Tooheys Ltd v Commissioner of Stamp Duties (NSW)
105 CLR 602(Judgment by: MENZIES J)
Between: TOOHEYS LTD
And: COMMISSIONER OF STAMP DUTIES (NSW)
Judges:
Dixon CJ
Kitto J
Taylor J
Menzies JWindeyer J
Subject References:
Taxation and revenue
Stamp duty
Exemptions
Deed between company and trustees establishing pension scheme for employees
Meaning of 'declaration of Trust'
Legislative References:
Stamp Duties Act 1920 (NSW) - Second Schedule
Judgment date: 13 June 1961
SYDNEY
Judgment by:
MENZIES J
Except for one matter I agree with the reasons for judgment given by Walsh J. for the Full Court but as to that one matter, i.e. the application of the fifth general exemption (viz. "All instruments relating to the services of apprentices, clerks, and servants"), I find myself in agreement with the judgment which Kitto J. has already delivered. To what his Honour has said I would for myself add but a few words to indicate a difficulty that has troubled me. The exception as phrased is obviously a clumsy way of exempting instruments relating to the services of all employees, including apprentices and clerks, if that is what is intended. For the collocation of words used there is, however, an historical explanation. The words "apprentices, clerks, and servants" were taken from English legislation which had its source in 55 Geo. III c. 184 and in that statute there was no room for doubt but that "clerks" meant articled clerks and "servants" only covered such servants as were not apprentices or articled clerks but were nevertheless put to a master to learn "any profession trade or employment". When the words were adopted in New South Wales, however, they were adopted without the context that in the English legislation confined "clerks" to articled clerks and "servants" to such servants as were learners, and this is how they still stand. Notwithstanding the hesitation to which the words used and their order give rise, I am not able to regard the mere fact that in the source from which the words came they were used with a limited meaning as sufficient to attribute to them that meaning in a different context. Were there in the New South Wales Act sufficient to confine the words "clerks" to articled clerks I would be disposed to read the word "servants" as ejusdem generis with the preceding category, but as it is I cannot do more than regard the words used as an equivalent, unsatisfactory as it is, for the phrase "servants including apprentices and clerks". Having reached this position I agree with Kitto J. about the words "relating to".
I consider, therefore, that this appeal should be allowed.