Plessey Australia Pty. Limited v. Federal Commissioner of Taxation

Sheppard J

Federal Court

Judgment date: Judgment handed down 18 October 1989.

Sheppard J.

Pursuant to sec. 41 of the Sales Tax Assessment Act (No. 1) 1930, the Commissioner of Taxation has referred to this Court the Commissioner's decision to disallow an objection made by the applicant to an assessment of sales tax in respect of goods sold by it August 1984. The goods in question are described in the evidence as a computer-aided dispatch system for which the abbreviation CAD is used. The sale was to the well-known organisation, the National Roads and Motorists Association, that is, the NRMA. I was informed by counsel that, although the liability for sales tax is imposed by the legislation upon the applicant, the contractual arrangements between the applicant and the NRMA are such that the NRMA is obliged to pay to the applicant whatever the appropriate amount of sales tax is.

The contest between the parties is not whether any sales tax at all is payable; rather it is whether the applicant was entitled to a concessional rate of sales tax because of the provisions of the relevant Sales Tax Act and the Sales Tax (Exemptions and Classifications) Act 1935 (``the Act'') which were in force at the time of the transaction. The relevant provision of the Act is item 7 of the Third Schedule which provides as follows:

``7(1) Machinery, implements, apparatus and materials (other than road vehicles of the kind ordinarily used for the transport of persons or the transport or delivery of goods, towing trucks or salvage vehicles, or parts for those road vehicles, towing trucks or salvage vehicles) for use exclusively or primarily and principally, for business or industrial purposes, in -

  • (a) servicing, repairing or reconditioning -
    • (i) motor vehicles;
    • (ii) aeroplanes (including flying boats, seaplanes and helicopters);
    • (iii) ships, boats and other vessels;
    • (iv) railway rolling stock; or
    • (v) parts of any goods specified in the preceding provisions of the paragraph;
  • (b) repairing tyres, including retreading and recapping;
  • (c) constructing, maintaining or repairing (or excavating or levelling in connexion with constructing, maintaining or repairing) buildings or other structures, or roads, dams, pipe lines, drains, trenches, tunnels or other works; or
  • (d) repairing footwear for human wear,

but not including goods which become part of the goods, structures or works serviced, repaired, reconditioned or constructed, as the case may be, or lubricants as defined in sub-clause (1) of clause 1 of the First Schedule

(2) Machinery, implements, apparatus and materials (other than road vehicles of the kinds ordinarily used for the transport of persons or the transport or delivery of goods, or parts for those vehicles) for use by a person exclusively or primarily and principally in the repair or maintenance of machinery, implements or apparatus used by him and covered by sub-item (1), but not including lubricants as defined in sub-clause (1) of clause 1 of the First Schedule

(3) Parts for machinery, implements or apparatus covered by sub-item (1) or (2).''

An item in similar terms has been in force for many years. Previously it was item 113F of Sch. 1. If the goods in question fall within item 7 of Sch. 3 to the Act, the rate of tax which is payable is, so I was informed by counsel, 7.5%. Otherwise it is 20%. The amount of tax involved is of the order of $330,000.

The question to be determined is whether the dispatch system which is in question is properly described as ``Machinery, implements, apparatus and materials... for use exclusively or primarily and principally, for business or industrial purposes, in... servicing, repairing or reconditioning... motor vehicles''.

There is no dispute about the nature of the dispatch system which was supplied by the applicant to the NRMA nor about the purpose for which it was supplied. It is necessary, however, to refer in a little detail to what the system involves.

By way of background it should be mentioned that roadside service and assistance has been provided by the NRMA to members since 1924. The service has always been financed from membership fees. These comprise an initial fee payable on joining and

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an annual subscription fee paid for each motor vehicle owned by the member. These fees are used by the NRMA to acquire, operate and maintain plant and equipment necessary for the operation of the roadside service system and to employ persons to operate it. The NRMA has grown from a membership of almost 5,000 at the end of 1924 to 2,000,000 today. It is the eighth largest motoring organisation in the world. On an average, 3,500 service calls are answered each day. The NRMA employs about 400 patrolmen. The figures for membership and numbers of patrolmen for 1984 when the transaction was entered into are not given but it may be inferred that the numbers involved were considerable.

In order to operate such an extensive roadside service, the NRMA has to have an efficient method of dealing with calls, identifying vehicles and members and dispatching service vehicles to stranded motorists.

