TELEGRAPH INVESTMENT CO PTY LTD & ANOR v COMMISSIONER OF STAMPS (SA)

Judges: King CJ
Prior J

Perry J

Court:
Full Supreme Court of South Australia

Judgment date: Judgment handed down 22 July 1994

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Perry J

Cruden Investment Pty Ltd (``Cruden'') is a company incorporated in Victoria. Telegraph Investment Company Pty Ltd (``Telegraph'') is a company incorporated in Queensland. By a deed made on 8 December 1987 (``the deed''), executed in New South Wales, Cruden transferred to Telegraph 41,968,750 shares in The News Corporation Ltd (``News''), a company incorporated in South Australia, in consideration of the sum of $671,500,000.

The share register of News was stored and maintained on a computer at the Adelaide office of Interstate Share Registry Pty Ltd (``ISR''). The share register listed members in alphabetical order, and indicated a capital city of a State or Territory of Australia with respect to each entry. It appears that the intention in doing so was to indicate on which branch register of the company a particular parcel of shares was said to be held.

At the time when the deed was executed, the name of Cruden was, with respect to the shares in question, designated on the register as a ``Darwin'' entry.

No party to the deed submitted it for assessment of duty in South Australia.

In 1988 authorised officers of the Commissioner of Stamps (``the Commissioner'') inspected instruments and records in the premises occupied by News at Adelaide. As a result, the Commissioner became aware of the existence of the deed. He made further investigations, which included the oral examination pursuant to s. 27a of the Stamp Duties Act 1923 (``the Act'') of an officer described as the Resident Secretary of News.

By letters dated 5 June 1989 the Commissioner gave notice to Telegraph and to Cruden that he had assessed the stamp duty payable with respect to the deed, and that the duty with which the instrument was chargeable was $4,029,000. In concluding that the deed was chargeable with duty in South Australia, it appears that the Commissioner formed the opinion, inter alia, that there were no branch registers within the meaning of the Companies (SA) Code kept by News; that there was no entry in respect of the shares in any branch register situated outside the State of South Australia; and that the deed related to shares which were property situated in South Australia within the meaning of s. 5b of the Act.

On paying the duty, Telegraph forwarded to the Treasurer a statement of grounds of objection to the assessment pursuant to s. 24(1)(a).

Pursuant to s. 24(2) the Treasurer confirmed the Commissioner's assessment. Thereupon, by a notice dated 22 September 1989, Telegraph and Cruden appealed to this Court against the assessment. The notice of appeal names the Commissioner as respondent, and seeks an order ``quashing or setting aside'' the assessment and an order for the repayment to Telegraph of the duty paid, together with other relief.

After the lodgment of the notice of appeal, the appellants required the Commissioner to sign a case for the purposes of the appeal. Their right to do so arises by reason of s. 24(4) of the Act, the terms of which I set out in due course.

In response to that request, in December 1989 the Crown Solicitor acting on behalf of the Commissioner prepared a draft case stated and forwarded to the solicitors for the appellants.

Thereafter, a considerable body of correspondence ensued between the Crown Solicitor and the appellants' solicitors, during the course of which the Commissioner prepared several more drafts of the Case Stated. In doing so, he either accepted or rejected various suggestions made by the solicitors for the appellants as to what should be set out in the drafts.

Eventually the Commissioner signed the Case Stated, dated 2 July 1993, which he filed in this Court.

The Case Stated does not include a reference to certain factual matters asserted by the appellants to be important for the purposes of determining their appeal. The Commissioner refused to incorporate a reference to those matters in the Case Stated despite submissions by the appellant. It is unnecessary for present purposes to go into the nature of the factual matters which the appellants contend ought to have been included.

In an endeavour to place before the Court evidence as to those matters, on 21 January 1993 the appellants took out an application seeking orders, inter alia:

``1. That the parties be at liberty to file such affidavits upon which they will rely at the hearing of the appeal deposing to the factual

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ATC 4469

circumstances of and surrounding the transfer by Cruden Investment Pty Ltd to Telegraph Investment Pty Ltd of a parcel of shares pursuant to a deed dated 8 December 1987, which deed the Commissioner of Stamps has assessed to stamp duty and is the subject of these proceedings.''

