Collector of Customs v Perkins Shipping Pty Ltd

85 ALR 279
24 FCR 520, 1989 - 0223A - FCA; NT G5 OF 1988

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(Judgment by: Morling J, Olney J, Von Doussa J)

Between: Collector of Customs
And: Perkins Shipping Pty Ltd

Court:

Judges:
Morling J
Olney J
Von Doussa J

Subject References:
Customs and Excise

Hearing date: 8 February 1989
Judgment date: 23 February 1989

Darwin

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Judgment by:
Morling J
Olney J
Von Doussa J

This is an appeal from a decision of the Administrative Appeals Tribunal pursuant to s 44 of the Administrative Appeals Tribunal Act.  Such an appeal lies only upon a question of law. The Tribunal was constituted by the President, Hartigan J.

Before the Tribunal, the respondent sought the review of a decision made on 27 August 1986 by the Inspector of Diesel Fuel, Northern Territory, refusing a rebate of duty in respect of diesel fuel used in providing amenities for crew quarters on the vessel "Frances Bay".  On that date the Inspector decided that a rebate was not payable to the respondent under s 164 of the Customs Act 1901 or under s 78A of the Excise Act 1901. Jurisdiction was conferred on the Tribunal to review the Inspector's decisions by ss 273GA(1)(ha) of the Customs Act and by s 162C(1)(f) of the Excise Act.

Section 78A of the Excise Act is in identical terms to s 164 of the Customs Act which relevantly provides as follows:  

"164(1)

A rebate is, subject to subsections (2) and (3) and to such conditions and restrictions as are prescribed ..., payable to a person who purchases diesel fuel, being diesel fuel upon which duty has been paid, for use by him-

...

(b)

at residential premises in-

(i)

providing food and drink for;

(ii)

providing lighting, heating, air conditioning, hot water or similar amenities for; or

(iii)

meeting other domestic requirements of, residents of the premises;

..."

"Residential premises" is defined in s 164(7) of the Act in the following terms:  

"'Residential Premises' means-

(a)

premises used as a house;  or

(b)

other premises at which at least one person resides, but does not include-

(c)

premises used in the business of a hotel, motel or boarding house or a similar business;

(d)

premises used as a hospital or nursing home or as any other institution providing medical or nursing care;

(e)

premises used as a home for aged persons;  or

(f)

premises used as a boarding school;

..."

There was little, if any, dispute before Hartigan J. as to the relevant facts.  The following account of them is taken from his Honour's judgment.

The respondent operates four vessels, one of which is the Frances Bay, a multi-purpose roll-on roll-off ship.  The respondent also operates wharf facilities, marine workshops and a number of activities associated with shipping.  During the period from August 1985 to August 1986, the period to which the application to which a rebate related, the Frances Bay was engaged in both coastal and overseas shipping operations.  The vessel's typical coastal voyage was from Darwin to Gove to Groote Eylandt and back to Darwin. This voyage took about seven days.

The Frances Bay has thirteen cabins, two mess rooms, a common galley and laundry and storeroom facilities. The cabins are spread over three decks and constitute the officers' and crew's living quarters on the ship.

The electricity required to service the officers' and crew's living quarters and the associated amenities was generated by a generator attached to one of the several diesel engines located in the engine room of the vessel. For obvious reasons it was not generated within the confines of the accommodation area of the crew's quarters.

A crew of eleven was required on a coastal voyage.  All the crew were employed under the Self-propelled Barge and Small Ship Award, which requires, inter alia, that the employer provide accommodation for the crew whilst on a tour of duty.  If the crew could not be provided accommodation on the vessel they were housed in hotels at the employer's expense.  It was only rarely that the crew was housed ashore, on occasions such as when the ship was in dry dock or being sand-blasted.

When the vessel was in port in Darwin, Gove and Groote Eylandt the crew assisted in stevedoring operations.  Neither officers nor crew left the vessel when it was at Gove or Groote Eylandt.  When it was in Darwin those men who had homes there would go home if they were not required for other duties.  The majority of the officers generally stayed onboard in Darwin. Consequently, when the ship was in that port there were always officers and some crew on the vessel at all times.