The CAD system came into operation in 1985. It has the following attributes:

  • (a) It provides for efficient and effective dispatching of jobs as it lists and distributes them. The system is more efficient than the previous one because it eliminates a substantial amount of radio congestion.
  • (b) The system has eliminated problem of identifying members which previously existed. The system indicates whether a motorist is a financial member on the keying in of the name, car registration or membership number. This has eliminated disputes between motorists and patrolmen which sometimes occurred in cases where a member was not in a position to show his or her membership card.
  • (c) The system is able to inform the members where they are in the queue of persons awaiting service and thus how long it is likely to be before their calls are answered.
  • (d) The system plays an important part in assisting the patrolman to start the motorist's vehicle. His ability to do this depends on his being able to diagnose the fault which has caused the vehicle to come to a halt. If the patrolman is uncertain about the cause, the display unit in his vehicle has a ``request to speak'' button. He is able to switch from ``data mode'' to ``voice mode'' by which he communicates with a supervisor either at headquarters or on patrol. In this way the system has improved the access of patrolmen to supervisors who possess superior technical skills, thus resulting in a reduced number of vehicles having to be towed.
  • (e) The system has an in-built emergency alarm which enables a patrolman who is in some kind of difficulty or danger to call urgently for help.

Each service vehicle is fitted with a display unit which, in addition to the display, has a small keyboard. The patrolman commences his day by pressing a button on the unit. This sends a signal to the computer which in turn advises the dispatch clerk that the patrolman is on duty. His payroll sheet is noted accordingly. He receives a message identifying his shift manager and confirming the time he has signed on. A similar message is conveyed notifying the dispatch clerk of the time that the patrolman has signed off at the end of a shift.

The detail of the way in which the system works is as follows:

  • (a) NRMA members requiring road service telephone the NRMA headquarters through 80 incoming telephone lines. The calls pass through an Ericsson automatic call distribution system to a road service telephonist.
  • (b) The road service telephonist has before her a visual display unit and wears a headphone.
  • (c) The screen is arranged in a format which allows the road service telephonist to type in the member's name, address, membership number, make of vehicle and location of the stranded vehicle.
  • (d) If there are difficulties encountered in the spelling or communication of the location of the stranded vehicle a spelling aid facility is utilised.
  • (e) The information is then entered by the road service telephonist into the computer by means of a keystroke and the computer allocates the job to the dispatch clerk handling the area where the job is located.
  • (f) The patrol dispatch clerk has two screens on his desk, one showing the jobs to be

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    allocated listed by vehicle registration number and type and the other the patrolmen who are currently on duty. The second screen shows which patrolmen are available.
  • (g) The patrol dispatch clerk's role is to match the next service job in line with the nearest available patrolman and the dispatch clerk pushes a button on his screen which causes the main computer to relay a data message.
  • (h) The data message is transmitted from the headquarters at Villawood to one of four sites in the Sydney metropolitan area at Pennant Hills, Terrey Hills, Bondi and Villawood, by means of a microwave signal. The system is able to select the best available communication path to receive information. The microwave signals are collected on dishes located at the four sites and automatically relayed to the patrolman's vehicle.
  • (i) The patrolman has a transceiver unit located in his vehicle and on his dashboard has a display screen. When the message is transmitted to the terminal in his vehicle he receives a tone to alert him that a message is on his display. A red light also indicates the presence of a message.
  • (j) The patrolman acknowledges the fact that there is a message available to him by pressing a button on his display screen. The text of the message then appears on his screen giving him details of the location of the stranded vehicle and the type of vehicle and registration number.
  • (k) The system has a built-in UBD street directory. Once the location of the vehicle is determined, the computer produces on the patrolman's screen a UBD street directory page number. The street name is therefore spelt correctly and map co-ordinates are depicted in the data transmitted to the patrolman. This eliminates misreading of information and identifies the correct street.
  • (l) When the stranded vehicle is repaired the patrolman presses a pre-programmed button on his display screen which advises headquarters that the vehicle has been repaired.
  • (m) The computer acknowledges the receipt of that message and the patrol dispatch clerk is informed by the computer that the patrolman is available for another job.
  • (n) If the patrolman needs assistance in solving a difficult service problem or if the vehicle is in a condition which requires it to be towed, the patrolman can push another button on his display screen which is a ``request to speak''. That request appears on the visual display unit of the communications clerk until the patrolman is instructed by the communications clerk to go into the ``voice mode''. This signal from the communications clerk is transmitted to the patrolman's display screen and he switches his transceiver from data to voice channel.
  • (o) The patrolman then picks up a hand microphone located in his vehicle and speaks to the communications clerk. If the problem is one which requires technical assistance from the shift manager, the communications clerk, by intercom, contacts the shift manager who then speaks directly to the patrolman. Whilst the voice mode is being used data messages are held until the hand microphone is replaced.
  • (p) In a similar manner the patrolman can speak to the tow desk to provide details of the vehicle and the tow desk then arranges with towing subcontractors to go to the location of the stranded vehicle.
  • (q) As mentioned, the system has a safety aspect. If the patrolman is involved in an accident or exposed to other danger while repairing the vehicle, he can, by the push of a button on his display unit, immediately alert headquarters through the computer that there is an emergency. The dispatch clerk will be informed on his visual display unit of the location of the patrolman's present job so that emergency services can be notified and other patrolmen in the area can attend the scene. Under the old computer system the only way to communicate with headquarters even in a situation of emergency was through the radio which was not practical or convenient in many instances.

