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BIGA NOMINEES PTY LIMITED v FC of T

Judges:
Southwell J

Court:
Supreme Court of Victoria

Judgment date: Judgment handed down 5 April 1991

Southwell J

The plaintiff seeks declarations as to its liability to pay sales tax upon a forklift vehicle it uses in connection with its freight business.

The Sales Tax Assessment Act (No. 1) 1930 (Commonwealth) by s. 20 provides that sales tax is not payable where goods are exempted by the Sales Tax (Exemptions and Classifications) Act 1935, which by s. 5 exempts goods listed in the First Schedule; here relevant is Item 119B which provides:

``ITEM 119B Goods for use (whether as goods or in some other form, but not as goods for sale) by a person exclusively in, or exclusively in connection with, the establishment, operation or maintenance by that person of a railway providing, primarily and principally for use by the public, a

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service for that transport of persons or goods (other than a service provided for, or in connection with, purposes of recreation, pleasure or amusement)''

The plaintiff's case is that its forklift is ``used exclusively... in connection with... the operation or maintenance by (it) of a railway...'' within the meaning of Item 119B.

The standing of the plaintiff to sue was established by a judgment of the Full Court of this Court in
F.C. of T. v. Biga Nominees Pty. Ltd. 88 ATC 4270; [1988] V.R. 1006.

The facts

In 1978, the plaintiff, under the business name ``F.C.L. Interstate Transport Services'' set up business in Sydney as a ``container forwarder and receiver''. It commenced operations at the Sydney Haulage Terminal, moved into larger accommodation in 1981, and in 1982 moved to the adjacent Cooks River Goods Yard (``the S.R.A. terminal''). In the expectation of a grant of a lease by the New South Wales State Rail Authority (``S.R.A.'') it built a warehouse and office complex on part of the S.R.A. terminal. The S.R.A. terminal extends over about 20 acres, some of which is occupied by other freight businesses. By correspondence on various dates up to September 1982 the parties entered into an agreement for a lease, whereby a triangular-shaped allotment of approximately two acres would be leased by the S.R.A. to the plaintiff for a term of 25 years; a single set of rail tracks (``the siding'') was installed on the hypotenuse (which runs approximately east-west), upon land extending two metres each side, this land being subject to a monthly tenancy. (I shall refer to the whole of the leased land as ``the plaintiff's terminal''.) The reason for the different term was that the S.R.A. wished to install a heavy duty concrete pad, where particularly heavy loads could safely be handled, and the S.R.A. wished to make occasional use of that facility. In fact, it has not been so used for more than three years; when it was used the S.R.A. gave to the plaintiff one week's notice of its requirement.

The formal lease was not executed until May 1984, long after the plaintiff moved into occupation. In fact, the lessee was named as Biga Nominees (N.S.W.) Pty. Ltd., a company associated with the plaintiff and controlled by the same persons. The lessee is not a trading company and has no bank account of its own. The plaintiff's terminal has at all times been under the control of the plaintiff, which pays the rent. It appears that the lessee company was named for the purpose of insulating the assets of the plaintiff should hard times befall it. In this action, counsel for the defendant have taken no point in respect to this matter and accordingly I proceed as if the plaintiff is and has been the lessee.

The siding is about 155 metres in length; the innermost (eastern) end of it is some metres east of the eastern boundary of the plaintiff's terminal, that is to say, the end is outside the plaintiff's terminal; there is a buffer at the end to prevent wagons running beyond the line; there are no switches or points on the siding which, well beyond the western border of the plaintiff's terminal, joins onto other tracks of the S.R.A.

By further particulars of the Statement of Claim the plaintiff pleads that ``the railway forms part of the Australian railway network''. But it is common ground that it joins with the S.R.A. network in the S.R.A. terminal.

The plaintiff contributed $50,000 towards the cost of construction of the siding and is responsible for two-thirds of the maintenance cost of the plaintiff's terminal. In fact, the only maintenance which has been necessary is cleaning, which is performed by the plaintiff.

Apart from the right of the S.R.A. to use the heavy duty pad, the plaintiff has sole control over its terminal, as if it were its own property. It can move rail wagons as it pleases, so long as it does not damage them.

The subject forklift is a Hyster 650 (``the Hyster''), a large machine having a lifting capacity of 30 tons. In December 1985 it was purchased for $237,000 by a finance company and was leased to the plaintiff which has subsequently purchased it. The amount of sales tax (if payable) would be approximately $46,000.

The only special equipment fitted to the Hyster is a lifting extension device - a ``top lift''. It was not fitted with any device designed to facilitate its use as a pushing mechanism. It is not equipped with any device which enables it to tow rail wagons.

The Hyster was obtained by the plaintiff because of the rapid expansion of its business, and to obviate the risk of serious interference

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with its operations should there be a breakdown of its other large forklifts (there are three of 30 ton capacity). It was known to the plaintiff's executives that it was probable that the Hyster would occasionally be used to assist the S.R.A. when the latter's gantry crane in the S.R.A. terminal broke down, which frequently occurs. It is used for this purpose about once or twice per week. About every two months there is a serious breakdown, and one of the other large forklifts of the plaintiff is used as a substitute for perhaps one or two days. For operational reasons, the Hyster (which is the best of the three) is not sent to assist S.R.A. when more than one or two lifts, occupying ten minutes or so, are necessary.

The plaintiff's witnesses ``estimate'' that of the total work performed by the three large forklifts, only about one per cent would be spent on S.R.A. work; I emphasise ``estimate'' for the reason that, as Mr. Maday, the plaintiff's assistant manager, readily conceded, the estimate is based more on a ``gut feeling'' than anything else. There is no documentary evidence which could throw light on the extent of the use of the Hyster on S.R.A. work; however no contradictory evidence was called by the defendant (however there is no reason to believe that the defendant had any information which could have assisted the Court), and I see no reason not to accept that evidence.

About once or twice per month one of the large forklifts would be used to assist a neighbour cartage contractor. The evidence does not disclose whether the Hyster was usually chosen, but since it was the preferred machine, the probability is that it was not used any less than the other two forklifts.

In the usual course of its business, the plaintiff habitually arranges for a sub-contractor truck operator to attend the plaintiff's terminal; a container suitable for the task in hand is loaded by one of the plaintiff's forklifts onto the motor truck; the container is taken to the client's premises where it is filled with goods; the truck brings the container back to the plaintiff's terminal; finally a forklift unloads the container and either temporarily stores it or places it on a railway wagon.

