L Katz M
Administrative Appeals Tribunal
L Katz (Member)
The sole question which arises for determination in the present matter is whether, in the year of income commencing 1 July 1990, that for the encouragement or promotion of which the applicant was established, namely, the modelling of railways, was either a ``game'' or a ``sport'' within the meaning of subparagraph 23(g)(iii) of the Income Tax Assessment Act 1936.
Subparagraph 23(g)(iii) took its present form in 1990 (Taxation Laws Amendment Act (No. 2) 1990, paragraph 6(a)); it first applied to assessments in respect of income of the year of income commencing on 1 July 1989 and has continued to apply to assessments in respect of income of all subsequent years of income (subsection 61(2) of the Act just mentioned), therefore obviously including the year of income commencing on 1 July 1990. The subparagraph exempts from income tax the income of a society association or club which is not carried on for the purposes of profit or gain to its individual members and is established for the encouragement or promotion of a game or a sport.
As already foreshadowed by the characterisation of the question set out in the first paragraph above as the ``sole'' question for determination in the matter, there is no dispute between the applicant and respondent that during the year of income commencing 1 July 1990 the applicant was:- (a) a society association or club which was not carried on for the purposes of profit or gain to its individual members; and (b) established for the encouragement or promotion of the modelling of railways.
There was before the Tribunal on the hearing of the application, as well as the usual ``T documents'', a statement of facts agreed between the applicant and respondent. Those facts (omitting a portion thereof which would be a means of identifying the applicant) are as follows:-
- ``1. The applicant is incorporated as a non- profit company limited by guarantee.
- 2. The objects of the applicant company include promoting and encouraging `the science and practice of the hobby of model trains, railways and railroading in all branches and the knowledge and efficiency of persons engaged therein' as per clause 2(b) of the applicant company's Memorandum of Association.
- 3. The applicant holds meetings for its members, organises and participates in conventions, workshops, open days, seminars and exhibitions.
- 4. The applicant publishes bi-monthly a magazine entitled `...' which is issued to members, and sold through hobby shops, newsagents and by subscription.
- 5. The hobby of model railways is an activity in which the participants:
- a. collect and/or design and/or construct scale model railway engines, rolling stock, tracks, scale miniatures of buildings, features comprising a landscape and other equipment associated with railways;
- b. design and construct track layouts with the object of creating a diorama and scale setting which simulates realistic, geographical, engineering and architectural features of passenger and freight railway systems;
- c. design and fit electronic circuitry, components and other accessories to enable the models and associated apparatus to be operated;
- d. exhibit working models (in competition and otherwise);
- e. publish literature including articles, photographs and sketches concerning practical aspects of the hobby and matters of historical interest in connection with railways;
- f. attend meetings, exhibitions, conventions, seminars and workshops.''
(It was implicitly accepted both by the applicant and by the respondent that, in so far as the facts agreed upon were expressed in the present tense, they were equally applicable to the year of income commencing 1 July 1990.)
Additionally, the applicant put before the Tribunal certain extrinsic material relating to the enactment of the current version of subparagraph 23(g)(iii), namely, extracts from the Budget Papers for 1989-90 and from the explanatory memorandum relating to the Taxation Laws Amendment Bill (No. 2) 1990, together with extracts from dictionaries containing definitions of the terms ``game'' and ``sport''; these dictionary extracts came both from the Oxford English Dictionary (2d ed, 1989) and from the Macquarie Dictionary (2d ed, 1991).
Finally, the respondent put before the Tribunal the applicant's memorandum and articles of association and two recent issues of its bimonthly magazine. (It was implicitly accepted both by the applicant and by the respondent that the issues of the applicant's magazine before the Tribunal were typical of those published during the relevant period.)
By way of introduction to the determination of the question set out in the first paragraph above, I begin with some matters of history.
Reference in statutes to games (if not to sports) is not a new phenomenon. Over six hundred years ago, 12 Richard II, chapter 6 (1388) provided that servants and labourers were to ``leave off all plays of tennis or football and other games called coits, dice, casting of the stone, kails and other such importune games''; there exists a lengthy history of similar laws both in England and Australia directed to the prohibition of engaging in certain specified games, either absolutely or conditionally. Restricting oneself, however, to statutory references to games or sports in Commonwealth law, the present version of paragraph 23(g)(iii) is by no means the first provision in Commonwealth law to contain such references, nor, more particularly, is it the first provision in Commonwealth taxation legislation to contain a concession in respect of liability by reference to a game or a sport. So far as I have been able to discover, the palm in that respect is borne by the Entertainments Tax Act 1949, section 3.
