CHIEF COMMR OF STATE REVENUE v CITIVALE PTY LIMITED

Judges:
Handley JA
Sheller JA
Davies AJA

Court:
New South Wales Court of Appeal

MEDIA NEUTRAL CITATION: [2000] NSWCA 111

Judgment date: Judgment given on 4 May 2000

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Handley JA

This is an appeal by the Commissioner from the judgment of Hodgson CJ in Eq [ reported at 98 ATC 4940] who upheld objections by Citivale Pty Limited to amended land tax assessments for the 1990, 1991, 1992, and 1993 land tax years. The company acquired the subject land at 79 Grafton Street, lots 1-4, and 1 Grafton Street, Woollahra from the Woollahra Council on 13 February 1989. The land had been used as a Council car park and after its transfer it continued to be used as a Council car park until April 1993. The Chief Judge in Equity held that at the relevant times the land was under the management and control of the Council. The company claimed exemption from land tax in reliance on s 651(1) of the Local Government Act 1919 (the 1919 Act). After some initial uncertainty, the Commissioner took the view that the land was not exempted by this provision. Amended assessments were issued in December 1995. Citivale objected to these assessments on 20 February 1996 and its objections were disallowed on 16 December that year. The company then appealed to the Supreme Court.

2. The company's appeal to the Supreme Court was allowed by the Chief Judge in Equity who made a declaration that it was not liable for land tax in the relevant land tax years in respect of the subject property by virtue of s 651 of the 1919 Act. This provided until its repeal in 1993:

``(1) Unless the contrary is expressly provided by any Act passed after the commencement of this Act, taxes and stamp duties shall not be chargeable or payable under any Act now or hereafter in force upon -

• (a) any land vested in or under the management and control of the council;
• (b) any property or income of the council;
• (c) any receipt or acquittance given by one servant of the council to another in the course of the internal administration of the council's business; and
• (d) any receipt for any money, or for the return of any money, deposited by any person with the council in relation to any contract entered into by him with the council, or in relation to any tender made by him for any contract with the council.

(2) This section shall not be deemed to extend to any rate or assessment made or levied by -

• (a) another council;
• (b) the Metropolitan Water Sewerage and Drainage Board;
• (c) the Board of Fire Commissioners of New South Wales.''

3. In 1919 the only land tax was the Federal tax levied under the Land Tax Assessment Act 1910 (as amended). Section 651 had no operation in relation to the Federal tax but land owned by local councils was expressly exempted by the Federal Act. The Commissioner has argued that the Land Tax Management Act 1956 (NSW) (the Act), which was passed after the Commonwealth vacated the land tax field, contains its own code of exemptions which excludes the operation of s 651(1)(a).

4. The Chief Judge appears to have approached the question through s 651 of the 1919 Act, no doubt because counsel addressed on that basis. In my judgment the correct approach is to examine the scheme of the later Act and then consider whether it is inconsistent with the earlier. Section 651(1) commences with the words:

``Unless the contrary is expressly provided by any Act passed after the commencement of this Act...''

5. In
Rose v Hvric (1963) 108 CLR 353 the High Court considered the meaning of this and equivalent provisions where the relationship between two statutes of the same Parliament

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ATC 4329

has to be determined. That appeal concerned s 154 of the Licensing Act (Vic) and s 74 of the Justices Act (Vic), both passed in 1958. The Court in its joint judgment at 357-358 said:

``In
Gourlay v Casey (1927) 38 CLR 586 the expression `unless otherwise expressly provided' as used in the Insolvency Act 1915 (Vict) was held to mean `unless some inconsistent provision is expressly made'. The qualifying words with which s 74 of the Justices Act begins may be similarly paraphrased, but some analysis even of the paraphrase is required. Notwithstanding a doubt expressed by Lord Dunedin in
In re Silver Bros Ltd [ 1932] AC 514 , 523 a particular enactment may be effectual to exclude the general provisions of s 74(1) of the Justices Act though it makes no special reference to it: see Lord Blackburn's speech in
Metropolitan District Railway Co v Sharpe (1880) 5 App Cas 425 , 441 . That this must be so becomes obvious when the case is considered of a particular enactment later in time of commencement than s 74(1). However that provision were framed, it could not detract from the operation of the later statute according to its true construction. Because this is so, exceptive words such as those which introduce s 74(1) had no legal effect beyond saving earlier enactments which otherwise would be inconsistent with the provision introduced. In regard to later enactments they `go no farther than the general law':
Garnett v Bradley (1878) 3 App Cas 944 , 965 and `are not really necessary because if the later Act shows a contrary intention the earlier enactment cannot control it. But they remind us of the general rule'. So Isaacs J observed in
Bennett v Minister for Public Works (NSW) (1908) 7 CLR 372 , 384 , speaking of the exceptive provision `unless the contrary intention appears'. Whatever the verbal formula employed it cannot have in regard to later legislation any greater force or value than that expression. As Keating J remarked in
Chorlton v Lings (1868) LR 4 CP 374 `to do more would be exceeding the competency of parliament with reference to future legislation' (ibid 395).