There has for long been a standing arrangement between the S.R.A. and the plaintiff (between whom there has always been an excellent relationship) that a rake of nine wagons will be pushed by an S.R.A. locomotive onto the siding to be ready for loading early each morning. That rake is delivered during the night, at a time convenient to the S.R.A.

Any further deliveries of wagons are discussed each morning during a visit by the S.R.A. assistant station master to the plaintiff's office; there may be one or two further rakes delivered on any one day.

The plaintiff owns no locomotive and although it leases a small number of wagons at its place of business in South Australia, they are not used at the plaintiff's terminal; the wagons making up the rakes are owned by the various State rail authorities. The wagons are 40 feet or 60 feet in tray length; they are equipped with easily managed fixing devices to secure the containers, which are 20 feet, 40 feet or 60 feet in length. A forklift lowers the containers onto the wagons, and since they must be accurately positioned so that fixing pins are effective, the forklift drivers must possess the skill and judgment necessary for the efficient use of the forklift; it is akin to that skill which is required for the efficient use of such machinery as earth moving machinery, and cranes. The drivers also act as yardmen, carrying out a variety of tasks at the plaintiff's terminal, including cleaning containers, positioning dunnage, checking pallet loads, and refrigerating loads by means of CO2 injections. All are highly competent employees.

The plaintiff labels each container, stating, inter alia, its destination. When the wagons are loaded and the containers secured, the plaintiff notifies the S.R.A., which at its convenience sends a locomotive driven by an S.R.A. employee to haul the wagons away. If there is a break in the wagons it is closed by use of the locomotive, under the guidance of a shunter employed by the S.R.A. The plaintiff asserts no control over the manner in which this operation is carried out.

The S.R.A. charges the plaintiff a ``linehaul'' fee (a fee for hauling the wagon from the siding to its destination). The plaintiff has no further control of the train, which departs on its journey in accordance with a timetable determined by the S.R.A.

The plaintiff in turn charges its client a fee, which will include (although not state) the linehaul fee charged by the S.R.A.

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The roadway into the plaintiff's terminal is on the north side of the siding, while the buildings are on the south side. It is necessary, accordingly, from time to time to ``break'' the rake; this is effected by a forklift - two wagons are uncoupled by a yardman and then the outer end of the forklift spreader is positioned against the end of the wagon, and the forklift pushes that wagon and any others ahead of it; hand brakes on the wagons are used to stop them. When the rake is loaded, ready for removal, the S.R.A. locomotive is used to close the break, and the S.R.A. shunter couples the pneumatic brake hoses.

The plaintiff also operates as a loading contractor for shipping companies; trucks or train wagons are brought to the siding, simply for the purpose of loading or unloading by means of a forklift; the plaintiff charges for each lift, the amount varying with the size and weight of the lift. The plaintiff is regularly engaged by shipping companies to collect empty containers from container parks for delivery interstate.

The plaintiff also operates a ``pack-it-yourself'' service, under which a specially designed trailer-container is delivered to a private client, for say, furniture removal interstate. The client packs the container, which is collected by the plaintiff and loaded onto a wagon at its terminal. This service is used three or four times per week.

The plaintiff carries out no maintenance or repairs on the wagons, but must take notice if a wagon is delivered to the terminal displaying a ``grease by'' date which has passed, and must follow procedures laid down by the S.R.A.

If the S.R.A. becomes aware that some maintenance or repair of a wagon is required, it will affix a green or red card to the wagon, but while that may affect the question of the load to be placed upon the wagon by the plaintiff, the latter is not authorised to effect repairs.

To summarise the uses to which the subject forklift is used:

  • - it is mostly used for handling full containers, onto or off wagons;
  • - on an average of about twice per week, it is used to push wagons, either to create a break for vehicular traffic, or to reposition the end wagon, which on occasions is not accessible to the forklift;
  • - once or twice per week, it substitutes for the S.R.A. gantry, for a standard fee for each lift. Overall, this would constitute less than one per cent of its total work.

The plaintiff advertises its services in the Yellow Pages and elsewhere as, inter alia, an interstate ``container railway forwarder''. It has steadily built up its clientele, which numbered over 150 in 1989. ``F.C.L.'' is the abbreviation of ``full container load'', and, as the name implies, most clients use the whole container but there are some containers used for mixed loads. The plaintiff has on one occasion accepted from a member of the public a suitcase for carriage to Perth (to which it operates once each week). There are two roads from which access may be gained to the terminal, each requiring a vehicle to traverse parts of the S.R.A. terminal. A member of the public having no knowledge of the area would require guidance to find his way to the terminal and for safety reasons ``unauthorised'' persons are discouraged from entering the S.R.A. terminal.

Counsel for the plaintiff were at pains to demonstrate that the plaintiff's operations were both complex and difficult. The terminal supervisor was required to be conscious of, inter alia:

  • - the carrying capacity of the wagons and containers;
  • - the weight limits applicable to the proposed route, taking into account tunnels and bridges;
  • - the necessity safely to position the load, with the weight forward on the wagon, but laterally as centrally as possible (if the wagon tilts at rest, it must not be sent out);
  • - the regulations relating to the carriage of perishable goods and dangerous goods;
  • - the fact that some types of wagons are banned in some States, particularly Victoria.

I would acknowledge that the successful conduct of the plaintiff's business requires an intimate knowledge of rail transport, and that considerable experience is required before proficiency is attained. However, the various requirements, if they are not readily remembered, are set out in what appears to me to be readily understandable form.

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A competent and experienced supervisor or manager would not, I think, be overtaxed by the complexity or difficulty of the task, but only by an excessive workload, which would become particularly oppressive in an industry where time is usually of the essence.

In any event, I remain unpersuaded that the fact that the successful operation of the plaintiff's business, which to use one of its own descriptions, is that of a ``freight (or container) railway forwarder or receiver'', requires skill and experience, assists in the resolution of the question whether the plaintiff is the ``operator of a railway''.

The issues

An examination of the words of Item 119 reveals that there are no less than seven elements which must be shown to exist to entitle the plaintiff to the benefit of the exemption. The matters here in issue are whether:

  • - the plaintiff operates or maintains a railway;
  • - the Hyster is used ``exclusively'' as is required;
  • - the plaintiff's railway provides a service for the transport of goods;
  • - that service is primarily or principally for use by the public.