Mr S.B. Peatman is the operations manager of the road service headquarters of the NRMA. The account of the way in which the system works which I have just concluded comes from his evidence. Mr Peatman, after saying that the

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system had addressed two of the main deficiencies of an earlier system, said:

``It has virtually eliminated difficulties previously associated with congestion and poor reception on the voice channel by the implementation of data dispatch. The spelling facility has permitted the accurate location of the stranded vehicle and the operating system has enabled the NRMA to carry out its aim of giving assistance to a stranded motorist in the shortest possible time. The operating system materially assists the patrolman to carry out his function of servicing the vehicle by getting him to the site and by allowing him to communicate and receive accurate information in the diagnosis of the problem affecting the stranded vehicle, and in the carrying out of repairs to get the vehicle started or towed to a repair point.''

In the submission of counsel for the applicant, the system consists of machinery, implements, apparatus and materials which are used exclusively or primarily and principally, for business or industrial purposes, in servicing, repairing, or reconditioning motor vehicles; see para. (1)a(i) of item 7 earlier quoted. In the submission of counsel for the Commissioner the system, although appropriately described as ``machinery, implements, apparatus and materials'', is not so used. In particular, counsel submitted that it was not itself used in servicing, repairing or reconditioning motor vehicles and, in any event, it was not for use exclusively or primarily and principally, for business or industrial purposes. The basis for this latter submission was that the NRMA, in providing roadside service, was not carrying on a business or engaging in a business or industrial activity. It was a mutual organisation within the meaning of that expression as used in a number of authorities.

Counsel for the applicant began their submissions with a reference to a number of authorities which they said established that a provision of the kind in question here should receive a benevolent construction and should not be given any narrow or restricted operation. They relied on
F.C. of T. v. Top of the Cross Pty. Ltd. 81 ATC 4563 per Bowen C.J. and Ellicott J. at p. 4571 and
Penrith Rugby League Club Ltd. v. Commr of Land Tax (N.S.W.) 83 ATC 4709 at p. 4714; (1983) 2 N.S.W.L.R. 616 at p. 622 where Hunt J. said that the intention of the provision of the Land Tax Management Act, 1956 (N.S.W.) there under consideration was not to raise revenue, but to relieve certain community groups from the burden of land tax upon the land used and occupied by them. The two authorities are not so much authorities for the proposition that provisions of the kind in question here should receive a benevolent construction, but rather for the proposition that such provisions should not be narrowly construed and should be interpreted to promote the purpose or object underlying the relevant Act of Parliament; see sec. 15AA of the Acts Interpretation Act 1901.

Counsel for the applicant put their case in two alternative ways. First, they said that the NRMA, in providing road service, was engaged in a single complex of activities. Upon this approach, they contended that the first matter to be determined was the nature of the business of the NRMA. Plainly the system was used in the carrying on of that business and was an essential part of the service which the NRMA provided. Counsel's second alternative involved interpreting the word ``in'', where it appears immediately before the commencement of subpara. (a), as if it meant ``in connection with'' or ``ancillary to''. Counsel drew attention to the words of para. (1) which are in parentheses and which exclude from the exemption road vehicles of the kind ordinarily used for the transport of persons or the transport or delivery of goods, towing trucks or salvage vehicles, or parts of such vehicles. They said that some of these vehicles were used for a purpose which, in one sense, was ancillary or incidental to the servicing, repairing or reconditioning of motor vehicles. If the paragraph had the narrow meaning for which counsel for the Commissioner contended, it would not have been necessary specifically to exclude such vehicles.