The background to the enactment of that provision was as follows:- in 1942 Parliament had imposed a tax upon payments for admission to entertainments. The amount of the tax depended upon the amount paid for admission, but with a concessional rate for certain entertainments, namely, those where all the performers whose words or actions constituted the entertainment were present and performing and the entertainment consisted solely of one or more of the following items, namely, a stage play, a ballet, a performance of music (whether vocal or instrumental), a lecture, a recitation, a music hall or other variety entertainment, a circus or a travelling show. Then in 1949 the 1942 Act was amended by the Entertainments Tax Act 1949 to expand the list of entertainments in respect of which the concessional rate of tax was available. After the
ATC 155amendment it included as well, in paragraph 5(b), cases in which,
``... the entertainment consists solely of a game or sport in which human beings are the sole participants (but not including dancing or skating unless conducted solely for competitive purposes) and the entertainment is conducted by a society, institution or committee not established or carried on for profit...''
When the proposals later embodied in the Entertainments Tax Bill 1949 were before the House of Representatives Committee of Ways and Means (that Committee not yet having been abolished) the Minister explained the relevant proposal as follows (Hansard, 15 February 1949, 249),
``The principal purpose of this motion is to allow a measure of relief from entertainments tax in respect of payments for admission to games or sports in which human beings are the sole participants and which are conducted by organizations not established or carried on for profit. This action is being taken in response to widespread representations which have been received from time to time from non-profit sporting bodies conducting amateur sport throughout Australia...
Special rates of tax are applied under the existing law to the legitimate theatre, including stage plays, ballet, musical performances, and the like. These rates are lower than the rates applied to other classes of entertainment such as picture shows. It is proposed to extend the scope of the relevant definition so that games or sports of the kind that I have mentioned will obtain the benefit of the special rates...
The sports or games affected include football, cricket, hockey, tennis, athletics, swimming, cycling, boxing and wrestling, provided always that the particular entertainment is promoted by a body not established or carried on for profit. The concession does not apply to horse racing and trotting, or to dog racing, coursing, or polo, whether or not they are conducted by non-profit organizations. The concession will not apply to entertainments such as dances and roller or ice skating except where the sole purpose of the entertainment is to conduct competitions in dancing and roller or ice skating. The existing rates of tax will remain in respect of exhibitions or contests promoted for the financial gain of the promoters in boxing, wrestling, foot racing, cycling, motor car racing, motor cycle racing, speed boat racing, skating, dancing and billiards.''
At the time of the amendment to the entertainments tax legislation just discussed, the income tax legislation contained no concession in respect of liability by reference to either a game or a sport. However, shortly thereafter, the Treasurer referred to the Commonwealth Committee on Taxation the question whether it was desirable that paragraph (g) (among others) of section 23 of the Income Tax and Social Services Contribution Assessment Act 1936 as it then stood should be amended and in particular whether the exemption provided by the section should be extended to any further classes of bodies. (At that time paragraph 23(g) provided that, subject to Division 9A of Part III (which dealt with friendly society dispensaries), the income of a society or association not carried on for the purposes of profit or gain to the individual members thereof, and being a friendly society, or a society or association established for musical purposes, or for the encouragement of music, art, science or literature, should be exempt from income tax.)
On 22 July 1952 the Committee reported to the Treasurer on the question referred (see Parliamentary Paper 136 of 1952). Speaking of the existing paragraph 23(g), the Committee had this to say,
``13. Representatives of some sporting associations waited upon the Committee and sought exemption under this provision from tax upon the income of associations and clubs established for the control of games. It was pointed out to the Committee that the income of these associations and clubs is applied solely for the development and encouragement of the particular game controlled, without profit or gain to the individual members of the association or club.
14. The Committee is satisfied that the controlling bodies of games such as cricket, tennis and football do, in fact, expend the whole of their revenues towards the advancement of the game under their control. The revenues are expended in providing playing grounds and sporting
ATC 156equipment for the players, and in meeting travelling and other expenses incurred for the purpose of engaging in international, interstate, inter-district or inter-club contests.
