Australian Airlines Limited v Commissioner of Stamp Duties for the State of Queensland

[1988] HCATrans 130

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No BS0 of 1987

B e t w e e n -

AUSTRALIAN AIRLINES LIMITED

Appellant

and

COMMISSIONER OF STAMP DUTIES

FOR THE STATE OF QUEENSLAND

Respondent

MASON CJ
BRENNAN J
DEANE J
DAWSON J

GAUDRON J

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TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON MONDAY, 27 JUNE 1988, AT 4.18 PM

Copyright in the High Court of Australia

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MR I. GZELL, QC:  If the Court pleases, I appear with my

learned friend, MR J. DOUGLAS, for the appellant.

(instructed by Messrs Flower & Hart)

MR R. HANSON, QC:  Your Honours, I appear with my learned

friend, MR M.W.D. WHITE, for the respondent.

(instructed by the Crown Solicitor for Queensland)

MASON CJ:	Mr Gzell.
MR GZELL:	If the Court pleases, my learned friends have an

application but before that there is something that I

ought to draw to Your Honours' attention and that is that

there has been a change in the status and name of the

appellant. The appellant was incorporated under an

Act of the Commonwealth Parliament in 1945 as a

~	corporation under that Act. Quite recently the AUSTRALIAN
AIRLINES (CONVERSION TO PUBLIC COMPANY) ACT 1988 was passed.
Under that Act the appellant was converted to a public company limited by shares under the Commonwealth
COMPANIES ACT and was, from the date of commencement
of the relevant provision - ceased from that date to be
established for a public purpose or to be a public authority or instrumentality or agency of the Crown. But that Act of 1988 provided two things relevant to
this statement to Your Honours and that is that firstly
the Act provided that the name change should be deemed to have been made under the COMPANIES ACT and
section 65(5) of the COMPANIES ACT provides that:

A change of name of a company pursuant to

this Act does not operate -

(a) to create a new legal entity;

(b) to prejudice or affect the identity of the body corporate constituted by the company or its continuity as a

body corporate;

(c)	to affect the property, or the rights or obligations, of the company; or
(d)	to render defective any legal proceedings

and any legal proceedings that could have by or against the company

been continued or commenced by or against the

company by its former name may be continued

or commenced by or against it by its new name.

Together with that there was a further provision

in the 1988 Amendment Act which provided that section 25B

of the ACTS INTERPRETATION ACT ought not to be altered

in its operation, and that section provides in

subsection (2), that:

Where an Act alters the constitution of a

body (whether or not the body is

intention appears - incorporated), then, unless the contrary

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(a)	the body continues in existence as newly
constituted so that its identity is not affected;
(b)	the alteration does not affect any functions, powers, property, rights, liabilities or obligations of the body;
(c)	the alteration does not affect any legal or other proceedings instituted or to be

instituted by or against the body, and any

legal or other proceedings that might have

been continued or cormnenced by or against the body as previously constituted may be continued or cormnenced by or against the

body as newly constituted -

and I do not think I need bother Your Honours with the

final paragraph of that matter.

The name by which the corporation is now incorporated

under the COMPANIES ACT is Australian Airlines Limited.

MASON CJ: Yes, Mr Gzell. Mr Hanson, do you want to say anything

about this amendment?

MR HANSON:  No, Your Honour, we do not.

MASON CJ: Very well, the proceedings will be amended by

substituting the name "Australian Airlines Limited" for

the old name of the appellant, "Australian National

Airlines Cormnission". Yes, Mr Hanson?

MR HANSON:. Your Honour, we have a motion to rescind special

leave. Could I read the notice of motion filed on

21 June 1988 and the supporting affidavit of Victor James

Taaffe filed on that date?

MASON CJ:  Why should the Court revoke the grant of special

leave merely because the Government has seen fit to

introduce legislation and to have legislation enacted

after the grant of special leave?