The ``operation of a railway''

I shall deal first with the two questions involved in the issue of whether the plaintiff operates or maintains a railway. The plaintiff's case is that the plaintiff does both; that the siding is a ``railway'' or ``part of a railway'' and that the use of that siding, by the loading and unloading of wagons, and by the movement of the wagons to create a break between wagons, constitutes the ``operation'' of that railway. It is then said that the use of the Hyster as a substitute for the S.R.A. gantry crane when the latter is inoperative, constitutes ``maintenance'' of the S.R.A. railway. It is conceded by Mr. Batt Q.C., who appeared with Mr. Kendall for the defendant, that ``maintenance of a railway'' within the meaning of Item 119B is not confined to a railway operated by the plaintiff; that is to say, if the plaintiff operates its railway, and maintains the S.R.A. railway, then this element would be proven. However, as will be seen, Mr. Batt contended that neither branch of this element had been made out.

The plaintiff's submissions

I turn now to the submissions of Mr. Charles Q.C., who appeared with Mr. Rosenbaum for the plaintiff. It was first submitted that an examination of the second reading speech of Mr. Harold Holt on 15 August 1961 (Hansard p. 79), an explanatory memorandum circulated under the authority of the Treasurer and tabled to the Commonwealth Parliament, and two rulings emanating from the office of the Commissioner of Taxation, revealed a legislative intention to support industries which were engaged in public transport services. Reference was also made dicta which state that exemptions of a like nature to those here under consideration should be construed liberally. (See the references by Gray, J. in
I.C.I. Australia Operations Pty. Ltd. v. D.F.C. of T. 87 ATC 5110 at p. 5113 (``the I.C.I. case'').)

The Acts Interpretation Act 1901 (Commonwealth) (``the Interpretation Act'') by s. 15AA, requires the Court to prefer a construction which would promote the purpose or object underlying the (Sales Tax) Act. As Hope, J.A. pointed out in
F.C. of T. v. Kentucky Fried Chicken Pty. Ltd. & Anor 88 ATC 4363 at p. 4372; (1988) 12 N.S.W.L.R. 643 at p. 654, the ``sale(s) tax legislation is not intended to stultify trade and commerce but is intended to produce revenue for the government from trade and commerce''.

Section 15AB of the Interpretation Act provides that consideration may be given to certain other:

``material... capable of assisting in the ascertainment of the meaning of the provision... to confirm that the meaning... is the ordinary meaning conveyed by the text of the provision... or... to determine the meaning... when... the provision is ambiguous or obscure; or... the ordinary meaning... leads to a result that is manifestly absurd or is unreasonable.''

Section 15AB(2) is an extending provision which lists the material which may be considered; that list includes an ``explanatory memorandum'' such as is referred to above, and a second reading speech of the Minister. It does not refer to tax rulings; that omission, however, does not necessarily lead to the

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conclusion that such rulings may not be relied upon.

The second reading speech was in respect to the Sales Tax (Exemptions and Classifications) Bill (No. 2) 1961; Mr. Holt said that the ``exemptions will cover goods for use exclusively in the establishment operation or maintenance of privately owned railways which provide transport services for the use of the public''. Then after referring to exemptions for the purchasers of passenger buses, Mr. Holt continued:

``The proposed exemptions in favour of private operators who conduct transport services for the public place them on a comparable footing (with State-owned railways and buses).''

As will be seen, I am of the view that the plaintiff provides a service for the public, although it does not itself transport goods. At first sight it would seem that the plaintiff can fairly be termed a ``private operator who conducts transport services for the public''. While a Minister's second reading speech ought not to be subjected to microscopic examination, it seems tolerably clear that the reference to ``private operators'' (so far as he then refers to railway operators) is a reference to those who operate ``privately owned railways'', to quote his earlier words.

I think that the Minister had in mind a privately owned railway system akin to a system operated by the States, albeit that they might be on a very much smaller scale. I do not in the end find support for the plaintiff's case in that speech.

The explanatory memorandum tabled in Parliament said of Item 119B:

``Schedule clause 31: Item 119B

Item 119B at present provides exemption for goods for use by a person exclusively in, or exclusively in connexion with, the establishment, operation or maintenance by that person of a railway providing, for use by the public, a service for the transport of persons or goods. The exemption was introduced in 1961 and meant that a number of privately owned railways which operated in conjunction with tax-exempt State railways to provide normal public transport services were able to attract exemption. Since then, extensive railway facilities have been established by mining companies which operate more or less exclusively for the benefit of the companies concerned. Some of these railways operate very limited public transport services and because of this they have qualified for exemption. Others have not operated any public transport services and been subject to tax. The exemption was not intended to benefit railways not forming part of the ordinary public transport system.

It is proposed to correct this position by amending item 119B so that exemption will apply to only those railways which operate a service primarily and principally for use by the public. This will restore the exemption to its original intention. The amendment will also ensure that exemption does not extend to miniature railways and other similar railways installed in parks, amusement grounds, etc. for the purpose of recreation, pleasure or amusement.''

Mr. Charles relied upon this as showing that the exemption was indeed intended to benefit railways which did form part of the ordinary public transport system, it being common ground that the siding formed part of that system.

Yet here again, the references to ``privately owned railways which operated in conjunction with tax-exempt State railways'' and to ``extensive railway services'' seem to me to suggest that Parliament had in mind much more than a short single track siding which a private person uses for loading, as a road transport forwarder would use a loading bay.

On the question whether the Court may look for guidance to the tax rulings Mr. Charles referred to the I.C.I. case where the Court was asked to rely upon a submission to Cabinet by the Commissioner of Taxation, an explanatory memorandum, and a memorandum sent by the Taxation Office to Branch Office Deputy Commissioners. Gray, J. (with whom Kaye, J. agreed) referred (at p. 5113) to the first two documents as providing ``strong support'' for the construction he preferred. However, as Brooking, J. pointed out (at p. 5116), the respondent in that case conceded that if the language of the exemption Item was ambiguous, regard may be had to those documents; Brooking, J. observed:

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``I think we think we should act on this concession without considering the matters for ourselves.''

In the present case Mr. Batt (who addressed first) referred to the tax rulings, but did not concede that they constituted extrinsic material within the meaning of s. 15AB. Later, he expressly declined to make a concession such as was made in the I.C.I. case.