Counsel referred to the decision of a divisional court in Kingsland v. Hayben (1904) 90 L.T. 449 where the word ``in'', in the legislation there in question, was construed as meaning ``in reference to'' or ``in connection with''. To a similar effect is the judgment of Yeldham J. in
Pioneer Concrete (N.S.W.) Pty. Ltd. v. F.C. of T. 86 ATC 4435 where his Honour was concerned with the construction of subpara. (c) of item 7(1) in Sch. 3 to the Act. The question was whether the concrete mixer in

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question was apparatus ``for use exclusively or primarily and principally... in... constructing... buildings''. His Honour said (p. 4441):

``In my opinion the proper inquiry is whether the mixer is an apparatus used principally for industrial purposes in the course of the construction of a building. That question I would answer in the affirmative. The situation is precisely the same as if a concrete mixer had been used on site for the preparation of concrete for use in the building being erected upon that site. The critical inquiry is into the characteristic of the equipment. Here it is adapted to the construction of a building and that is the sole use to which it is put. In my opinion the word `in' should be construed as meaning `in the course of' or `in connection with' - see
Amalgamated Zinc (De Bavay's) Ltd. v. F.C. of T. (1935) 54 C.L.R. 295 at p. 309.''

Substantial reliance was placed by counsel for the applicant upon the decisions of this Court, at first instance and on appeal, in
Reynolds Australia Alumina Ltd. v. F.C. of T. 87 ATC 4305 and 5018. The provision there in question was another item of the Act which provided for an exemption from tax in the case of the sale of machinery, implements and apparatus for use in the mining industry, in carrying out mining operations or in the treatment of the products of those operations. The machinery in question consisted of an overland conveyor for bauxite which transported bauxite from the mine in question to a refinery. Northrop J. said (p. 4321) that machinery for use in the mining industry in the treatment of the products of mining operations was not limited to machinery which was used in the direct treatment of such products. He said that the conveyor was used in the mining industry in the treatment of bauxite. His Honour did not consider whether the word ``in'' meant ``in connection with''. That was not how the case was put to him.

The appeal against the judgment of Northrop J. was dismissed by majority. In the course of his judgment Beaumont J. said (p. 5026):

``In my opinion, the location of the conveyor facility on the mine site at its commencement point together with its role as part of a single complex of operations occurring between the surge pile at the mine site and the blended stock piles at the refinery site suggest that there is only one relevant activity being carried on; and that this activity should be viewed as operations pertaining to mining rather than the independent activity of the transportation of minerals. Put differently, to fragment the respondents' activities in the way suggested by the Commissioner leads to arbitrary and therefore artificial distinctions being drawn within what is acknowledged to be an integrated activity. The preferable view is that the conveyor facility is so closely associated with and ancillary to the respondents' mining activities as to be part of those activities. It is an operation which pertains to mining.''

It is to be observed that the phrase used by counsel for the applicant in their submissions, ``single complex of activities'', comes from this passage in the judgment of Beaumont J.

In the course of his judgment, Burchett J., who agreed in the judgment of Beaumont J., said (p. 5031):

``In my opinion, the beneficial purpose of the legislation with which this appeal is concerned is as apparent as was that of Div. 10 in the cases to which I have referred. But this purpose would be stultified if the Court unrealistically refused to recognise change in the mining industry, and confined the exemption to operations conducted in a manner, once familiar or even invariable, which the progress of the industry has now (in large measure) left behind. The extension of the site of an operation, linking activities by conveyors or pipelines, in order to make the best use of available advantages and do the least damage to the ecology of the area, are everyday features of new mining ventures; while novel or improved techniques and practices are introduced from time to time to open up to exploitation mineral deposits which were previously worthless.

When the Act speaks of `mining operations', it uses an elastic expression the full meaning of which emerges from its application in a particular context; it is not frozen into an immobility that cannot accommodate changes in technology.''