15. Section 5 of the Entertainments Tax Act provides for concessional rates of tax where the entertainment consists solely of a game or sport in which human beings are the sole participants, and the entertainment is conducted by a society, institution or committee not established for profit.
16.... In the opinion of the Committee, the exemption [in paragraph 23(g)] should be extended to include the income of any body or association in control of an out-door athletic sport or game of the type covered by Section 5 of the Entertainments Tax Act and mentioned in the preceding paragraph.
17. Payments are frequently made to the participants in sporting activities, or to members in their capacity as players. These payments are liable to tax in their hands, and the Committee is of the opinion that such payments should continue to be so liable. It is considered, however, that payments of this nature should not disqualify the controlling body from the benefits of exemption.
18. The Committee recommends, therefore, that Section 23(g) should be amended to exempt the income of an association or club which is established solely for the purpose of promoting an out-door athletic sport or game in which human beings are the sole participants, and which is not carried on for the purposes of profit or gain to the individual members.''
In the same year as that in which the Committee reported, the Income Tax and Social Services Contribution Assessment Act (No. 3) 1952 repealed and replaced the existing paragraph 23(g) of the income tax legislation. The new paragraph was divided into three subparagraphs and relevantly referred to ``the income of a society, association or club which is not carried on for the purposes of profit or gain to its individual members and is'' ``a society, association or club established for the encouragement or promotion of an athletic game or athletic sport in which human beings are the sole participants''.
When the Bill for the 1952 amending Act was before the Senate, the Minister said in his second reading speech (Hansard, 9 October 1952, 2784) concerning the proposed amendment to paragraph 23(g),
``The Government proposes to give effect to a... recommendation by the Commonwealth Committee on Taxation that certain sporting clubs should be exempt from income tax, if the sport is one in which human beings only participate and the organization is not carried on for the profit of individuals.''
The Minister's assertion that the proposed new paragraph 23(g) (which was not amended during its passage through the Houses) would give effect to the recommendation of the Committee was not entirely accurate. As was pointed out by Foster J in
Cronulla Sutherland Leagues Club Ltd v FC of T 90 ATC 4215 at 4245; (1990) 23 FCR 82 at 119,
``It is to be observed that the legislature considerably widened the scope of the proposed exemption. As well as not adopting the recommendation that the stated purpose be the sole purpose of the club's establishment it widened the scope of the exempting activity to include `encouragement' of athletic games or sports (which were also allowed to take place indoors).''
Having acted in 1952 to create an exemption from income tax liability by reference to a game or a sport, Parliament did not interest itself in that exemption again until the 1990 amendment referred to at the outset of these reasons. It will be noticed that the alterations made in 1990 to the original 1952 form of the exemption were twofold:- first, the removal of the adjective ``athletic'' which had formerly qualified both the word ``game'' and the word ``sport''; and secondly the removal of the former requirement that the game or sport concerned be one in which human beings were the sole participants.
The 1990 alteration had been foreshadowed in the budget speech of 15 August 1989 (Hansard, 53), at which time the Treasurer had merely said, ``The Government has... decided to exempt from tax non-profit sports and games clubs, such as pony and fishing clubs''. Budget Statement No. 4 (in Parliamentary Paper 164 of 1989), although not repeating the Treasurer's reference to fishing clubs as an example of the newly-exempted sports and games clubs, did repeat his reference to pony clubs and as well
ATC 157added a further example, saying (at 4.21) that, ``As a result of the changes, sporting clubs such as motor cycle clubs and pony clubs will have the same tax status as other sporting clubs''.
When the Taxation Laws Amendment Bill (No 2), which contained the proposed new subparagraph 23(g)(iii), was before the House of Representatives the Minister in his second reading speech (Hansard, 9 May 1990, 183), under the heading ``Sporting Bodies...'', said that an income tax exemption would be provided for not-for-profit bodies established for the promotion or encouragement of any game or sport, but, unlike the budget speech and Budget Statement No. 4, the second reading speech gave no examples of the games or sports in contemplation. However, the explanatory memorandum which accompanied the Bill was more forthcoming in that respect than had been the second reading speech. As had the Minister in his second reading speech, the memorandum also dealt with the proposed amendments under the general heading of ``sporting bodies''; at page 20 it said,
``... there is no special definition of what constitutes a `game' or a `sport'. However, the words are intended to be given their wide natural meanings. They extend to non- athletic games such as chess and bridge; to sports such as motor racing in which machines facilitate the competition of people; and to non-competitive activities such as mountaineering. The activities of pony clubs are also within the meaning of the words.''