Mr. Charles submitted that since the rulings emanated from the public office charged with the administration of the tax laws, and since most proposals for amendment (as the Court should infer) emanate from that office, then the Court should further infer that ``the Deputy Commissioner knows what the intention of the tax amendment was...''.

It was further submitted that in the same way as the Court may look at dictionaries to establish the ordinary meaning of words, so the Court should look at rulings ``in the sense that the Commissioner is, in effect, another dictionary''.

Mr. Batt in his reply submitted that s. 15AB had no application for the reason that there was no ambiguity in the language of Item 119B; that there was no case where the rulings had been used by the Court as an aid to construction, and far from being contemporaneous with amendments, they were issued long after them.

Item 119B was introduced in 1961, and was amended in 1981. The tax rulings here under discussion were issued in 1983 and 1986. The Court is accordingly being asked to look at rulings given long after the making of the amendment; and the Court is also asked to regard the meaning given by one party to litigation as tantamount to a dictionary meaning.

There may well be an occasion where from all the circumstances, including the terminology and the date of a tax ruling, a Court might be prepared to regard that ruling as being one which can fairly and safely be relied upon as throwing light on the question of Parliament's intention in enacting amendments to tax legislation. In my opinion those circumstances do not here exist. Accordingly, the Court should disregard the rulings.

However, I should add that on the question presently under discussion ``does the plaintiff operate a railway'', my opinion is that reference to the rulings would not advance the plaintiff's case. In deference to the submissions of counsel, I should state briefly my reasons for that opinion.

The first ruling (No. 2033) dealt with the requirement of Item 119B that the railway should provide a service for ``the use of the public'', and is accordingly not directly concerned with the question whether the plaintiff operates a railway. However, it seems to me to be of some relevance.

The ruling (8 June 1983) was:

``Preamble

A railway operator transported goods for two customers, one at arm's length, the other an associated enterprise. The volume of goods transported for the two customers was broadly equal although the charges paid by the arm's length customer were greater. The operation of the railway was subject to a statutory requirement that it should be available for use by the public.

Ruling

2. As from 19 August 1981 item 119B requires that a railway should provide a service primarily and principally for use by the public. Prior to that date the item, as it was then expressed, had the unintended effect of exempting from sales tax various private railway systems in Australia. This had come about because the various private systems provided limited services for the public, sufficient to bring them within the terms of the exemption item.

3. The insertion of the requirement in item 119B that the service be primarily and principally for use by the public means that exemption will be available now only where a railway service is provided for the use of and is used by the public generally or by a significant section of the public. The provision of a railway service in circumstances where it can be used only by a limited section of the public will not attract the exemption given by item 119B.''

In my view the present relevance of that ruling is a reference to ``various private (railway) systems''. I think the Commissioner in using the word ``system'' had in mind much more than a short single track siding.

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Mr. Charles placed more reliance upon Ruling No. 2280 of 23 September 1986 which was in these terms:

``Preamble

Item 119B in the First Schedule to the Sales Tax (Exemptions and Classifications) Act provides exemption for goods for use (whether as goods or in some other form, but not as goods for sale) by a person exclusively in, or exclusively in connection with, the establishment, operation or maintenance by that person of a railway providing, primarily and principally for use by the public, a service for the transport of persons or goods (other than a service provided for, or in connection with, purposes of recreation, pleasure, or amusement).

2. This office was recently asked to consider the scope of the exemption provided by item 119B, i.e. what is meant by the term `railway'? On one view, it may be said that exemption applies only to the railway track, platforms, sidings, signals and so on, i.e. the physical railway. An alternative view is that exemption applies to all goods used exclusively in connection with the establishment, operation or maintenance of railways, i.e. it extends beyond the actual railway to goods such as office equipment, stationery and motor vehicles provided that those goods are used exclusively in connection with the railway.

Ruling

3. Item 119B was introduced into the sales tax law in 1961 to provide exemption for privately operated railways comparable to the exemption provided for public transport authorities under item 77. Item 77 provides exemption for goods for use (whether as goods or in some other form) by public transport authorities exclusively in, or exclusively in connection with, the establishment, conduct or maintenance of transport services.

4. When item 77 was introduced into the sales tax law it was the intention that exemption would apply to all goods purchased or imported by a public transport authority for use in connection with its transport services. This intention is reflected in a longstanding published ruling on p. 244 of the publication `Sales Tax Exemptions and Classifications' which states that exemption applies to furniture, motor vehicles, overhead equipment, paint, power station machinery and stationery.

5. Item 119B is expressed in similar terms to item 77 and it is clear that the intention of the Parliament was that persons operating private railways should be accorded a similar exemption to that applicable to public transport authorities. Item 119B is not restricted in its interpretation to apply only to the railway track, platforms, siding, signals, etc. but has the wider interpretation applied to item 77.

6. Item 119B requires that the goods be used exclusively for the specified purposes for exemption to apply. If there is any other use then exemption will not apply. If, for example, an operator of a railway had other business interests and acquired an item of goods to service all his business interests including the operation of the railway, exemption under item 119B would not be available because the item was not used exclusively for the purposes of the railway. There may be cases where the use of goods for purposes not connected with the railway operations is so insignificant in relation to their use for railway purposes that it may be ignored in determining whether exemption under item 119B applies.

7. Item 119B is not restricted to a person who owns and operates a railway. It also applies to exempt equipment used by contractors in the maintenance of railways, e.g. track maintenance and in the maintenance of railway maintenance equipment. The equipment has to be used exclusively for railway purposes to qualify for exemption under item 119B.''

I am unable to find support for the plaintiff's case in that ruling: it refers to ``persons operating private railways'' but is not, I think, of assistance in deciding what constitutes the ``operation of a railway''. Indeed the reference to a person who ``owns and operates a railway'' suggests a more diversified activity than is conducted by the plaintiff. That is not to say that too much emphasis should be given to the word ``owns''; in these days, when some governments are selling their rolling stock and then leasing it from the financier, legal

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ownership does not retain its earlier importance.

Returning to the question of construction, Mr. Charles submitted that it was sufficient to show that the siding was either a railway, or part of a railway; it was said that the ``railway'' was ``operated'' from the buffer of the siding, thence to the S.R.A. siding, thence to the main system, of which the siding formed a part. Both counsel referred to dictionary definitions, in Stroud, the Oxford and Macquarie. However, as is so often the case, there is something for both parties in the various definitions, and reference to Stroud shows that most of the definitions relate to questions of construction of English statutes, the terminology of which bears little resemblance to that of Item 119B, and they are accordingly of limited value in this case. However, they do tend to establish, for example, that a siding forms part of a railway (that is here common ground), that a single track may be described as a railway, but that more often reference to a ``railway'' is a reference to the enterprise or business of a railway.