In their submission counsel for the Commissioner said that the legislature had

ATC 5170

drawn a clear distinction between the word ``in'' used in a context such as this and the phrase, ``in connection with''. Counsel pointed to instances where the phrase, ``in, or in connexion with'' as distinct from the word ``in'' had been used. These are to be found in items 77(1), 78A(1), and 113A(1) of Sch. 1. They also referred to item 52(2) where the expression ``in connexion with'' is used alone. It followed, so counsel said, that the legislature, when it used the word ``in'', did not intend it to have the more extensive meaning that it would have if it were construed to mean ``in connection with''. The system here in question did not fall within the exemption because in no sense could it be said that it was machinery or apparatus used in the servicing, repairing or apparatus used in the servicing, repairing or reconditioning of motor vehicles. The closest that it came to such a use was when it was used by the patrolmen to speak to supervisors to obtain advice. But this was insufficient because of the words, ``for use exclusively or primarily and principally''. Counsel referred to dictionary meanings of the words ``servicing'', ``repairing'' and ``reconditioning''. They said that the words in parentheses did not assist the applicant's case because they applied equally to the other categories dealt with in subitem (1). Finally, they said that the ``single complex of activities'' test was not helpful and could be misleading in a case such as this which was very different from the Reynolds Alumina case which was concerned with well-understood expressions used in relation to mining.

Counsel submitted that,in any event, the use was not for business or industrial purpose. They said that the use here could not be for an industrial purpose. For it to be a business purpose the NRMA had to be carrying on something in the nature of a trade. Here service was provided to members free of charge so that there was no trade. The membership fee entitled members to service irrespective of the amount of use which they made of it. They also referred to the fact that the NRMA was a company limited by guarantee, was a non-profit company (see note 1(d) to the accounts [not reproduced]) and was a ``mutual company''. They relied on
Fletcher v. Income Tax Commissioner (1971) 3 All E.R. 1185 at p. 1189,
State Authorities Superannuation Board (N.S.W.) v. F.C. of T. (1988) 85 A.L.R. 125 at pp. 139 and 142 and
Royal Automobile Club of Victoria v. F.C. of T. 73 ATC 4153 at p. 4156 et seq. They said that that which attracts mutuality principles is not in the nature of a trade.

In reply to this submission counsel for the applicant said that ``business'' was used in contradistinction to pleasure; cf. sec. 51 of the Income Tax Assessment Act and items 107 and 119 of Sch. 1. Item 107 applies in relation to exhibition copies of motion picture films but not including exhibition copies of films ``for the private, domestic or personal use of the person by or for whom they are produced''. Item 119 applies to ships and other vessels, but not including those to be used exclusively or principally for purposes of pleasure, sport or recreation either by the owner thereof or by any other person or persons. Counsel also said that it would be incongruous to deny the benefit of the exemption to a body such as the NRMA and give it to commercial organisations.

The task is to apply the relevant words of the item to the facts of the case. In summary, the CAD system provides the NRMA and its customers with a facility which substantially streamlines the handling of service calls and makes the operation of providing service to motor vehicles very much more efficient than was formerly the case. An aspect of it is the ability which the patrolman has to speak, if necessary, to a more experienced mechanic for the purpose of obtaining advice in relation to a particular problem. That is not the prime use to which the system is put but it is an important use. In those circumstances is it correct to say, as counsel for the applicant contend, that the totality of the various components which make up the system comprises machinery, implements, apparatus and materials for use exclusively or primarily and principally in servicing, repairing or reconditioning motor vehicles I have left out of account the words ``for business or industrial purposes'' because they are the subject of the Commissioner's second submission with which I shall deal separately.

Counsel for the applicant, in their two-pronged approach, put their case as they did upon the basis of cases decided on different facts and in relation to different items or a different part of the item in question here. Thus, on the basis of what was said by Beaumont J. in the Reynolds Alumina case, they contended that the equipment in question was

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part of a single complex of operations or activities, the entirety of which was used in the servicing, if not the repairing or reconditioning, of motor vehicles. The alternate argument was based on the proposition that, in the context in which it appears in item 7, the word ``in'' should be construed as meaning or including ``in reference to'' or ``in connection with''. The authorities upon which counsel relied disclose that that is a meaning which the word ``in'' may sometimes have.

For my part, I would prefer not to be placed in a strait-jacket made by reference to judicial dicta based upon different factual situations and different items of the Schedules to the Act. In my opinion the question whether particular articles fall within an item, such as item 7 of Sch. 3, must involve questions of fact and degree as well, of course, as the question of law which arises because of the need to construe the relevant words of the statute.