A normal tour of duty for a crew on the Frances Bay was two months or longer, after which long shore leave could be taken in accordance with the award.  During the tour of duty the conditions of the award applied and accommodation and victualling was provided for the crew by the respondent. All the officers had their family homes outside the Northern Territory and lived onboard the Frances Bay during a tour of duty.  Even in the case of seamen who had family homes in the Darwin area, it was not usual for them during a tour of duty to pay other than fleeting visits (usually of a few hours) to their homes.  This was occasioned by the fact that the vessel usually came into Darwin with the tide and left on the next high tide. Unless the tides were such that a seaman could go on shore leave while the vessel was in harbour and the tides were such that he was able to remain at home to sleep, it was not possible for him to leave the vessel other than for short periods.  Apart from such short absences ashore, throughout the normal tour of duty of two months or longer the officers and crew ate, slept and worked on the vessel.

When the vessel was in port one engine ran continuously to provide power for the ship's services, including air conditioning, stoves, washing machines and electric lighting. Apparently the shore based electricity supply could not supply these services on the Frances Bay as it could for some of the other vessels owned by the respondent.

Diesel fuel is used in at least one of the ship's engines at all times to provide facilities necessary for the accommodation quarters on the vessel. The power generated is almost entirely consumed in respect of the accommodation areas. At the hearing before Hartigan J. it was agreed between the parties that if the decision under review were to be set aside the parties would be able to agree upon the amount of fuel in respect of which a rebate of duty should be allowed.

The fuel purchased by the respondent and for which it claimed a rebate was purchased in Singapore.  Upon arrival in Darwin a calculation was made of the fuel then onboard the vessel and the fuel was entered for home consumption and excise duty paid on it.  When the vessel left Australian waters a further calculation was made to establish how much of the fuel upon which duty had been paid had not been used and a calculation was made of the duty which had been paid on the unused fuel.  The duty on such fuel was apparently refunded to the respondent.  The effect of these arrangements was that when consumption of fuel in Australian waters had been determined excise was paid on the fuel so consumed prior to the vessel's departure from Australian waters.

The appellant submitted to the Tribunal that s 164(1) makes provision for rebates only in cases where persons purchase diesel fuel upon which duty has been paid prior to the time of purchase.  It was then submitted that as the respondent had not paid the duty on the subject diesel fuel until some time after it was purchased in Singapore it was not entitled to a rebate. This submission was rejected by the Tribunal and it was not pursued on the hearing of the appeal.

As we have observed an appeal lies from the Tribunal's decision only on a question of law.  Counsel for the respondent submitted that the Tribunal's decision did not raise any question of law.  He argued that the question whether the officers' and crew's living quarters on the Frances Bay were residential premises involved questions only of fact and degree.  However, we think a question of law is raised on the appeal.  The appellant's primary point is that the material before the Tribunal did not reasonably admit of any conclusion other than that neither the Frances Bay nor the officers' and crew's living quarters on it were residential premises within the meaning of s 164.  It is contended that the Tribunal arrived at a contrary conclusion by attributing an erroneous meaning to the definition of "residential premises". Whether a correct construction was placed on the relevant words of the Act, and if so whether there was factual material before the Tribunal which could reasonably admit of the conclusion reached, are we think, questions of law. See NSW Associated Blue-Metal Quarries Limited v. The Federal Commissioner of Taxation (1956) 94 CLR 509 at 511-512, Hope v. Council of the City of Bathurst (1980) 144 CLR 1 at pp 7-8 and Mahony v. Industrial Registrar NSW (1986) 8 NSWLR 1 at p 3.

The critical word in the definition of residential premises in s 164(7) on which the operation of both the inclusionary provisions of paras. (a) and (b) and of the exclusionary provisions of paras. (c) to (f) depends is "premises", an expression which is not elsewhere defined in the legislation. Counsel for the appellant contends that there is a necessary element of permanency of location inherent in the meaning of "premises" which is entirely absent in the case of a vessel plying between ports.

In popular usage the word "premises" commonly refers to houses and buildings, but it is a word capable of wide and flexible meaning depending on the context in which it is found. In Gardiner v. Seven Oaks Rural District Council [1950] 2 All ER 84 at 85 Lord Goddard C.J. said - "Premises is, no doubt, a word which is capable of many meanings.  How it originally became applied to property is, I think, generally known.  It was from the habit of conveyancers when they were drawing deeds of conveyance referring to property and speaking of 'parcels'.  They set out the parcels in the early part of the deed, and later they would refer to 'the said premises,' meaning strictly that which had gone before, and gradually by common acceptance 'premises' became applied, as it generally is now, to houses, land, shops, or whatever it may be, so that the word has come to mean generally real property of one sort or another.  There is no doubt that from time to time the word 'premises' has been given different meanings, either extended or more restricted." In Turner & Others v. York Motors Pty Ltd (1951) 85 CLR 55 Williams J., at p 83, observed in relation to the Landlord and Tenant Amendment Act (1948-1949) of New South Wales:  

"The word 'premises' is used in a popular sense and in this sense has a wide meaning.  It is wide enough to include bare land.  Its true meaning in any particular statute must be ascertained from the context in which it appears and from an examination of the scope and purpose of the statute as a whole."