The application was supported by an affidavit of a member of the firm of solicitors acting for the appellants deposing to the history of the matter and in particular to the exchange of correspondence with the Commissioner of Stamps and the Crown Solicitor leading to the impasse which was reached over the contents of the Case Stated. The affidavit exhibited a copy of that correspondence and other relevant documents.

By order of a Master dated 8 September 1993, the application was referred to the Full Court for determination by it.

Both parties have now been heard on the application, but not on the question of the dutiability of the deed. The application was opposed by the Commissioner, who was represented by the Solicitor-General, on the ground that on the hearing and determination of the appeal it was not open to this Court to go beyond the facts in the Case Stated.

The argument on the application gives rise to the need to consider the precise nature of a Case Stated under the Act. As a starting point, it is convenient to set out the relevant parts of ss. 23 and 24 of the Act:

``23(1) The Commissioner may (whether requested to do so or not) express an opinion on either or both of the following questions:

• (a) whether duty is payable in a particular case;
• (b) what amount of duty is payable in a particular case.

(1a) The Commissioner may require a person requesting an opinion to furnish such information as the Commissioner thinks necessary for the purposes of the opinion and may refuse to give the opinion until that information has been furnished.

(1b) The Commissioner shall not express an opinion in respect of an unexecuted instrument.

(2)...

(3) If the Commissioner is of the opinion that an instrument is chargeable with duty, he shall assess the duty with which it is, in his opinion, chargeable...''

S. 24:

``(1) Any person who is dissatisfied with the assessment of the Commissioner may, on payment of duty in accordance therewith -

• (a) within fourteen days after the date of the Commissioner's assessment, forward to the Treasurer a statement of the grounds of his objection to the assessment;
• or
• (b) within twenty-one days after the date of the Commissioner's assessment, appeal to the Supreme Court.

(2) The Treasurer may, on receipt of a statement of grounds of objection, confirm or modify the Commissioner's assessment and, if the assessment is reduced, any excess duty paid by the objector will be refunded together with interest on the excess, from the date of payment of the duty, at the rate fixed under subsection (10).

(3) If upon the confirmation or modification by the Treasurer of the Commissioner's assessment the person is still dissatisfied, he may, within twenty-one days after the Treasurer's decision is communicated to him, appeal to the Supreme Court.

(4) For the purpose of any appeal to the Supreme Court under this section, the appellant may require the Commissioner to state and sign a case setting forth the question upon which his opinion was required and the assessment made by him.

(5) The Commissioner shall thereupon state and sign a case accordingly and deliver it to the appellant and, upon his application, the case may be set down for hearing in the Supreme Court.

(6) Upon the hearing of such a case (at least seven days notice of which shall be given to the Commissioner), the Court shall determine the question submitted and assess the duty, if any, chargeable under this Act.

(7)...''

S. 23 was amended by Act No 100 of 1986. Before its amendment in 1986, s. 23(1) read:

``Subject to any regulations made under this Act, the Commissioner may be required by any person to express his opinion with

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ATC 4470

reference to any executed instrument upon the following questions -

• (i) whether it is chargeable with any duty;
• (ii) with what amount of duty it is chargeable.''

It will be seen that with respect to that subsection, the change effected by the 1986 amendments was to confer a power upon the Commissioner to express an opinion upon the question what, if any, duty was payable ``whether requested to do so or not''. Before the amendment, he or she could only express such an opinion if so required by any person.

However, no corresponding change was made to s. 24(4). It might be thought that the words in that subsection

``... may require the Commissioner to state and sign a case setting forth the question upon which his opinion was required ...''