One of the meanings of ``operate'' given in the Oxford Dictionary (2nd ed.) is ``to direct the working of; to manage, conduct, work (a railway, business, etc....);'' another is ``the action of operating or working a machine, engine, railway, business etc....''.

Of ``railway'' it is said, inter alia, ``a way or road laid with rails...'', and:

``a line or track consisting of iron or steel rails, on which carriage or wagons conveying passengers or goods are moved by a locomotive engine. Hence also, the whole organisation necessary for the conveyance of passengers or goods by such a line, and the company or persons owning or managing it.''

It is as well to have regard to Pearce's Statutory Interpretation in Australia (2nd ed.) at p. 39 where it is said:

``Although usually stated separately, the noscitur a sociis rule reflects the same philosophy as the general approach of reading an Act as a whole. When writing, a person assumes that his reader will not read the document word by word but will look at whole phrases or sections. Stamp, J. in Bourne v. Norwich Crematorium Ltd. [1967] 1 W.L.R. 691 at 696 put it thus:

  • `Sentences are not mere collections of words to be taken out of the sentence, defined separately by reference to the dictionary or decided cases, and then put back again into the sentence with the meaning which one has assigned to them as separate words, so as to give the sentence or phrase a meaning which as a sentence or phrase it cannot bear without distortion of the English language.''

I respectfully adopt that observation of Stamp, J. in deciding what is meant by ``the establishment (or) operation... by that person of a railway...''. It is of limited value separately to study dictionary meanings of the words ``operate'' and ``railway''. To my mind, at first sight, the ordinary meaning of the words ``the establishment of a railway'' followed by limiting phrases, connotes not merely the physical construction of the various necessary parts, but the establishment of an enterprise or business. (In English railway legislation, the word ``construction'' is used where ``establishment'' is here used, suggesting, I think, that the Commonwealth Parliament wished to make it clear that something more than mere construction of the integral parts was involved.)

And so with ``operation of a railway'', the connotation is, I believe, of the operation of an enterprise or business.

However, as will be seen, Mr. Charles submitted that this was not the ordinary meaning of the words, and that in any event ``operation'' has a wider meaning than I would at first sight attribute to it.

Mr. Charles submitted that it is not necessary that the operator operates a whole system; it is sufficient if it operates part of a system, which the siding admittedly is. Mr. Charles referred to a number of authorities. In
The South Eastern Railway Company v. The Railway Commissioners (1881) 6 Q.B.D. 586 at pp. 601-2 Brett, L.J. said:

``But the terms `railway', and `railway station' are not mere legal terms; they are the descriptions in ordinary phraseology of well understood things of an ordinary kind. The terms, as used in the statute, are therefore to be construed as such

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descriptions. If there is an omission of some reasonable facility within the Act in the working of the railway, which omission can be reasonably supplied without altering the railway, using the term `railway' as a description of that which is ordinarily understood by people of ordinary sense to be `a railway', there is nothing in the Act which says that it would be an answer on the part of the company to an order to supply the omission, that it could not be supplied without some structural alteration or addition. For instance, if additional points or sidings were requisite for safety at an existing junction, no ordinary person would say that the addition of a set of points or the laying of a siding rail would make a new railway; they would term it an adaptation or improvement of the existing railway; though an order to make a single line railway from A to B into a double line railway would be considered by all ordinary persons of intelligence to be an order to construct a substantially new line of railway or new railway.''

Those observations were, however, also relied upon by Mr. Batt as suggesting that more is involved in ``operating'' than is performed by the plaintiff.

I am unable to gain assistance from the judgment quoted. It illustrates that ``railway'' can mean a new line, but it can obviously mean much more, depending upon the context. If Vicrail constructed an additional track to Geelong, I would imagine that many people would describe that as an additional track or line rather than a ``new railway''; and I could not think that Vicrail would be regarded as ``operating a new railway''.

Mr. Charles relied upon
The Great Northern Railway Company v. Tahourdin (1883) 13 Q.B.D. 320 as authority for the proposition that a railway can be part of a railway system. An issue there was whether the Sutton Bridge Dock Company, which was ``mainly a dock company'', was a ``railway company'' within the meaning of the relevant statute. Brett, M.R., at p. 324, referred to ``railways for the purposes of the dock, that is to say, railways which at one end were joined to a system of railways...''.

I am not in doubt that a railway can be part of a larger system; indeed it can be said that any State railway system is part of the Australian railway network (or system), but no one doubts that each State ``operates a railway''.

However, Brett, M.R. went on to say that ``the company was not a railway company in the ordinary sense of the term''.

In the ordinary sense of the term a railway company is a company which operates (and perhaps owns) a railway business. The Sutton Bridge Dock Company had constructed and then operated railways at the dock, and its activities must surely be regarded as involving more elements of a railway business than can be discerned in the plaintiff's activities. Yet the former company ``was not a railway company in the ordinary sense of the term''. It must surely follow that, in the ordinary sense of the term, the plaintiff did not ``operate a railway''.


The South Wales Railway Company v. Swansea Local Board of Health (1854) 4 El. & Bl. 188 stands as further authority for the proposition that the siding is part of a railway, but since that is here common ground, it is unnecessary to discuss that case.

Both counsel sought to draw support from
London and India Docks Company v. The Great Eastern Railway Company [1902] 1 K.B. 568 where a dock company constructed rails and sidings to enable trains of a railway company to transport goods from the quays to the railway station.

Collins, M.R. said at p. 590:

``In order that the applicants may succeed, they must make out that the various lines over which this route passes respectively form part of one continuous line of railway communication. The applicants' share of the suggested route is simply composed of the lines laid down about their docks. In my opinion these lines cannot reasonably be said to form part of a continuous railway route from any place to any other place within the meaning of the Railway and Canal Traffic Act 1888. They are the lines by which the business of the docks is carried on, and it seems to me contrary to the ordinary meaning of words to say that these lines, which constitute the usual means of moving foods about the docks, are part of a through railway route or, in the words of the

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Act, a continuous line of railway communication from one place to another.''