I should mention finally, by way of conclusion to this historical introduction to the question for determination herein, an amendment to the income tax assessment legislation in 1987. In that year the Taxation Laws Amendment Act (No. 4) 1987, section 38, amended the Income Tax Assessment Act 1936 by repealing and replacing Part III, Division 16A thereof. The new Division dealt with abnormal income of, among others, sportspersons and the interpretation provision thereof, section 158B, contained in subsection (1) thereof a definition for the purpose of the Division of the word ``sport'' in the following terms,
```sport' means so much of a sporting activity as satisfies the following conditions:
- (a) the sporting activity is one in which:
- (i) human beings compete by riding, or by exercising other skills in relation to, animals;
- (ii) human beings compete by driving, piloting or crewing motor vehicles, boats, aircraft or other modes of transport;
- (iii) human beings compete with, or compete by overcoming, natural obstacles or natural forces; or
- (iv) where none of the preceding subparagraphs applies to the sporting activity - human beings are the sole competitors;
- (b) the participation in the sporting activity by each such human competitor other than:
- (i) a navigator in the activity of car rallying;
- (ii) a coxswain in the activity of rowing; or
- (iii) a similar competitor;
- involves primarily the exercise of physical prowess, physical strength or physical stamina;...''
Having concluded my historical introduction, I turn now to the question whether, in the year of income commencing 1 July 1990, that for the encouragement or promotion of which the applicant was established, namely, the modelling of railways, was either a ``game'' or a ``sport'' within the meaning of subparagraph 23(g)(iii) of the Income Tax Assessment Act 1936.
In answering that question, my first task is to decide whether the Act uses the words ``game'' and ``sport'' in subparagraph 23(g)(iii) in any sense other than that which each of them has in ordinary speech.
There is no judicial authority binding upon me relating to that particular preliminary task, although I should mention immediately the existence of the recent decision of the Federal Court (Hill J) in
Terranora Lakes Country Club Ltd v FC of T 93 ATC 4078, to which decision I will later refer again.
In my view the Act does not use the words ``game'' and ``sport'' in subparagraph 23(g)(iii) in any sense other than that which
ATC 158each of them has in ordinary speech. In reaching that conclusion I rely on a number of matters. First, neither of the words as it appears in the subparagraph is the subject of a definition provision. In that respect the contrast with subsection 158B(1) of the Act, in which in 1987 Parliament defined the word ``sport'' for the purpose of Part III, Division 16A, appears to me to be noteworthy, especially since the present version of subparagraph 23(g)(iii) was enacted three years later. Secondly, neither of the words has a technical legal signification. Thirdly, I find no indication in the Act generally of an intention that either of the words as it appears in the subparagraph was intended to have some meaning other than that which it has in ordinary speech.
Each of the matters on which I have just relied is similar to a matter on which Kitto J relied in reaching a conclusion similar to that which I have reached on the comparable question whether the words ``mining operations'' and ``mining property'' as appearing in section 122 of the Act had been used in the sense which they had in ordinary speech:-
New South Wales Associated Blue Metal Quarries Limited v FC of T (1955) 11 ATD 50, 52; (1955-1956) 94 CLR 509, 512.
In the present case, there is yet a fourth matter which may be of some significance, namely, the fact that the subparagraph as it now appears is a reworking of an earlier provision. Since 1990, the relevant words have been used in an unadorned form, whereas in the provision's first version the words had been hedged about with the adjective ``athletic'' and the requirement that the game or sport concerned be one in which human beings were the sole participants. This change may tend to strengthen a conclusion that the words were intended in the present provision to be used in the sense which each of them has in ordinary speech.