MR HANSON:  Your Honour, it now becomes, in our submission, a

fight between the Queensland stamp duties authorities

and what was, until April of this year anyway, a

Cormnonwealth statutory authority, over $141,000. The Act has been amended whereby this particular document would be caught and made liable under the amendments so

this decision no longer has any application in Queensland.

It may have application in other States if the legislation

is seen to be sufficiently similar but in Queensland it cannot have any further application. Mr Taaffe swears, as far as he knows, there are no similar cases awaiting assessment or awaiting determination in the Full Court.

So, it has no further application in Queensland, Your Honours.

Those are the reasons.

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MASON CJ:  Now, I take it, from what you say, you put some

emphasis on the fact that it is a government authority

that is the appellant.

MR HANSON:  That was something we relied upon when we drew our

material. We were not then aware, of course, of what

Mr Gzell has just said that the appellant has now changed

its status and, I suppose, from 30 April it is not true

to call it a mere government authority. However, we

still rely upon the same point that there is no evidence

that shares have been issued and that the public have now

become shareholders so that the burden of this case will

fall anywhere other than upon the public purse until this

case is determined. In the future, I expect, shares will

be issued and the public will participate but there is no

evidence that that will happen by the time this case is

determined, so, the burden will fall where it was at the

outset. It is a fight between two governments over

$140,000.

MASON CJ: Yes. Yes, Mr Gzell.

MR GZELL:  If the Court pleases, we rely upon the affidavit

that supported the application for special leave. I

understand that those documents are no longer with the

Court so we have copies of the application together with

the affidavit in support. In addition to that,

Your Honours, there was reference made - - -

BRENNAN J:  Mr Gzell, how did an instrumentality of the Commonwealth

become liable to State stamp duty?

MR GZELL:	Your Honour, I was about to say that there was an indemnity given in respect of the incidence of stamp duty
but that indemnity was the other way around. Clearly
enough, Your Honour, the party, as it was previously
constituted, was one of the signatories to a document
which would otherwise have been exigible. It was stamped.
The parties to the instrument are liable, all other things
being equal, to the payment of that duty. The point does
not seem to have been taken. Certainly, the case stated
proceeded upon the basis that the appellant was exigible
to duty if the instrument was dutiable.

MASON CJ: What does the Act provide in relation to instruments

to which the Crown is a party? Most Commonwealth statutes

provide for an immunity or an exemption from duty.

MR GZELL:  The charging section in the Act is section 4.

BRENNAN J: That is of the STAMP ACT you are speaking of?

MR GZELL:  Yes, I am talking about the STAMP ACT.

MASON CJ: Well, first of all, deal with that Act. What

does it - - -?

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MR GZELL:  And there is nothing, on the face of section 4,

which creates an exemption in favour of the Commonwealth

or an instrumentality thereof, as one sees on a quick

glance of it. I am not aware that there is any

specific provision - - -

MASON CJ: But it would exempt, of course, instruments to which

the Crown in the right of Queensland was a party.

MR GZELL:  I think that is right, Your Honour.

MASON CJ: What about the AUSTRALIAN NATIONAL AIRLINES ACT

or whatever it is now called?

MR GZELL:  Your Honour, the amending Act does not contain a

provision but the original Act of 1954 may well have

contained such a provision. Your Honours, that issue

has taken me a little by surprise.	I wonder if we might
have the indulgence of researching it overnight	and

making submissions to Your Honours tomorrow morning on

it?

MASON CJ: Yes, certainly. But you might return to the submission

you. were about to make before we interrupted you, that is,
your response to the application for revocation of the

grant of.special leave.

MR GZELL:  Thank you, Your Honour. In addition to the affidavit

that was read on the application for special leave, there

were noted in it a number of provisions in the qther

stamp duty legislations of the States and Territories

which, in our respectful submission, are similar and

we hand to Your Honours copies of the relevant legislation

in .the o.ther States. There have been some amendments in

some States since the matter was last before the Court.