The contemplation of other examples is not always of assistance. But I think it is helpful to remind oneself that the carrying out of any task involving the use of equipment will necessitate the use by the person doing the task of equipment directly used for the task at hand and other equipment which is used incidentally or which it is necessary to use before one can make use of the equipment which is to be directly used. There is no evidence of it but it would be necessary, one would think, for a patrolman to have a service vehicle which was adequately equipped not only with tools and materials essential for him to do his job, but also with other articles. So it might be asked, is his pad and pencil in which he notes the location of a job used for servicing the vehicle to which he is directed? What of the various shelves, drawers, compartments and boxes which are in the vehicle and in which tools and other equipment of various kinds are stored for use in the servicing of vehicles? What of written material such as instruction books, manuals and the like? If one leaves the patrolman and his vehicle, a host of ancillary equipment not forming part of the CAD system has its place in the servicing and operation which the NRMA undertakes. To speculate about the nature of that equipment is not helpful. But plainly there must be equipment of this kind in offices, service centres, dispatch centres and other places as well. If the applicant's first submission is to be accepted, each of these items must itself fall within item 7 because each is part, if not of the single complex of activities or operations which the NRMA conducts, then part of the totality of the equipment which may fairly be said to be used in connection with the servicing of vehicles.

It seems to me that the contest is between a view which says that all the items to which I have referred and the system which is in question here are used - it matters not whether directly or indirectly - in the servicing of vehicles and a view which says none are so used; rather they are used not in, but as an adjunct to, that servicing.

One sees, from the Pioneer Concrete case decided by Yeldham J. and the Reynolds Alumina case decided in this Court, how courts have approached the problem of equipment claimed to be used in constructing buildings or in mining operations. Both the concrete mixer in the Pioneer Concrete case and the conveyor in the Reynolds Alumina case seemed to me to have involved a much closer connection with the construction of buildings in the one case and mining operations in the other than the system in question here. Yeldham J. reached his conclusion by giving to the word ``in'' a meaning which included ``in the course of'' or ``in connection with''. The Court in the Reynolds Alumina case did not approach the matter in that way, but decided the matter on the basis that there was a single complex of activities and that the expression ``mining operations'' was an elastic expression, the full meaning of which emerged from its application in a particular context.

To my mind it is not critical to determine what is the preferable approach in the present case. To me the better question is whether, as a matter of the ordinary use of language, it is right to say that the components which go to make up the system here, when viewed in their totality, are used in the servicing of motor vehicles. One has to make a judgment about the matter.

I accept the submissions made by counsel for the applicant at the outset that one needs to have very much in mind the purpose and object of the legislation. That having been said, however, one is not much further forward because one still has to apply the words used by the legislature of the facts of the case. Perhaps the most that can be said is that one would not

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give to the words of the item any narrow or restricted operation.

When one thinks of what is involved in the servicing of vehicles, one immediately thinks of tools, pliers and spanners and the like, battery leads, tyre jacks and, these days, perhaps some electronic equipment used to diagnose faults in vehicles which have a great deal of electronic equipment. That is the sort of equipment which one would normally find in a motor service garage carrying out ordinary servicing or repair work. The question is whether the line should be drawn at that point or whether one takes a broad view and concludes that a variety of other equipment used as an adjunct to equipment of the kind I have mentioned is also used in the servicing of motor vehicles. To bring the matter closer to the case in question, what view does one take about the telephone equipment used by customers and the repair establishment to make arrangements for customers of the garage to bring in their vehicles for service or to order spare parts or other components? What of the typewriters and word processors used by persons employer in the service area to record jobs to be allocated and work done, to make up accounts and to record payments? What of the office furniture which is in use or the system used to notify mechanics of the next job to be done or amplifying equipment in the workshop over which announcements are made relevant to the repair and servicing of a vehicle? All this equipment is, in one sense, used in, or in connection with, the servicing and repair of vehicles. It would not be an inappropriate use of language to say that they were. But did the legislature intend the language used in the relevant item to be of such wide import?

In reaching my conclusion, I have obtained only indirect help from the authorities which have been cited. That is not because I have any disagreement with what was said by any of the Judges who decided them. It is because the words used by them were used in relation to quite different factual situations. In the result I have reached the conclusion that the legislature did not intend to afford exemption to every conceivable piece of equipment which might be said to be used in relation to the servicing and repair to motor vehicles. I think its intention was to confine the exemption to articles or equipment which were used, if not directly, then proximately to the actual operation of service or repair. The line is not one which can be drawn with certainty. Each case will depend upon its own facts.

