Anderson's Pty Ltd v Victoria
[1964] HCA 77111 CLR 353
(Judgment by: Windeyr J)
Anderson's Pty Ltd
vVictoria
Judges:
Barwick CJ
Mctiernan J
Kitto J
Taylor J
Menzies J
Windeyr JOwen 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:
Windeyr J
In my opinion the provisions of the Stamps Act 1958 (Vic) that are challenged do not impose duties of excise. The tax they impose cannot I think be described as a tax upon goods: and that is the fundamental meaning of an excise. The expression "tax upon goods" embodies a concept that is perhaps not susceptible of exact, definitive or complete economic or legal analysis. But I agree in the explanation of it given by my brother Kitto whose judgment I have had the advantage of reading.
In its typical form an excise is commonly described as imposing a tax on goods of a particular kind -- as a duty of so much on beer, spirits, tobacco, tea or some other commodity. Excise duties are in a fiscal sense analogues of customs duties: but the distinction between them is, as I said in the Dennis Hotels Case (1960) 104 CLR 529, at pp 598-600, the result of a past history of their collection by different authorities, rather than of any fundamental distinction in their fiscal character. In either case the levy, in its typical form, is exacted in respect of a specified commodity, determined by its inherent physical character, and sometimes additionally by the place of its origin. In the case of an excise, being a duty on the commodity locally produced, the point -- upon production or at some stage after production and before consumption -- at which the duty is collected is a matter of administrative convenience rather than a determinant of the fiscal character of the impost. But a tax upon goods of a particular kind collected at a particular stage of their passage from production to consumption is not the same thing as a tax upon a particular method by which goods of different kinds are put into consumption. A consequence of the distinction becomes manifest when the price of articles reaching consumers by the medium of some form of credit transaction is seen to reflect, in varying degrees, a tax imposed upon such transactions, while the price of other articles of exactly the same kind but bought for cash contains no element attributable to such tax.
The tax here, it seems to me, is a tax that falls upon persons who engage in particular forms of transactions, which may with sufficient accuracy be called credit transactions. Those transactions relate to goods, but not to goods of any particular kind, not to a commodity. The tax is a tax upon persons who are parties to particular forms of transactions in respect of any forms of goods other than those expressly excepted.
I consider the demurrers should be allowed and judgment given for the defendants in each case.