(my emphasis)

are not apt to apply to a situation in which under the amended s. 23 the Commissioner has expressed an opinion without having been requested to do so, which is the case here. However, the Solicitor-General did not contend that s. 24(4) was now only to be taken to be of application in those circumstances where the Commissioner is requested to express an opinion.

In my opinion, that was a proper concession. S. 24(4) and the Case Stated procedure should still be taken to be of application, whether or not the appeal relates to an assessment following a request made to the Commissioner for an opinion.

The right of the appellant to require the Commissioner ``to state and sign a case setting forth the question upon which his opinion was required'', and the obligation upon the Commissioner thereupon to ``state and sign a case accordingly'', appear in precisely the same words in the Stamp Duties Act 1886, which was the predecessor of the 1923 Act. The same words appear in the corresponding United Kingdom legislation. The Stamp Duties Act of 1870 (UK) (33 and 34 Vict. c. 97) provided for an appeal against the assessment of stamp duty to the Court of Exchequer, and provided further that for the purposes of the appeal the appellant might

``... require the Commissioners to state and sign a case setting forth the question upon which their opinion was required...''

(S. 19(1).)

S. 19(2) provided that the ``Commissioner shall thereupon state and sign a case accordingly'' and ss. (3) provided that on the hearing ``the Court shall determine the question submitted''. Those provisions are repeated with no change relevant to the question now at issue, in the Stamp Act (1891) (UK) (54 and 55 Vict. c. 39) (see s. 13).

The United Kingdom provisions were the subject of comment in
Ingram v IR Commrs (1986) Ch 585 . In the course of his decision in that case, Vinelott J said (591 ):

``If the assessment is challenged and the commissioners are required to state a case, they must set out in the case what they consider to be the facts and circumstances governing the liability of the instrument to duty. If the taxpayer disputes the accuracy or completeness of the facts and circumstances so stated, the dispute must be resolved by the court.

In the field of stamp duty, such disputes are very rare. There is only one reported case in which reference is made to the admission of oral evidence (see
Speyer Brothers v Inland Revenue Commissioners [1906] 1 KB 318 ) though it is said in Sergeant and Sims on Stamp Duties , 8th ed (1982) p. 65 that oral evidence was also admitted in
Holmleigh (Holdings) Ltd v Inland Revenue Commissioners (1958) 46 TC 435 . If the principles explained in the
Ramsay case [1982] AC 300 , the
Burmah case , 54 TC 200 and the
Dawson case [1984] AC 474 apply in the field of stamp duty there are likely to be cases in which complex and difficult issues of fact will have to be resolved by the court. I will come back to this point later.''

Vinelott J's observation that disputes as to the accuracy or completeness of the facts set out in the case stated are ``very rare'' echoes the experience of this Court. So far as I know, this is the first occasion upon which this Court has been asked to deal with the question whether or not it is open to a taxpayer to challenge the facts in the case stated.

In
O'Sullivan & Ors v Commr of Stamp Duties (Qld) 83 ATC 4684 ; [1984] 1 Qd R 212 , Matthews J, sitting in the Full Court of the Supreme Court of Queensland, after referring to

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ATC 4471

criticism of the procedures under the Queensland Act which are in pari materia to those in the South Australian Act, observed (ATC 4687; Qd R 215 ):

``Criticism has its origins, generally speaking, in two sources. First, as is made plain by sec. 24 of the Act, the case stated is the Commissioner's case. An appellant has no right, except perhaps by prerogative writ (cf.
Calthrop's case - unreported, Appeal No. 80 of 1982 ) to compel particular action by the Commissioner in respect of it; secondly, we think of a `special case', because it has traditionally been so, as a statement of facts in respect of which a question of law is posed. The argument is that the form of appeal allowed, therefore, does not admit of determination of... facts which may be necessary for the Full Court to enable it to decide the relevant issues. There is precedent for this in a matter before the Full Court when (admittedly by consent) one of its members, appointed as a referee for the purpose pursuant to the Judicature Act 1875, sec. 12 found a value before duty was determined (
Re Atkinson - unreported, Appeal No. 15 of 1964 ).''