I should draw attention to the fact that the conclusion which I have reached on the question whether the Act uses the words ``game'' and ``sport'' in subparagraph 23(g)(iii) in any other sense than that which each of them has in ordinary speech appears to me to accord with the view already quoted above which was expressed in the explanatory memorandum to the Taxation Laws Amendment Bill (No. 2) 1990, circulated by authority of the Treasurer, namely, that the words ``are intended to be given their wide natural meanings''. I have not, however, found it necessary to rely on that expression of view in reaching my own.
Before leaving this aspect of the matter, I should refer to three further things.
First, a submission was made by Mr Gibb of counsel, who appeared for the respondent, which, if I understood it correctly, was to the effect that one would conclude that the words ``game'' and ``sport'' had been used in subparagraph 23(g)(iii) in a sense other and narrower than that which each of them has in ordinary speech by reason of the subparagraph's association with subparagraph 23(g)(iv), the latter subparagraph referring to a society association or club established for the encouragement or promotion of ``animal races''. Animal races being (so it was submitted) contests ordinarily conducted according to set rules, it followed that the words ``game'' and ``sport'', where appearing in subparagraph 23(g)(iii), were each intended to encompass only activities which were contests ordinarily conducted according to set rules, even though each would encompass a wider range of activities in ordinary speech.
I am not persuaded that the presence of subparagraph 23(g)(iv) should cause me to depart from the conclusion which I would have reached in its absence as to the intended meanings of the words ``game'' and ``sport''. Among other difficulties with it, the submission about the effect of subparagraph 23(g)(iv) on subparagraph 23(g)(iii) appears to me to treat paragraph 23(g) as though subparagraphs 23(g)(iii) and (iv) were the only subparagraphs in it, something which is not the case.
The second thing to which I should refer is the Terranora Lakes Country Club case, which I have already mentioned. That was a case which concerned, not the present form of subparagraph 23(g)(iii), but the 1952 form. The country club involved in the case was established in the relevant year of income for the encouragement or promotion of a number of activities, among which were clay pigeon shooting and deep sea fishing. In the circumstances of the case it was unnecessary for the Court to decide whether, if the country club were established solely for the encouragement or promotion of either of those two activities and otherwise qualified, it would have been entitled to the relevant exemption
ATC 159(see ATC pp 4087-4088; tr pp 26-27). However, in obiter, the Court expressed the view that each of those activities was a sport within the meaning of the subparagraph, referring, in doing so, to the fact that the Macquarie Dictionary illustrated both shooting and fishing as activities which were sports (see ATC p 4088; tr p 27).
The Court's approach to the question whether each of those activities was a sport within the meaning of the subparagraph, particularly, its reference to a dictionary, appears to me to suggest that it considered that the word ``sport'' as it appeared in the version of the subparagraph then under consideration had been used in the sense which it had in ordinary speech.
The third thing to which I should refer is the decision of this Tribunal (Deputy President McMahon) in Case Y14,
91 ATC 198; (AAT Case 6793
(1991) 22 ATR 3073). Like the Terranora Lakes Country Club case, that was a case which concerned the 1952 version of subparagraph 23(g)(iii). Among the questions for determination in the case was whether motor cycle racing was a sport, a question which was answered affirmatively. At ATC 204; ATR 3079 the Tribunal expressed the views that the words of the provision with which it was concerned must be interpreted according to their ordinary grammatical meaning and that dictionaries were of assistance in that regard.
In light of all of the above matters, I now proceed herein on the basis that the words ``game'' and ``sport'' were used in subparagraph 23(g)(iii) in the senses which each of them has in ordinary speech.
My next task is to decide whether the modelling of railways is a ``game'' or a ``sport'' within the meaning of either of those words as used in ordinary speech. I am to perform that task (to paraphrase Lord Wilberforce in
Brisbane City Council v A-G Qld  AC 411 at 423) by using my knowledge of the language and my acquaintance with accepted applications of those words to situations arising in the normal life of the community in which I live.
As appears from references I have already made to the use of dictionaries in the Terranora Lakes Country Club case and in Case Y14 (AAT Case 6793), I am not precluded by any rule of law from consulting dictionaries to assist me in the performance of that task and, as also already mentioned, the applicant did put before the Tribunal certain dictionary definitions of the words ``game'' and ``sport''. Mr Gorrell, who represented the applicant, relied heavily in his submissions on some of those definitions, particularly those which defined each of the words as an amusement or a pastime, in order to found a submission that the modelling of railways was both a game and a sport within the meaning of subparagraph 23(g)(iii). (I should mention that Mr Gibb also made reference to various of the definitions for his purposes.)