Upon the test which I have formulated, I think the correct view is that the components which make up the system here in question, are not entitled to the benefit of the exemption. They are not directly used in the servicing operation, and, although they are an important adjunct to it, they are not so closely connected with it as to be aptly described as being used in the servicing of vehicles.

I should say something about the words in parentheses in item 7(1) which exclude from the benefit of the exemption road vehicles of the kind ordinarily used for the transport of persons or goods, towing trucks or salvage vehicles or parts for those various vehicles. I think those words assist the applicant's case rather than that of the Commissioner. If the words in question were not to be given a wide meaning, it would have been unnecessary to exclude the various types of vehicles which are mentioned. This in turn tends to persuade one that anything not excluded and which may reasonably be said to be something used in servicing or repairing vehicles is entitled to the benefit of the exemption. I have given that consideration due weight but I do not think that it is conclusive. One must still reach a conclusion on the question whether the articles in question are used in the servicing or repairing of motor vehicles.

In the result I have decided that the system, or rather its various components, is not entitled to the exemption with the consequence that the assessment should be confirmed. My conclusion in that respect makes it unnecessary to deal with the Commissioner's second submission that the system was not used ``for business or industrial purposes'', but I propose to express a view about it. The cases to which I was referred in argument raise a question whether the use in question was for a business purpose. What the Commissioner relies upon is a principle long established in the field of income tax law, known as the principle of mutuality, which may in some circumstances relieve wholly or in part certain associations from liability to tax. In
Social Credit Savings & Loans Society Ltd. v. F.C. of T. 71 ATC 4232 at p. 4238; (1971) 125 C.L.R. 560 at pp. 570-571 Gibbs J. (as he then was) said:

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``In England it has been held that where a number of people associated together for a common purpose, have contributed to a common fund in which all the contributors are interested, the surplus of their contributions remaining after the fund has been applied to the common purpose `is in essence a return of their own moneys which they have overpaid and is not profit' (
Colonial Mutual Life Assurance Society Limited v. F.C. of T. (1946) 73 C.L.R. 604 at pp. 618-9). This principle has found particular application in the cases of mutual funds and members' clubs. It may apply notwithstanding that the people thus associated have been incorporated, for the corporation is treated `as a mere entity for the convenience of the members and policy holders, in other words, as an instrument obedient to their mandate (
English and Scottish Joint Co-operative Wholesale Society Limited v. Commissioner of Agricultural Income-Tax, Assam (1948) A.C. 405 at p. 419). Since the members of an association may at the same time engage in dealings that are mutual and business that is not, it may be necessary, and is permissible, to sever a fund which consists of receipts from mutual dealings as well as other receipts...''

Gibbs J. rejected a submission made on behalf of the Commissioner that the principle had no application in Australia. He noted that it had been rendered inapplicable to certain cases by specific provisions of the Income Tax Assessment Act 1936, but he said that where it was not excluded it would, in appropriate circumstances, lead to the conclusion that the surplus arising from a transaction within the principle could not be treated as income.

In my opinion the mutuality principle is not of assistance in determining whether, for the purposes of item 7 of Sch. 3 of the Act, articles otherwise exempted by that item are for use for business or industrial purposes. In my opinion both the words ``business'' and ``industrial'' are words of wide import and should not be narrowly construed. On the other hand, I do not think that the reference by counsel for the applicant to sec. 51 of the Income Tax Assessment Act is of any more assistance. The Act in question here and the Assessment Act are not statues in pari materia and the reference to sec. 51 is accordingly not helpful.

Numerous authorities could be cited for the proposition that the NRMA, in carrying on the activities which it does, including its road service operation, is carrying on a business. I think there is also much to be said for the view that it is engaged in an industry. That that is a term of wide import is established in a number of authorities. I refer only to
Jumbunna Coal Mine, N.L. v. Victorian Coal Miners' Association (1908) 6 C.L.R. 309 per Isaacs J. at p. 370 and
Re Lee; Ex parte Harper (1986) 160 C.L.R. 430 per Mason J. (as he then was) and Brennan and Deane JJ. at pp. 448 and 454. In my opinion the system in question here was acquired and is used for both business and industrial purposes. Accordingly, I reject the Commissioner's submission based on that matter.

In the result the assessment made by the Commissioner is confirmed.

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