We have given Your Honours both the legislation as it

stood in July last year and as of now. Basically,

Your Honours, may I simply say this, that in relation to

the argument that special leave ought to be rescinded

because it is a dispute between a Commonwealth statutory
body and .the Commissioner of Stamp Duties of a State

and that the amount is but $141,600, that argument could

have been raised on the hearing of the special leave

application. It was not. A failure to raise an argument

ought not to be given great weight in a subsequent

application to rescind and, in any event, it is partially

overtaken by the change of status of the appellant.

As to the o.ther two matters, that is, that the

State has amended section 54 and that, according to the

Commissioner, there are no further appeals pending or other instruments that have been lodged with him for

stamping: firstly, if a matter is of sufficient importance

to warrant a grant of special leave, in our respectful

submission, the subsequent action of the legislature in

rendering the matter inoperative for the future ought not,

generally, to entitle a party to an order for rescission.

If that were not so, in our submission, there would be an

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unwarranted intrusion of legislative function to

judicial function. And, in any event, the Queensland

legislature seems to have regarded it as of sufficient

public importance to pass the amendment notwithstanding

the Full Court decision in favour of the Connnissioner

at the time.

In this case, the matter remains of significance in other States and Territories and I can take Your Honours

to the relevant provisions in a moment in the other

States and Territories, suffice it to say that except

for Victoria,which does not stamp on the basis of an

agreement for sale but simply stamps on the basis of a

conveyance, all other States and Territories still maintain

a provision similar to the pre-1988 position in

Queensland, that is, following the English Act of 1891

that ad valorem duty is exacted on the contract for sale

and subject to the operation of provisions protecting

against a subsale, two things follow: one is that if a

conveyance follows in terms of the contract for sale

it is free of duty and, secondly, if the contract of sale

is rescinded, duty is either not claimed or if it has

T9	already been paid, is to be refunded. That is the
structure of the English Act. It remains the structure
of the Acts of the other States and Territories subject to a differing treatment in relation to a protection against subsales, and I will take Your Honours to those
provisions in a moment. Thirdly, the case has significance
beyond the stamp duty legislation in respect of the
proper analysis of novation and the judgments of the
Court of Appeal appear to have taken the view that if an
original contract, albeit discharged and a new contract
substituted for it, is the process of a specific provision in the original contract allowing for that to happen. One
does not have rescission and one does not have novation.
That consequence is, we would submit, important in respect
of the proper understanding of rescission and novation. As was pointed out in the affidavit in support of the special
leave application there is finally no decided authoritative
case on the meaning of "rescission" in any of those stamp
duty legislations; the closest case to it, VICKERY V WOODS,
turns on a lack of evidence in the end.

Now, Your Honours, that, in brief, is our answer

to the application. I can take Your Honours to the

relevant provisions in the Stamp Acts of the other

States and Territories if Your Honours would wish me to

do so.

MASON CJ: I do not think there is any occasion for you to do that,

Mr Gzell.

Now, Mr Hanson, you might reply to the argument

that has been presented by Mr Gzell. He still has the

opportunity of giving us the information in response to

the questions that were put to him earlier.

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MR HANSON:  Your Honours, the only reply we would seek to make

deals with the differences between the legislation

in other States and the Queensland legislation.	Do
Your Honours want me to go through that exercise
now? It is possibly a little lengthy.

MASON CJ:  No, I do not think there is any occasion to do that

now.

MR HANSON:  Well, could I simply say that a close examination

of the legislation both then and since in other

States points up differences. The word, "rescind,"

is certainly used in, I think, almost every

State but in different contexts with different

provisions, so the decision is not likely to be of

great value in other jurisdictions.

BRENNAN J:  Mr Hanson, if special leave were rescinded, that

would leave you in possession of the duty.

MR HANSON:  With the duty, Your Honour.

BRENNAN J:  Yes. That is a position to which you propose to

adhere; is that correct?

MR HANSON:	Yes.
BRENNAN J:	Yes, thank you.
MASON CJ:	The Court will now adjourn and will resume at

10 d clock tomorrow morning.

AT 4.37 PM THE MATTER WAS ADJOURNED

UNTIL TUESDAY, 28 JUNE 1988

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