And so it is in this case.  There is a plethora of cases where "premises" in different contexts has been construed.  Counsel drew attention to many of them, but as the decisions depend on the legislation in question they are of limited assistance. There are however dicta that indicate that in its popular or ordinary meaning "premises" may include a vessel or floating object.  In Andrews v. Andrews and Mears [1908] 2 KB 567 the Court of Appeal was considering the meaning of the words "on, or in, or about premises on which the principal has undertaken to execute the work ..." in the Workmen's Compensation Act 1906. In the course of his judgment Buckley L.J. said, at p 570:  

"In my opinion a street, the public highway, was not for this purpose 'premises' on which the work was to be executed.  The word implies some definite place with metes and bounds, say land, or land with buildings upon it."

Kennedy L.J., in his judgment at p 571 said:   

...I do not quite accept my brother Buckley's view about 'premises' being necessarily confined to land.  There are cases which indicate that 'premises' may have a wider meaning".

Buckley L.J. then added:  

"I quite accept the correction of Kennedy L.J., I did not intend in using the word 'land' to exclude a ship or anything of that kind."

In Darbyshire v. Boyd (1962) VR 609, in which Pape J. discusses many of the cases to which we were referred, it was held that a floating dry dock was "premises" according to the popular meaning of the word, and was within the meaning of the expression "enclosed or unenclosed ... premises" in s 106 of the Police Offences Act 1958.  Counsel for the appellant pointed out that it was a feature of the dry dock that it was moored to the land and rarely moved, so that there was a degree of permanency about its location.  This element of permanency of location was, however, not essential to the reasoning which led to the decision.  In the course of his judgment Pape J. said, at p 614:  

"I am by no means satisfied that ... a motor cruiser anchored in the bay would not be 'premises' within the section, compare Andrews v. Andrews (supra) ..."

Counsel for the appellant also referred to West Mersea Urban District Council v. Fraser [1950] 2 KB 119 where a houseboat was held to be "premises" for the purposes of the Water Act 1945, and therefore entitled to be supplied with water by the council. The reasoning of the Divisional Court laid stress on the need for a degree of permanency in the location of the houseboat for it to constitute "premises", but that requirement arose from the nature of the obligation which the Act placed on the council in relation to the laying of a supply pipe.  The decision does not support a general proposition that an element of permanency of location is a necessary feature of "premises".

In s 164(1) of the Customs Act, the notion of "residential premises" is introduced as a locational test in the prescription of eligibility for rebate. In the definition of "residential premises" it is the word "premises" which provides that locational reference.  If the terms of the definition are substituted for the words "residential premises" in s 164(1)(b), it becomes clear that to qualify for rebate, diesel fuel must be purchased for use at the "premises", that is at a place which has metes and bounds, within which the resident or residents of that place reside.  The evident intent of s 164(1)(b) is to limit the rebate to diesel fuel used in providing domestic requirements of the kind described in sub-paras.(i) to (iii) at the place where those who enjoy them reside.  There is nothing in the wording of s 164(1)(b) which requires that the premises have a fixed locality let alone a fixed or permanent location on dry land.

If a large ship were used as a dormitory for people engaged in shore based activities there is no reason evident in s 164(1)(b) why it would not be "premises" within the meaning of the definition of "residential premises". If a person who purchased diesel fuel for use at the vessel in providing domestic requirements of the kind specified to the people sleeping there claimed a rebate under s 164(1)(b), the question whether the fuel was for use "at residential premises" would turn not on whether the vessel constituted premises, but on whether the vessel was used as a house or had at least one person residing there, and whether the use constituted one of the uses excluded by para.(c). The element of continuity or permanency in the living arrangements of those who slept there would be a factor in deciding where they resided, and whether the vessel was used as a house:  See Levene v. Inland Revenue Commissioners [1928] AC 217 at 222, 225 and Hafza v. Director General of Social Security (1985) 6 FCR 444 at 449.  The following passage from the judgment of Williams J. in Koitaki Para Rubber Estates Ltd v. The Federal Commissioner of Taxation (Cth) (1941) 64 CLR 241 at 249 is particularly pertinent:  

"The place of residence of an individual is determined, not by the situation of some business or property which he is carrying on or owns, but by reference to where he eats and sleeps and has his settled or usual abode.  If he maintains a home or homes he resides in the locality or localities where it or they are situate, but he may also reside where he habitually lives even if this is in hotels or on a yacht or some other abode..."

