CAMPBELLS HARDWARE & TIMBER PTY LIMITED v COMMR OF STAMP DUTIES (QLD)

Members: Fitzgerald P
Davies JA

Fryberg J

Tribunal:
Queensland Court of Appeal

Decision date: Judgment given on 27 February 1998

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Fryberg J

In FC of T v Spotless Services Limited & Anor , ^[26] 96 ATC 5201; (1996) 71 ALJR 81. six High Court judges wrote: ^[27] (1996) 71 ALJR at p. 84.

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ATC 4283

``In his concurring judgment in Commissioner of Internal Revenue v. Brown , ^[28] (1965) 380 US 563 at 579-580. Harlan J said:

` [ T]he tax laws exist as an economic reality in the businessman's world, much like the existence of a competitor. Businessmen plan their affairs around both, and a tax dollar is just real as one derived from any other source.'

Later, the United States Supreme Court stated that it could not `ignore the reality that the tax laws affect the shape of nearly every business transaction'. ^[29] Frank Lyon Co v. United States (1978) 435 US 561 AT 580 . In Australia, State and Territory stamp duty laws have been a particularly significant factor in the shaping of business transactions.''

^[30] A recent example is provided by the transaction considered in Commr of Stamps (SA) v. Telegraph Investment Co Pty Ltd 96 ATC 4075 ; (1995) 184 CLR 453 .

Nonetheless, the shape of a transaction does not depend simply on the label which the parties put upon it. As Davies JA observes, its true nature depends rather on the legal character of the rights and obligations which are conferred and imposed.

In my view, the analysis of the transaction made by Byrne J at first instance was thorough and convincing [ reported at 96 ATC 4348]. I agree with his Honour's reasons for dismissing this application and those of Davies JA on the merits of the appeal.

That would be enough to dispose of the appeal, were it not for some events which have occurred since judgment was reserved. On 5 August 1997, the High Court gave judgment in Ha & Anor v. State of New South Wales & Ors . ^[31] 97 ATC 4674; (1997) 71 ALJR 1080. Although neither party had raised any constitutional question in the present case, either at first instance or on appeal, the Court wrote to the parties seeking an intimation of their views on whether it was necessary for a notice to be given under s. 78B of the Judiciary Act 1903 before proceeding further in the matter. In response to that letter, each party submitted that notices were unnecessary, as no matter in this case arose under the Constitution or involved its interpretation. The Court then, by majority, directed the Senior Deputy Registrar (Appeals) to write to the parties and advise that the Court had taken the view that they must either forthwith give a notice under s. 78B or elect to wait for the judgment in GE Crane & Sons Ltd v. Commissioner of Stamp Duties (Qld) . That was also a case involving s. 54A of the Stamp Act 1894 in which judgment had been reserved by this Court, albeit differently constituted. Each party responded by electing for the latter option.

On 12 November 1997, the Attorney-General for Queensland applied to the High Court for removal of part of the proceedings in Crane to that Court. That application was made because written submissions on behalf of the Crane interests had been made to the Court of Appeal raising the question of the constitutional validity of s. 54A. Kirby J ordered that the question whether s. 90 of the Constitution prevents s. 54A of the Stamp Act from validly applying so as to enable the exaction of duty in respect of an agreement for the sale of a business and in particular, in respect of goods the stock of the business, be removed into the High Court. ^[32] (1997) 72 ALJR 75. There it remains, awaiting a hearing.

Two days later, the respondent in the present appeal informed the Court that the matter had been reconsidered and it was now intended to issue a notice pursuant to s. 78B of the Judiciary Act 1903. I am not aware of whether such a notice has in fact been issued. On 25 November 1997, the respondent informed the Court that an application had been filed in the High Court to have the issue ``whether s. 90 of the Commonwealth Constitution prevents s. 54A of the Stamp Act 1894 (Qld) from validly applying so as to enable the exaction of duty in respect of an agreement for the sale of a business and, in particular, in respect of goods the stock of the business'' removed into the High Court pursuant to s. 40 of the Judiciary Act 1903. As far as I am aware, that application remains pending in the High Court. It is not known when it will be heard.

The Court now wishes to dispose of this appeal, and the parties have not objected to judgment being given, despite their earlier election to wait until the determination of the proceedings in GE Crane & Sons Ltd v. Commissioner of Stamp Duties (Qld) . The question therefore arises, what order should the Court make? Were I of the view that, because the pending application in the High Court has been made by the Attorney-General as well as by the respondent, it must inevitably succeed, ^[33] See Judiciary Act 1903, s. 40(1). I would agree with the order proposed. Unfortunately, that is not my view. As presently advised, I do not think that there is pending in this Court any cause (or part of a cause) ``arising under the Constitution or involving its interpretation''.

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ATC 4284

The cause before this Court is an appeal from a decision of the Chamber Judge to refuse an order for judicial review of a decision of the respondent. The parties have both submitted that no constitutional point arises in the cause. They have not raised any constitutional issue nor sought the opportunity to do so. While the respondent's attitude has presumably changed on the question whether the cause arises under the Constitution or involves its interpretation, neither that change nor the application to the High Court can create a point where none exists. In the nature of things, only the appellant could raise the point. For reasons of comity, it would be better for us to reserve judgment until the question is decided by the High Court. A judgment delivered now should dismiss the appeal with costs.