In the same case, however, Williams J is reported as saying (ATC 4693; Qd R 225):

``It was argued that as a matter of statutory construction appeal by way of case stated pursuant to sec. 24 was the only procedure for reviewing the Commissioner's decision available. It was conceded that there were some unsatisfactory aspects of that procedure (for example, it was the Commissioner who was to state the facts on which the assessment was made and if the `taxpayer' was not happy with those facts there was nothing he could do about it) but such considerations do not entitle this Court to ignore clear statutory intent.''

In
Re Quetel Pty Ltd and Commissioner of Stamp Duties (Qld) 91 ATC 4771 ; (1991) 22 ATR 551 , a decision of the Full Court of the Supreme Court of Queensland, Demack J observed (ATC 4772-4773; ATR 553 ):

``It may be recalled that the original concept of a case stated was that the facts stated were admitted or agreed, and the only matters for determination were the points of law. If transactions as complicated as the ones involved here are to be determined, it may be necessary to have a consideration of the issues of fact by a single judge of this Court before the Full Court embarks upon the legal questions.''

In
Mack and Ors v The Commissioner of Stamp Duties (NSW) (1920) 28 CLR 373 , the question was as to the quantum of stamp duty chargeable on a deed. An appeal against the assessment by the Commissioner of Stamp Duties for New South Wales was brought to the Supreme Court of New South Wales. The appeal was supported by a case stated by the Commissioner. On further appeal to the High Court, the Court made some comments as to the status of the facts set out in the case stated. Knox CJ said (380 ):

``I should add that we were not asked to draw any inferences from the facts stated in the case, nor do I think we have any power to do so.''

Isaacs J said (381):

``The judgment appealed from was given upon a `case stated' under the provisions of sec. 18 of the Stamp Duties Act 1898 of New South Wales, as incorporated into sec. 54 of the Act. It cannot be too clearly understood that on a `case stated' the facts stated are to be taken as the ultimate facts for whatever purpose the case is stated. The Court is not at liberty to draw inferences unless that power is, by express words or by necessary implication, specially conferred by some enactment. The law is examined with considerable detail in the
Merchant Service Guild of Australasia v. Newcastle and Hunter River Steamship Co. [No. 1] 16 C.L.R. 591 , at pp. 622-624 . To the authorities there cited I add three:
Tancred v. Christy 12 M. & W. 316 ,
New Zealand Shipping Co. v. Stephens 24 T.L.R. 172 and
Usher's Wiltshire Brewery v. Bruce (1915) A.C. 433 , at pp. 472-473 . No power is contained in sec. 18 of the Stamp Duties Act to draw inferences, and the Court's only jurisdiction is to decide `the question submitted' on the basis of what the Commissioner states the facts to be. If, therefore, the matter depended on a conclusion of fact necessary to be arrived at either in addition or contrary to the facts as stated in the case, there would be no jurisdiction in the Court to determine the facts or to give any judgment other than to send the case back for definite statement by

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ATC 4472

the Commissioner as to the conclusion he arrived at.

In the present case, however, notwithstanding the insertion of some evidentiary facts, these may be entirely disregarded, because learned counsel for the Commissioner finally did not contend for any position that is not established by the terms of the documents themselves, regarded as real and operative instruments.''

Rich J said (384):

``I preface my judgment by stating that we are not entitled to draw inferences of fact, as the statute under which the special case is stated does not give the Court any power to do so.''

That dicta would, on the face of it, operate as a substantial hurdle to the success of the application now before the Court.

However, I have reached the view that Mr Emmett QC who appeared for the appellants is right when he submitted that the decision in Mack ought to be distinguished for present purposes, having regard to the terms of the New South Wales legislation in question in that case.

The case stated which was the subject of the decision in Mack was furnished pursuant to s. 18 of the Stamp Duties Act (1898) (NSW). S. 18 of the Act provided, in part, as follows:

``(1) Any person dissatisfied with the assessment of a Commissioner may, within fourteen days after the date thereof, and on payment of duty in conformity therewith, appeal against such assessment to the Minister, who may confirm or modify such assessment;...

