CHIEF COMMR OF STATE REVENUE v CITIVALE PTY LIMITED

Judges: Handley JA

Sheller JA
Davies AJA

Court:
New South Wales Court of Appeal

MEDIA NEUTRAL CITATION: [2000] NSWCA 111

Judgment date: Judgment given on 4 May 2000

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Sheller JA

16. I have had the benefit of reading in draft Handley JA's reasons for judgment. In
Public Service Association of New South Wales v Industrial Commission of New South Wales (1985) 1 NSWLR 627 at 650 Priestley JA summarised the reasoning in Rose v Hvric (1963) 108 CLR 353. His Honour said:

``The reasoning in Rose v Hvric involves the following sequence of steps. (1)(a) Exceptive words such as those used in s 74 have no legal effect beyond saving earlier

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ATC 4331

enactments which would otherwise be inconsistent with a later provision. (b) In regard to later enactments they have no legal effect at all. (2) Although the enactments in question were contemporaneous, the same result must apply in that the exceptive words in s 74 could have no legal effect. (3) `Expressly' in s 74 merely served to emphasize what is in any event the ordinary rule and cannot be understood as excluding enactments by implication, because the ordinary rule does not. (4) But there is a difference between inconsistency by implication and inconsistency by inference. This distinction is a distinction between (i) a later provision the meaning of which showed that a particular subject matter was intended to be dealt with by the provision, and (ii) a later provision which, although it would logically lead to the subject matter being dealt with in a particular way, did not itself, as a matter of its own meaning, say so. (5) Although there was inferential inconsistency between the Licensing Act , s 154 and the Justices Act , s 74, the meaning of s 154 was not inconsistent with s 74. The next step the draftsman might have been expected to take was not taken.

In reaching the conclusion in step (5) the High Court pointed out that both sections in question were expressed affirmatively and the question resolved itself into whether s 154 notwithstanding its affirmative form contained a negative implication precluding the application of the general provision of s 74 (see especially at 359-360).''

17. Of particular significance in the present case was the statement by the High Court in Rose v Hvric at 360 that there must be in the later provision an actual negation of the earlier.

``Ex hypothesi there is no negation in words, but there must be a negation as a matter of meaning. Lord Chief Baron Comyns expressed the point by saying that affirmative words do not take away a former statute but where they `in sense contain a negative': Com. Dig . tit. Parliament, R.25. Only where that occurs is the general test satisfied which has often by laid down in respect of repeal by implication, that the contrariety between the earlier and later enactments must be such that `effect cannot be given to both at the same time':
Kutner v Phillips [ 1891] 2 QB 267 at 272 ;
Hack v Minister for Lands (1905) 2 CLR 10 at 23-24 ; see generally
Hill v Hall (1876) LR 1 ExD 411 at 413-414 ;
Flannagan v Shaw [ 1920] 3 KB 96 .''

18. At 360 the High Court posed the question of whether in the legislatively contemporaneous particular provision there was a negative implication forbidding the imposition of a penalty in lieu of imprisonment for a second or subsequent offence permitted by the legislatively contemporaneous general provision. As Priestley JA pointed out in his summary, inconsistency by implication is enough, inconsistency by inference is not. The implication in the present case is drawn from s 7(1) of the Land Tax Management Act 1956 which levies the land tax on the land value of all land situated in New South Wales which is owned by taxpayers other than land which is exempt from taxation ``under this Act''. In my opinion, it is not possible to give this subsection effect ``according to its true construction'' ( Rose v Hvric at 357) consistently with the exemption to be found in s 651(1) of the Local Government Act 1919. Accordingly, the application of s 651(1) to land tax is precluded.

19. Substantially for the reasons given by Handley JA, I agree with the orders that his Honour proposes.