And at p. 593:

``... and the sidings of themselves cannot constitute a railway. Their existence could only be material, if there were already existing a railway of which they could be said to be part.''

Matthew, L.J. said at p. 594:

``I am unable to accept the contention that this portion of line still retains the character of a railway. It appears to me that it has been practically merged in the system of tramways used for dock purposes. That being so, I think it is impossible to contend that the dock sidings, taken by themselves, and in the absence of any railway to which they belong, are a `railway' which is owned by the applicants as a `railway company' within the meaning of the Regulation of Railways Act 1873, and the Railway and Canal Traffic Act 1888.''

As with some dictionary definitions, there may be thought to be something for each side in those dicta. However, as the Master of the Rolls observed at the beginning of the first passage quoted above, the issue there was whether the relevant lines formed ``part of one continuous line of railway communication''. The judgments do not seem to me to offer much assistance on the proper construction of Item 119B.

Mr. Charles went on to submit that even if the siding were properly to be regarded as the S.R.A. railway, nevertheless it was operated by both the S.R.A. and the plaintiff; he cited
Gilbert & Ors v. Commissioner for Government Transport (1960) 103 C.L.R. 1, per Kitto, J. at p. 12, where his Honour observed that one bus route could be operated by two operators. Again, I do not find much assistance from a case where the facts are so very different from those in the present case, and where it was unarguable that each of the companies was operating an omnibus business.

Mr. Charles conceded that at first impression it is difficult to see how someone could operate a railway without owning or possessing a locomotive or wagons; however, it was said that the purpose of the siding was to inject goods into the railway transport system, and since the plaintiff operates the siding. It operated part of the S.R.A. railway. Mr. Charles also virtually conceded that he had seen no case where a company which did not own or control a locomotive or wagons had been held to be an operator of a railway. Perhaps the closest reference I have seen is in Stroud's Judicial Dictionary p. 2140 where under the definition of ``railway company'' it is said:

``A railway company which had no rolling stock, and whose line was wholly worked by another company under a proportional mileage agreement, but which maintained and managed its own line, and collected and forwarded its own traffic, and wholly employed and payed the staff engaged on its own line, was a `railway company' within Railway and Canal Traffic Act 1854 (c. 31), and Regulation of Railways Act 1873 (c. 48) (
Central Wales Railway v. Great Western Railways, 10 Q.B.D. 231).''

The report of the case (p. 234) shows that the paid staff referred to were ``the whole of the staff at the several stations on their line'', a line which ran through a considerable area in Wales (as the crow flies, some 120 miles). That again is a case where the facts are far removed from this case.

Mr. Charles submitted that a fact (and, as I find, it is a fact) of significance was that once the rake of wagons was delivered to the siding, the wagons were entirely under the control of the plaintiff, over whose activities the S.R.A. neither exercised nor sought to exercise control. The S.R.A., as the evidence establishes, regarded the plaintiff as an efficient organisation whose activities were well known to the S.R.A.

Mr. Charles then went on to deal with other elements involved in Item 119B, but on the final day of the hearing returned to the question of the operation of a railway, in response to a comment by me that the construction he was advancing seemed to me to give no meaning to the words in Item 119B ``by that person''. It was then submitted that the ``establishment, operation or maintenance'' was a composite term; that the Oxford dictionary meaning of ``maintenance'' which was here apt was:

``The action of keeping in effective condition, in working order, in repair etc.; the keeping up of (a building, light, institution, body of troops etc.) by the

ATC 4354

supply of funds or needful provision; the state or fact of being so kept up; means or provision for keeping up...''

It was said that ``any element of control is absent; it is simply taking part in the actions of maintaining it''.

A little later, Mr. Charles went on to submit that the word ``operation'' includes maintenance; that the nouns in Item 119B forming the composite group, read in context, meant:

``that the user of the goods... must be properly regarded as exclusively involved in, or as part of, or engaged in, the establishment, operation, or maintenance of a railway... it avoids as simply unnecessary any requirement that a person must be classified as an operator for the purposes of any entitlement to exemption.''

It was said that Item 119B requires one ``to look at the activities of the user, to see whether the user is engaged in establishment, operation or maintenance of the railway''; and if the plaintiff invariably used the Hyster in the operation (as I understand him, including the maintenance) or in part of the operation of the railway, then it would be entitled to the exemption.

Mr. Charles virtually conceded that this submission constituted a major shift in the way in which the case was put, he having earlier conceded that the exemption is intended to apply to the establisher, the operator, or the maintainer of the railway.

I turn now to the submissions of Mr. Batt.

He submitted that the question whether goods are ``for use'' within the meaning of Item 119B requires ``an objective characterisation in the light of, amongst other things, the subsequent actual use''. He referred to
D.F.C. of T. v. Stewart & Anor 84 ATC 4146; (1983-1984) 154 C.L.R. 385 where Gibbs, C.J. said at ATC p. 4149; C.L.R. p. 390 that in many cases ``the words `for use' indicate the purpose to which it is intended the goods shall be put, rather than the use for which the goods were designed''.

Deane, J. said at ATC p. 4155; C.L.R. p. 401:

``While the subjective intentions of manufacturer or purchaser are relevant and may well be conclusive, what is required is an objective characterization of the goods themselves in the light of all the relevant circumstances. That characterization must be made as at the time when liability to sales tax would otherwise attach. It will, in an appropriate case, be made with the benefit and in the context of knowledge of the actual use which was subsequently made of the goods.''

Those dicta state the law this Court must apply. Accordingly, the Court must so characterise the Hyster as at the date of purchase, December 1985.

Mr. Batt submitted that the words ``railway'' and ``operate'' were not technical words, and that they must be given their ordinary meaning. He submitted that the siding did not constitute a ``railway'' within the meaning of Item 119B, and even if it did, then the plaintiff did not operate a railway.

It was said that there is only one railway at Cook's River, of which (as the plaintiff pleads) the siding forms part; and that there is only one operator of that railway, the S.R.A. Even if the relevant line could be held to be ``a railway'', the S.R.A. is the sole operator.