If such person is still dissatisfied, he may, within twenty-one days after the Minister's decision is communicated to him, appeal to the Supreme Court, and may for that purpose require the Commissioner to state and sign a case setting forth the grounds upon which his assessment was made:

Provided that any person dissatisfied with such assessment may appeal to the Supreme Court in the first instance without any intermediate appeal to the Minister.

(2) The Commissioner shall thereupon state and sign a case accordingly and deliver the same to the appellant upon whose application such case may be set down for hearing in the Supreme Court.

(3) Upon the hearing of such case (due notice of which shall be given to the Commissioner) the Court shall determine the question submitted, and assess the duty chargeable under this Act, and also decide the question of costs.

(4)...''

It will be seen that in ss. (1) the taxpayer might ``require the Commissioner to state and sign a case setting forth the grounds upon which his assessment was made''. In ss. (2) the Commissioner is to ``state and sign a case accordingly''. In ss. (3) the Court is obliged to ``determine the question submitted''.

While it is true, as the Solicitor-General pointed out, that the High Court in Mack did not refer to the word ``grounds'' where it appears in s. 18(1), and spoke in general terms which did not seem to turn on the use of that expression, the fact remains that the use of that expression does serve to distinguish the section from the corresponding provisions to be found in s. 24 of the South Australian Act.

By an amending Act, being Act No 47 of 1920, the New South Wales legislature changed the procedure for a case stated by the Commissioner to enable the Court to try any issue of fact relevant to the determination of an appeal against an assessment. In the amending Act, the relevant section was s. 124 which provided in part:

``(1) Any person liable to the payment of duty in respect of any instrument... who is dissatisfied with the assessment of the Commissioner may... deliver to the Commissioner a notice in writing requiring him to state a case for the opinion of the Supreme Court.

(2)...

(6) If it appears to the court that the facts necessary to enable the question submitted to be determined are not sufficiently set forth in the case or that such facts are in dispute, the court may direct all such inquiries to be made or issues to be tried as it deems necessary in order to ascertain such necessary facts, and, if it deems fit, may amend the case. Any such inquiry may be made before a judge of the court or the Master in Equity, and any such issue may be tried by any such judge or a judge of any District Court sitting either with or without a jury as the court may direct.

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ATC 4473

(7) On the hearing of the case the court shall be at liberty to draw from the facts and documents stated in the case any inference whether of fact or law which might have been drawn therefrom if proved at a trial.

(8)...''

It will be seen that under s. 124(1) the taxpayer could give a notice in writing requiring the Commissioner to ``state a case for the opinion of the Supreme Court'', not a case as was provided in s. 18(1) of the repealed Act, ``setting forth the grounds '' upon which the Commissioner's assessment was made.

The word ``grounds'' has never appeared in the corresponding provisions in the United Kingdom or South Australia.

When, as was the case before the 1920 amendment, the New South Wales Commissioner of Stamps was obliged to set out the grounds upon which his assessment had been made, the grounds could not ordinarily be set out without indicating the conclusions of fact to which the Commissioner had come in determining the assessment.

On the other hand, while it has become customary for the Commissioner under s. 24 of the South Australian Act to set out in the case stated an extensive statement of relevant facts, strictly, the requirement of s. 24(4) of the South Australian Act is only to state and sign a case ``setting forth the question upon which his opinion was required and the assessment made by him''.

It follows that, in my opinion, the decision of the High Court in Mack's case, properly understood, does not bind the hands of this Court in construing the case stated procedure as it is spelt out in the South Australian Act.

The view that the decision in Mack's case is distinguishable for the purpose of determining the construction of s. 24 of the South Australian Act is supported by the decision of the Full Court of the Supreme Court of Victoria in
Cuming Campbell Investments Pty Ltd v Collector of Imposts (1940) VLR 153 . One of the questions for determination by the Court in that case was whether the appellant taxpayer or the Collector of Imposts were entitled to adduce evidence on the hearing of an appeal of an assessment under the Victorian Stamps Act 1928 to add to or contradict what was set forth in the case stated by the Collector of Imposts.