What, then, is the point of the insistence in such an exceptive provision as that which introduces s 74(1) of the Justices Act that the general provision shall apply except where otherwise `expressly' enacted? In appropriate contexts `expressly' may be used as the antonym of `impliedly', as it is... in the statement that `an express repeal of or exemption from an earlier enactment is no more effectual than if it were created by implication':
Goodwin v Phillips (1908) 7 CLR 1 , 16 . But this cannot be the sense of the word in section 74(1), for the reason which the statement just quoted provides. The word merely serves to emphasise the generality of the main provision by making clear that no case is outside that provision unless that is the necessary result of the operation of another enactment according to the intention it manifests: see
Metropolitan District Railway Co v Sharpe (1880) 5 App Cas 425 and
Chorlton v Lings (1868) LR 4 CP 374 .''

6. The Act exempted local councils from the tax. The exemption which applied in respect of the 1990 and 1991 land tax years was that contained in s 10(1)(a) which was as follows:

``Except where otherwise expressly provided in this Act the following lands shall be exempt from taxation under this Act: -

• (a) land owned by the Crown... or by a council of an area or a county council within the meaning of the Local Government Act 1919 , as amended by subsequent Acts, or by any public authority...''

7. In the later tax years the relevant exemption is that conferred by s 21C(1) which provides:

``The Crown, a local council, a county council or a public authority is not liable for land tax in respect of land it owns (except as specifically provided by Part 3).''

8. Although the Council as owner is exempt, lessees of council land are liable to land tax under s 21C(2) which provides:

``A lessee (other than a sub-lessee) of land or part of land owned by the Crown, a local council or a county council is for land tax purposes to be considered the owner of a parcel of land ( `the notional parcel' ) consisting of the land or part leased. The Crown, local council or county council is then not to be considered owner of the notional parcel.''

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ATC 4330

9. The scheme of the Act is to impose the tax on all land in the State which is not exempted under the Act. This appears from ss 7, 8 and 9 which provide:

``7(1) Land tax at such rates as may be fixed by any Act is to be levied and paid on the land value of all land situated in New South Wales which is owned by taxpayers (other than land which is exempt from taxation under this Act).

...

8 Land tax shall be charged on land as owned at midnight on the thirty-first day of December immediately preceding the year for which the land tax is levied.

...

9(1) Land tax is payable by the owner of land on the taxable value of all the land owned by that owner which is not exempt from taxation under this Act.''

10. The only relevant exemptions in the Act are those contained in s 10(1)(a) for the 1990 and 1991 years, and in s 21C(1) for the 1992 and 1993 years. These exemptions only apply to land owned by the Council. The subject land is not within these exemptions because at the material times it was owned by the company.

11. In my judgment ss 7(1) and 9(1) of the Act are express provisions to the contrary for the purposes of s 651(1) of the 1919 Act so that the exemption it confers has no application to land tax. Sections 7(1) and 9(1) apply to all land in the State ``which is not exempt from taxation under this Act''. These express provisions necessarily exclude exemptions from taxation under another statute such as the 1919 Act. The same result flows from the application of the principles of construction referred to in Rose v Hvric in the passage quoted.

12. Mr B Sullivan SC, who appeared for the respondent, referred us to s 741 of the Local Government Act 1993 which re-enacted with minor consequential amendments the provisions of s 651 of the 1919 Act. Section 741 does not apply to the 1993 land tax year because it was not in force at the relevant time. However the re-enactment of s 651 as s 741 of the 1993 Act demonstrates, if that is required, the continuing authority of s 651 but both exemptions are conferred by another Act.

13. The company's right to the benefit of the exemption under s 651 would have been clear beyond argument if ss 7(1) and 9(1) had referred to land which was exempt from taxation under ``this or any other Act''. The restrictive terms of those sections may be contrasted with s 4 of the Stamp Duties Act 1920 and cl (9) of its Second Schedule. Section 4 charges the several instruments and matters described or mentioned in the Act and in the Schedules with the several duties and at the several rates in the Act and in the Schedules specified ``which duties... shall be subject to the exemptions contained in this Act and the said Schedules and in any other Act for the time being in force''. Clause 9 of the Second Schedule exempts from stamp duty under Part 3 of the Act ``Generally any instrument expressly exempted under any Act''.

14. In my opinion therefore the appeal should be allowed. Counsel for the Commissioner contended that in any event the subject land was not within the exemption in s 651(1) because during the relevant years it was not under the management and control of the council. The primary Judge rejected this submission on the evidence and was clearly correct in doing so.

15. In my opinion the following orders should be made:

• (1) Appeal allowed with costs;
• (2) Judgment and orders of the Administrative Law Division set aside;
• (3) In lieu thereof order that the appeals to that Division from the disallowance of the company's objections to the amended assessments for the 1990, 1991, 1992 and 1993 land tax years be dismissed;
• (4) The respondent is to pay the Commissioner's costs of the proceedings in the Administrative Law Division;
• (5) The respondent to have a certificate under the Suitors Fund Act if qualified.