It was said that there were five principal reasons for rejecting the plaintiff's contention that it operated a railway:

  • 1. There was lacking the primary ingredient - an engine.
  • In
    Quebec Railway Light and Power Company v. The Town of Beaufort (1945) S.C.R. 16, a case involving Canadian constitutional law, where the construction of the Railway Act 1919 fell for consideration, Rand, J. said:
  • ``Now the word `railway' imports locomotion on or over `rails', furnishing a service within fixed and rigid limits...''
  • As with Stroud's definitions, I repeat that this and a number of other cases referred to in this hearing, involved the construction of other statutes, and accordingly they are of limited value. However, an observation such as that of Rand, J. quoted above is one of general application, and, if I may respectfully say so, accords with common sense and the ordinary meaning of words.
  • 2. The plaintiff owns no rolling stock.

    ATC 4355

  • 3. A railway must have a terminus at each end - here, one is lacking.
  • I should say at once that I do not regard the absence of a terminal ``at the other end'' as of any consequence. The ``terminal'' to which the plaintiff forwarded some containers was in Perth, so in one sense the S.R.A. had a terminal only at one end of its railway.
  • 4. The siding was no more than a siding and cannot constitute a railway; this was merely part of the S.R.A. railway.
  • 5. The plaintiff had no control over the timetable of the railway; it had some control over the time of arrival of a rake at the siding, in that a rake would not be pushed into the siding without the prior request of the plaintiff, and no control over the time of its departure, which (although of course it did not occur until the plaintiff had notified the S.R.A. that the rake was ready for removal) was removed at the sole convenience of the S.R.A., which no doubt, depended upon the efficient assembly of more than one rake into a single train.

I have already made references to authorities upon which both counsel relied and I shall not repeat them.

While conceding that several meanings could be given to the word ``railway'', it was submitted that in the context of Item 119B it meant no less than the line, rolling stock and locomotive.

Mr. Batt went on to submit that, although the words ``establishment, operation and maintenance'' need to be looked at together, there is here no question of use or proposed use of the Hyster in establishing a railway, or maintaining a railway; it was said that the use of the Hyster as a substitute for the S.R.A. gantry crane was clearly not maintenance of the gantry or of the railway. In my opinion that is clearly right, and I must reject Mr. Charles' contrary submission. ``Maintenance of a railway'', I think, has a different connotation to establishment and operation of a railway, which, as I have earlier suggested, seems to me to involve an enterprise or business; whereas maintenance, I think, relates to repair or keeping in order of the plant or equipment of the enterprise. I do not think the plaintiff ``maintains'' the gantry when the Hyster is substituted for it, nor does the plaintiff ``maintain'' the enterprise, notwithstanding that the Hyster is carrying out one of the normal activities performed in the operation of the S.R.A. railway.

As to ``operation'', Mr. Batt submitted that it meant ``working the railway as constructed''. After referring to the Oxford definition quoted above, he cited
Canadian Northern Railway Company v. Thomas D. Robinson [1911] A.C. 739, where the Judicial Committee considered legislation concerning the words ``operation of a railway''. In the judgment delivered by Viscount Haldane it is said (p. 745):

``Such operation seems to signify simply the process of working the railway as constructed.''

Mr. Batt submitted, in summary, that on the question of ``operation of a railway'', the plaintiff had no engine, it was not concerned with maintenance of the wagons or the maintenance of ticketing by the use of green or red tickets, and the S.R.A. did the shunting and the departure of rakes. As to the importance (or lack of it) of the fact that the plaintiff used the Hyster to ``break'' the rakes, Mr. Batt pointed out that no mention of this activity was made in the plaintiff's further and better particulars relating to the use to which the Hyster was put.

I was reminded that the Hyster was not used for towing wagons, nor for re-arranging their order, and that it was designed purely for lifting.

Finally it was said that all the plaintiff does is to load or unload wagons, and for that purpose to break or move the wagons on the siding; that it was only a sophisticated loading or unloading system, but not the operation of a railway; that the S.R.A. is the operator of the railway and that it is a misuse of language to call the plaintiff an operator.

It was said that Mr. Charles' later submission is ``unrealistic'' that it tends to ignore the words ``by that person''; that the language of Item 119B is plain; whether ``establishment'', ``operation'' or ``maintenance'' are left as nouns or changed to verbs, the evidence shows that what is done is loading and unloading, and not the operation of a railway.

I have earlier referred to what seemed to me to be the ordinary meaning of the words now under consideration, and my first impression of them. I have not seen any authority which

ATC 4356

persuades me that the plaintiff should be regarded as ``operating a railway''. In their context, I think those words refer to a railway enterprise or business; there are many of the happenings, activities and elements of an ordinary railway enterprise which are not to be found in the plaintiff's enterprise; it has no locomotive, no wagons, no stations, no signals, no points or switches, it maintains no railway equipment or plant (save for cleaning the rail area), it employs no engine drivers, no shunters (as that word is generally understood), no guards, no signalmen, it tows no wagons, but merely pushes them for a few yards, it does not ``transport'' goods on its siding, but it merely loads and unloads them, and no engine or wagon under its control or direction transports them.

In my opinion some guidance is to be found in London and India Docks Company (supra) where Collins, M.R. said at p. 590, immediately following the passage earlier quoted, in speaking of the relevant tracks:

``They are not, as it seems to me, brought into existence for that purpose, but for the purpose of facilitating the moving of goods from one part of the docks to another. I do not think they form part of a continuous railway route which can be made the subject of a through rate. Looked at broadly, I think the dock, with its appliances, may be regarded for the present purpose as analogous to a larger terminal station on a railway, and the lines as appliances for moving traffic about to and fro in the station, and not as part of the line of railway communication. I think that, if the counsel for the applicants had been obliged to rely on these dock lines and sidings only, he would have had great difficulty in contending that the applicants were a `railway company' for the purpose of s. 25 of the Act.''

An analogy might be seen in the operation of a loading bay of a road haulier; if a subsidiary company ``operated'' the loading bay, where some trailers without prime movers were left for loading and unloading, and a tractor was used to park the trailers, it could scarcely be said that the subsidiary operated a road transport business, albeit that the parent did so, and that the subsidiary's activities would be regarded as having been performed ``in connection with'' the road transport business.

I am satisfied that the Hyster was obtained by the plaintiff for use in connection with the operation of a railway by the S.R.A., and that it was almost exclusively so used; but I am not satisfied that it was obtained for use, or was used, in connection with a railway operated by the plaintiff.

Accordingly, the plaintiff is not entitled to the benefit of the exemption under Item 119B.

Having regard to that finding, the action must be dismissed. However, as some of the other elements of Item 119B were fully argued, it is perhaps as well that I express briefly my views on them.