That legislation was in terms indistinguishable from the terms of s. 24 of the South Australian Act. S. 31(1) of the Victorian Act gave to the taxpayer the right to require the Controller of Stamps

``... to state and sign a case setting forth the question upon which his opinion was required and the assessment made by him.''

The Collector of Imposts was thereupon to ``state and sign a case accordingly'' (s. 33(2)), and upon the hearing of the case the Court was to ``determine the question submitted'' (s. 33(3)).

During the course of his judgment, O'Bryan J, with whom Lowe and Macfarlan JJ agreed, said (164):

``In my opinion the language of sections 32 and 33 of the Victorian Stamps Act is so different from the language of secs. 17 and 18 of the New South Wales Stamps Act 1898 that the actual decision in Mack's Case [1920] 28 C.L.R. 373 is distinguishable from the case under consideration. But although that is so, the generally accepted rule appears to be that when a statute has provided for a hearing in a Court by way of case stated, the Court is confined to the facts stated unless a power is conferred to go outside the facts stated by express enactment or by a necessary implication in the statute - see per Isaacs J. [1920] 28 C.L.R. 373, at 381.''

He went on to say:

``There is no express provision in the Stamps Act that the Court may travel outside the stated case. Whether the functions of the Court to determine the questions submitted and to assess the duty do necessitate the calling of evidence depends in my opinion upon the meaning of the words in section 33 (1), `state and sign a case setting forth the question upon which his opinion was required and the assessment made by him'. If these words mean that all the Collector is required to do is to set forth the question upon which his opinion was required and the assessment made by him, the Court would be unable to perform its function under sub-section (3) unless it heard evidence. If, on the other hand, sub- section (1) requires the Collector first to state a case, i.e. , to state the facts upon which his opinion was based and his...

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ATC 4474

assessment, the Court could on those facts, when fully and properly stated, proceed to perform its function under sub-section (3) without hearing any evidence, but upon the basis of the facts as so stated.

With some hesitation I think the meaning of sub-section (1) is that the Collector is required first and primarily to state a case, i.e. , to state the facts upon which his opinion was based and the assessment made. The expression `state a case' is a well-known one and should in this section be given its ordinary meaning.''

O'Bryan J went on to acknowledge that the result is an ``unsatisfactory one'' (165).

Lowe J, in his short concurring judgment, agreed with O'Bryan J. He observed (159-160):

``I do not regard the position so disclosed as a satisfactory one for the taxpayer and the Legislature may now think it desirable to empower the Court which is to assess the duty with which it thinks an instrument chargeable also to investigate for itself the facts upon which its opinion depends. The Legislature of New South Wales has so acted ( Stamp Duties Act 1920, sec. 124(6)). But as the legislation now stands I am unable to resist the implication of the phrase `state a case' which has so often and uniformly been given by the Courts. For the rest I prefer to reserve my opinion whether it is open to the taxpayer to obtain a decision of the Court on questions of fact by proceedings other than those taken in the present case.''

A decision of the Full Court of the Supreme Court of another State must be treated by this Court with respect. But in my opinion, while the criticism of the traditional construction of the legislation, and the view that it is distinguishable from the legislation in question in Mack's case should be accepted, the actual decision of the Supreme Court of Victoria in Cuming Campbell Investments Pty Ltd is not a decision which should be followed in this State in the construction of the corresponding provisions of the South Australian Act.

There are a number of considerations which lead me to the view that the South Australian Act should be construed in a manner which would allow the Court in an appropriate case to hear further evidence on the appeal.

The first is that the wording of the Act is indistinguishable from its United Kingdom predecessor, and it is clear from Ingram v IR Commrs (supra) that although disputes as to facts are rarely encountered in the United Kingdom, when they are, there is precedent for the admission of oral evidence.