So long as the requisite continuity of association between the vessel and a person existed to constitute the vessel his place of residence, it would be immaterial to the test imposed by s 164(1)(b) whether the "premises" were in a fixed location or mobile, or whether they were situated on land or floated about on the sea.

This view accords with the reasons of the Tribunal in Re Australian National Railways Commission and Collector of Customs, South Australia (Neaves J. (President), Sir E. Coates and Mr L.J. Cohn (Members), Canberra 28 November, 1984 No. 1889).  In that case the Tribunal held that railway camp trains, whilst at a camp site, which were used by railway workers for long periods of time were "residential premises" within the meaning of s 164.  The Tribunal said at p 18:

"Circumstances which give rise to the present dispute are quite exceptional and, indeed, sui generis.  In our opinion the camp trains, when located at a siding and being used by the employees of the applicant for eating, sleeping and other domestic purposes and, so far as the amenities allow, recreational purposes, may properly be described as a camp site where the employees live using that camp site as a base of operations for the performance of their daily work.  We think it is a permissible use of language to describe the camp site with the camp train located there as 'premises used as a house' or as 'premises at which at least one person resides' in the sense that for appreciable periods, including in some cases periods of very long duration, the camp train is the place where the employee lives and so 'resides ...'"

The real issue correctly identified by the Tribunal in that case was not whether the camp trains constituted "premises", but whether there was a sufficient continuity of association between them and the workers to fulfil the other requirements of the definition of "residential premises."

In our opinion the Tribunal did not fall into an error of law in holding that the word "premises" in the definition of residential premises could include the Frances Bay, or at least the crew's living quarters.  The Tribunal did not find it necessary to determine the physical boundaries of the "residential premises", saying that they were constituted either by the vessel itself or the crew's living quarters.  A possible construction of the definition of residential premises is that "premises" is used in each paragraph of the definition to describe the entire physical structure or area in or on which or part of which the particular activity described takes place. Another possible construction is that "premises" comprise only those parts of the structure or area in or on which the activity takes place, for example, under paras.(a) and (b), where the residents reside and carry out incidental domestic activities. In the present case it is unnecessary to decide which construction is to be preferred as it is immaterial to the outcome whether the whole vessel or only the crew's living quarters are regarded as the relevant premises.  On either construction the diesel fuel was used "at residential premises": Collector of Customs (Tasmania) v. Flinders Island Community Association (1985) 60 ALR 717 .

The appellant also contended that the officers and crew did not "reside" within the meaning of para.(b) of the definition on the Frances Bay as they each had shore based permanent homes either in Darwin or interstate.  In our view the Tribunal was clearly correct in assigning to the words "resides" and "residents" their ordinary meaning, and in holding that a person may have more than one place of residence:  (see Commissioner of Taxation v. Miller (1946) 73 CLR 93 and Hafza v. Director General of Social Services, (supra) at pp 449-500).  There was no error of law in this respect.  The evidence established that during the tours of duty the officers and crew lived on the vessel and rarely if ever went ashore.  Once it is conceded that a person may have two places of residence the conclusion of fact that the officers and crew resided on, and were residents of, the vessel, was inescapable.

Finally the appellant contended that as diesel fuel was purchased in Singapore for the general purpose of operating the vessel, it could not be said that it was purchased for use "at residential premises".  As we understand this argument, the complaint is that no particular part or quantity of the diesel fuel had been earmarked at the time of purchase as fuel for provision of the relevant amenities to the officers and crew. It is not clear that this point was a live issue before the Tribunal.  It was a point taken by the Inspector of Diesel Fuel when refusing the claim, but it seems to have been waived by the appellant before the Tribunal when it was conceded that the amount of fuel used for the provision of amenities could be agreed between the parties if the Inspector's decision were set aside.  Whatever the position, in our opinion the point is without substance.  No doubt the diesel fuel was purchased by the respondent with the intention that it would be used to operate the vessel, but that operation includes use for propulsion, for navigating and hoisting equipment, for the generation of power for use in the crew's living quarters, and so on.  The proportion of the fuel to be used in providing the amenities in the crew's living quarters, for which the rebate was later sought, was purchased for that purpose.

For these reasons we consider the appeal should be dismissed.