``Exclusively''

Mr. Batt submitted that the necessary exclusivity had not been established, and accordingly, even if the plaintiff would otherwise have been entitled to the exemption, the claim must fail. I was moved to comment that this was a miserable point for the Commissioner to take, for the reason that (as I find) the Hyster was from time to time used as a favour to help the S.R.A. when its gantry had broken down, the plaintiff regarding it as good business sense to foster good relations with the S.R.A., and while fees were charged, it was not financially profitable to interrupt the plaintiff's operations; the activity was clearly one which assisted a railway operator which itself would have been entitled to an exemption if it had purchased a forklift to substitute for the gantry. But Mr. Batt was not instructed to make any concession.

It would seem to me to be a startling result, and one which could not have been intended by Parliament, if the giving of such assistance to an exempt railway operator could cost the helper dearly. But, submitted Mr. Batt, hard cases make bad law, and the Court should find as applicable the reasoning of Windeyer, J. in
Randwick Corporation v. Rutledge & Ors (1959) 102 C.L.R. 54, a rating case where the Court was considering whether land used principally as a racecourse was used as a public reserve.

At p. 94 Windeyer, J. said:

``The question arises, for example, when part of the subject land is used for the relevant purpose and another part for a different purpose Sisters of Mercy Property Association v. Newtown and Chilwell

ATC 4357

Corporation.) The presence of `exclusively', `solely', or `only' always adds emphasis; and is not to be disregarded (Reg. v. Cockburn.) When such words are present, it is a question of fact whether the land is being used for any purpose outside the stipulated purpose (cf. Trustees of Victorian Rifle Association v. Mayor of Williamstown; Down v. Attorney-General of Queensland.) As Kitto, J. said in Lloyd v. Federal Commissioner of Taxation, such words confine the use of the property to the purpose stipulated and prevent any use of it for any purpose, however minor in importance, which is collateral or independent, as distinguished from incidental to the stipulated use. Even without such words, an exemption from rating based upon use or occupation for a particular purpose or in a particular manner can only apply when the property is so used that it can properly be described as used for that purpose or in that manner, any other user being merely incidental, or at least not inconsistent with such main user.''

(emphasis added)

Mr. Batt relied particularly on the [emphasised] words, and submitted that here the use of the Hyster to assist S.R.A. was collateral, and not incidental to the stipulated use, a submission the correctness of which was disputed by Mr. Charles.

That case dealt in part with the actual use of the land, and while the actual use of the Hyster is relevant (Stewart's case), I am satisfied that the plaintiff obtained the Hyster for the use to which it was in fact put at the siding; and that although it was known to the plaintiff's executives that the Hyster might on occasions be used to assist the S.R.A., that fact had no bearing on the decision to purchase.

Accordingly, in my opinion, the use to which it was put in giving that assistance (which amounted to a minute portion of its total workload) ought not to produce a finding that the goods were not for use ``exclusively in connection with the operation of a railway''.

``Public use''

I am satisfied that if the plaintiff was operating a railway, the railway was providing a service ``primarily and principally for use by the public'' within the terms of Item 119B. Mr. Batt said he was instructed to submit that the evidence did not establish this element, but he showed no enthusiasm for developing the submission, understandably so, as I think. Use by a significant section of the public is sufficient
Lee v. Evans (1964) 112 C.L.R. 276 at p. 285-7, 293; In
re Income Tax Acts (No. 1) [1930] V.L.R. 211 at p. 216;
Geo. Henderson Ltd. v. Assessor for Dunfries and Galloway (1962) Scot. Law Times 301 at pp. 303-4.

In the present case the evidence showed that the plaintiff advertised the service in a manner which made it probable that those members of the public interested in container railway transport would be aware of the service, and the plaintiff had a large number of customers.

``Transport''

Mr. Batt submitted that even if the plaintiff were held to be ``operating a railway'', then that railway did not provide ``a service for transport of goods'' within the meaning of Item 119B.

The Oxford dictionary gives as one definition of the word transport ``the action of carrying or conveying a thing or person from one place to another''.

Mr. Batt submitted that the plaintiff arranged for the transport of goods, but the railway which transports the goods is that of the S.R.A.; the plaintiff was a forwarder or despatcher of goods upon the railway of another.

He referred to The Cyclops [1923] P. 80 at p. 83 where Hill, J. said: ```transported' involves, in my view, moving from one fixed place to another fixed place''. It was said that the plaintiff did not ``transport'' goods on the siding - they were transported to it and from it by the S.R.A.

Mr. Charles submitted there were four answers to Mr. Batt's submission:

  • 1. Item 119B required that the service be ``for'' the transport of goods, not ``of'' the transport.
  • 2. It was sufficient that the service is appropriately related to or connected with the transport of goods, this being the injection of goods into the public transport service.
  • 3. Mr. Batt's submission ``ignores the fact that it is the railway that has to provide the

    ATC 4358

    service for transport in connection with the establishment, operation or maintenance by that person of a railway providing a service for the transport of goods''.
  • 4. The plaintiff's railway was the first part of the railway that provides the transport from one fixed place to another.

However, as Mr. Batt pointed out in reply, the submission appears to involve inserting a further phrase ``in connection with'' Item 119B. It must steadily be borne in mind that the question does not involve identifying the service provided by the plaintiff. Item 119B speaks of the service provided by the ``railway''. So the question here is, ``does the siding provide a service for the transport of goods'': and it is not, ``does the siding provide a service in connection with the transport of goods''.

In dealing with the absence of the usual happenings and activities of a railway, I have said that the plaintiff does not transport goods on the siding. Again I think the analogy of the road haulier's loading bay is apt. If one examines what occurs on the siding, it may readily be seen that the facilities thereof are used ``in connection with'' the transport of goods. But do they provide a service for the transport of goods?

I think the question then becomes one of deciding whether the words of Item 119B should be understood to mean ``a railway transporting goods'' (which the plaintiff's siding does not do) or whether it is sufficient if the railway provides a service in connection with the transport of goods by another on another's railway.

In my opinion, the Item must be given the former meaning. The words must be read in their context, and so read, I think, the Item is concerned to grant exemptions to those who may fairly be said to transport goods on a railway operated by them. The plaintiff does not do that. Accordingly this element is absent.

For the reasons given, there must be judgment for the defendant with costs.


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