The second is that although the procedure is sometimes described as an appeal by way of case stated, in my opinion, that is a misnomer. The appeal is by notice of appeal lodged by the taxpayer under s. 24(3). The case stated is supplied at the request of the appellant in aid of the appeal. The procedure, therefore, is different from other situations in which there is a case stated or question reserved from a court or tribunal to a higher court or tribunal such as, for example under s. 49 of the Supreme Court Act 1935, s. 350 of the Criminal Law Consolidation Act 1935 and s. 102 of the Industrial Relations Act (SA) 1972.

In such cases the law is clear, as stated, for example, in Mack's case (supra) and in Merchant Shipping Guild of Australasia v Newcastle and Hunter River Steamship Co [No 1] (1913) 16 CLR 591 (per Isaacs J at 621-622):

``... facts must be stated, not evidence of the facts, however cogent and convincing. Ultimate facts only are to be stated, not primary or evidentiary facts.

So firmly has the Court held to this position, namely, to answer questions of law only and not questions of fact, that it has always refused to draw any inferences of fact from other facts stated.''

True it is that Rule 72.06 now permits the Court on the hearing of a case stated to draw inferences of fact. But I am inclined to think that the power given by that rule should not be used in the ordinary class of case stated, which should be confined to a pure question of law.

However, in the case of stamp duty appeals, if this Court was bound to accept statements of fact contained in the case stated, a most unsatisfactory result would ensue. Disputes as to the accuracy or adequacy of the facts set out in the case stated would remain unaddressed. This Court would be powerless to review the process by which the Commissioner had reached a view of the facts, or to remit the case to the Commissioner for reconsideration by him or her.

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ATC 4475

The Commissioner's powers in investigating the facts are essentially inquisitorial. While no doubt he or she must proceed in accordance with the dictates of procedural fairness, it cannot be imagined that the administrative function which he or she performs is likely in every case to give adequate opportunity for a full consideration of the complex factual questions likely to be bound up with commercial transactions which find expression in an instrument brought forward for the assessment of duty.

The unsatisfactory results which follow from the traditionally accepted concept of the nature of a case stated when applied to a stamp duty appeal have been emphasised in such cases as
Commercial Banking Co of Sydney Ltd v Comptroller of Stamps (1965) VR 297 per Smith J at 303 and
In re Turner and Chadderton's Transfers [1957] VR 641 per Adam J at 649 .

The history of the preparation of the case stated in this matter illustrates the point. While the Commissioner was prepared to entertain submissions from the representatives of Telegraph and Cruden as to the contents of the case stated, he was not prepared to incorporate any statement of fact, or reference to evidence which he thought might be inconsistent with the conclusion which he had reached. While there can be no suggestion that he was not acting within the scope of what he considered to be the appropriate discharge of his duties, such a procedure resulted in an entirely unsatisfactory vehicle upon which, if the Court was to be limited to the case stated, to determine the appeal.

In my opinion, for the reasons which I have given, this court is not so limited. It should allow an appropriate procedure suited to the circumstances of the case for the determination of any factual disputes, and for the presentation of evidence by either party upon any factual matter relevant to a reconsideration of the assessment.

An appeal of the kind now in question is an appeal by way of rehearing, to be heard by a single Judge (R 97.04(1) of the Supreme Court Rules). Although the Rules of Court cannot affect the construction of the Act, if it is accepted that the Act is to be construed in the way I have indicated, the rehearing should be a hearing de novo (see
Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 ).

The application before the Court seeks an order for leave to file affidavits on either side. Before reading the draft reasons of His Honour the Chief Justice, I had thought that the appropriate order for this Court to make was to refer the application to a Master to give directions as to the best method of defining the areas of disputed fact for the purpose of resolving the appeal. However, I am happy to agree with the terms of the order proposed by the Chief Justice, which would involve the parties filing affidavits at this stage, reserving to a Master the ability to give further directions in the light of the affidavits.