bartley (1904) 1 CLR 497 it was a brewers' licence fee, in Browns Transport Pty Ltd v Kropp (1958) 100 CLR 117 it was upon a carrier of goods, in Dennis Hotels Pty Ltd v Victoria (1960) 104 CLR 529 it was upon a licensed victualler in respect of purchases for retail sale, and in Bolton v Madsen (1963) 110 CLR 264 it was again upon a carrier of goods. In Matthews v Chicory Marketing Board (Vic) (1938) 60 CLR 263. the levy upon producers of chicory of £1 for every half-acre planted was held to be a duty of excise because "the basis adopted for the levy has a natural, although not a necessary, relation to the quantity of the commodity produced": see per Dixon J (1938) 60 CLR, at p 303.
I have come to the conclusion that the tax here in question, which is calculated upon what in fact remains to be paid for the goods -- which may be much or little -- and has no necessary or natural relation to the quantity or value of the goods distributed, is not a duty of excise notwithstanding that the tax is imposed upon a step which can be said to be taken in the course of the distribution of the goods from manufacturer to consumer. The tax lacks, therefore, that element necessary to constitute it a duty of excise that was found to be present in Matthews v Chicory Marketing Board (Vic) (1938) 60 CLR 263. It is a tax upon the vendor, who must pay it and is forbidden to pass it on, and the tax depends upon his entering into an arrangement of the kind specified.
In my opinion, the demurrer should be upheld and judgment given for the defendants.