Mr Gorrell's submission appeared to me to amount in the end to this:- given that he was able to point to certain definitions of the relevant words in two reputable dictionaries, within which definitions, it would not be disputed, the activity of modelling railways falls, the Tribunal was compelled to find that the modelling of railways was both a game and a sport within the meaning of subparagraph 23(g)(iii).
I am unable to accept such a submission.
Falconer v Pedersen  VR 185 Anderson J was confronted with the question whether someone had trafficked in a drug within the meaning of a statute. At 187, he said,
``Mr. Alston [counsel for the appellant, who had been convicted below]... referred to a number of dictionaries which gave a variety of meanings to the verb `traffic'... I do not think one can select any one of the several meanings given in the various dictionaries and attribute to the phrase `traffic in' appearing in s. 32(a) that particular dictionary meaning, and leave it at that. One must interpret the phrase as used in its context, assisted as it may be, but not necessarily bound, by one of a variety of dictionary meanings.''
Those remarks, which are apposite here, were later quoted with approval by the Tasmanian Court of Criminal Appeal in
Burton v The Queen  Tas R 193, 197.
To somewhat similar effect, although said in the context of the construction of a will rather than of a statute, had been the reasoning of Turner V-C in
Grieves v Rawley (1852) 10 Hare 63, 65 [68 ER 840, 841].
Although the various dictionary definitions put before the Tribunal may be of assistance to me, I am not bound to give effect to any
ATC 160particular definitions of the relevant words which may appear in such dictionaries if such definitions are inconsistent with the accepted applications of those words, as I am acquainted with those applications, to situations in the normal life of the community in which I live. (Interestingly, it would appear that Lord Wilberforce, whose words in the Brisbane City Council case I have just paraphrased yet again, himself never used dictionaries for the purpose of determining the common understanding of words and shut his ears if they were referred to in court:- see Bennion, Statutory Interpretation (2nd ed, 1992), 849 n 8. Bennion (rightly, in my experience) characterises this approach as exceptional.)
Using my knowledge of the language and my acquaintance with accepted applications of the relevant words to situations arising in the normal life of the community in which I live, I have reached the conclusion in the present matter that the modelling of railways is neither a game nor a sport within the ordinary meaning of such words and is therefore neither a ``game'' nor a ``sport'' within the meaning of subparagraph 23(g)(iii).
My having expressed this conclusion, a question arises what, if anything, further it is appropriate for me to say of the matter.
In a somewhat similar situation, Samuels JA of the New South Wales Court of Appeal, with whose reasons Mahoney and Priestley JJA concurred, said in
Perrin v Peters (1983) 52 LGRA 198 at 200, ``I do not think it necessary to arrive at this conclusion, or indeed to support it, to attempt to pronounce some general definition of what the word... means''.
Samuels JA had there been concerned with the question whether a certain proposed development was a ``sportsground'' within the meaning of the relevant planning instrument and, having expressly adopted the approach taken by Lord Wilberforce in the Brisbane City Council case, had continued at 199-200,
``The approach, therefore, consistently with that advice, which I would make, is to consider what I would take to be the ordinary meaning of the word `sportsground' set in its context and in the light of any parts of the surrounding collocations of words which might lead to a different conclusion from that to which I would otherwise come. Applying that test, it seems to me that this [proposed development]... is not to be regarded as a sportsground and is not a place which would ordinarily be described by the use of that word.... [T]his is simply not the kind of place or site which would in my opinion ordinarily, according to the ordinary usage of language, be described as a sportsground.''
It was after making those remarks that Samuels JA referred to the lack of necessity for him to attempt to pronounce some general definition of what the word ``sportsground'' meant in order either to arrive at his conclusion or to support it.
I accept that, consistently with the approach taken in Perrin, it is unnecessary for me in the present matter to attempt a general definition of the words ``game'' and ``sport'' as they appear in subparagraph 23(g)(iii) in order either to arrive at or to support my conclusion that the modelling of railways falls within neither of them.
Further, not only is it unnecessary, it is in my view inappropriate. Such view is in accordance with high English authority. The position is summarised in 44 Halsbury's Laws (4th ed), ``Statutes'', paragraph 865, in which it is said (with citation of authorities (including
Brutus v Cozens  AC 854) which, in my opinion, justify the statement),
``Where the words used are familiar and are in common and general use in the English language, it is inappropriate to try to define them further by judicial interpretation and to lay down their meaning as a rule of construction, and the only question for a court is whether the words are apt to cover or describe the circumstances in question in a particular case.''
This approach has been expressly approved in Australia:-
Fennell v Wyong Shire Council (1975) 31 LGRA 164, 169 (New South Wales Supreme Court, Waddell J); I consider it as applicable to the Administrative Appeals Tribunal as it is to a court.
The reason for such an approach was given succinctly by Lord Reid in the Brutus case at 861, speaking of a statute which contained a word intended to have its ordinary meaning. He said,
``... we have been warned time and again not to substitute other words for the words of a statute. And there is very good reason for
ATC 161that. Few words have exact synonyms. The overtones are almost always different.''
I therefore go no further than expressing my conclusion that, based on my knowledge of the language and my acquaintance with accepted applications of the words to situations arising in the normal life of the community in which I live, the modelling of railways is neither a game nor a sport within the ordinary meaning of such words and is therefore neither a ``game'' nor a ``sport'' within the meaning of subparagraph 23(g)(iii). To adapt the words of Samuels JA in Perrin, it seems to me that this activity is not to be regarded as either a game or a sport and is not an activity which would ordinarily be described by the use of either of those words. This is simply not the kind of activity which would in my opinion ordinarily, according to the ordinary usage of language, be described either as a game or a sport.
There are two further matters which remain to be said.
First, I must point out that in Perrin's case, immediately after denying any necessity that he attempt to pronounce some general definition of what the word ``sportsground'' meant in order to arrive at or support his conclusion, Samuels JA did continue, ``However, without formulating any definition I would be inclined to think that for most purposes `sportsground' contemplates...''; he then proceeded to give his own ``fuzzy'' definition of the word (one which, incidentally, Priestley JA found too limiting (see 201)).
Unlike Samuels JA in Perrin, I consider that I should resist the temptation in the present matter, not only to attempt to state a definition, but also to state merely what I am inclined to think the words contemplate for most purposes. I should resist the latter temptation for the same reason as I should resist the former.
Secondly, although these reasons contain no attempted definition of the relevant words (except, of course, in so far as excluding a particular activity from their ambit may be said to be defining them), it is not as though we do not already have some assistance on the matter of the activities which the words do comprehend.
We are able to conclude from the Terranora Lakes Country Club case and from Case Y14 (AAT Case 6793) that three particular activities, namely clay pigeon shooting, deep sea fishing and motor cycle racing, are within the ambit of one of the relevant words, namely, ``sport''.
Further, in the Cronulla Sutherland Leagues Club case, referred to in my historical introduction, which case concerned the 1952 version of subparagraph 23(g)(iii), the Full Court of the Federal Court felt no difficulty in acting upon a concession by the Taxation Commissioner that rugby league football was a ``sport'' for present purposes (see 90 ATC 4215 at 4245-4246; (1990) 23 FCR at 119-120).
Finally, the historical material relating to Commonwealth laws containing references to games or sports, which material I have set out above, contains references to a considerable number of activities thought by its respective authors to be either or both of a game or a sport. Restricting oneself only to the extrinsic materials relating to the two versions of subparagraph 23(g)(iii), one finds references in the materials concerning the 1990 version to the activities of pony riding, fishing (not restricted to deep sea fishing), motor cycling (not restricted to motor cycle racing), chess, bridge, motor racing and mountaineering. So far as the extrinsic materials relating to the 1952 version of the subparagraph are concerned, one finds references to the activities of cricket, tennis and football (not restricted to any particular code of football). It is not difficult to conceive that a person charged with the task of determining whether any of the activities named in those extrinsic materials was either a game or a sport within the ordinary meaning of those words and therefore either a ``game'' or a ``sport'' within the meaning of the subparagraph would conclude that it was either one or both of them.
For the reasons given above, the decision under review is affirmed.