Drake Personnel Ltd v Chief Commissioner of State Revenue
[1999] NSWSC 962
•22 September 1999
Reported Decision: [1999] 99 ATC 5018
[1999] 42 ATR 782
New South Wales
Supreme Court
CITATION: Drake Personnel Ltd v Chief Commissioner of State Revenue [1999] NSWSC 962 CURRENT JURISDICTION: Administrative Law FILE NUMBER(S): 30073/97 HEARING DATE(S): 13 September 1999 JUDGMENT DATE:
22 September 1999PARTIES :
Chief Commissioner of State Revenue
Drake Personnel Limited
(Plaintiff)
(Defendant)JUDGMENT OF: Master Harrison
COUNSEL : Mr S Gageler with Mr P Fraser
Dr H Sorensen
(Plaintiff)
(Defendant)SOLICITORS: Ms Fiona Crosbie of
Ms Fiona Kerr
Firmstone Feil
(Plaintiff)
Crown Solicitor's Office
(Defendant)CATCHWORDS: Dismissal of summons; Summary judgment ; Appeal; Pay-roll tax ACTS CITED: Pay-roll Tax Act 1971
Pay-roll Tax Assessment Act 1971 (WA)
Sales Tax Amendment Act (No 1) 1930CASES CITED: Air Services Australia v Zarb (unreported, Rolfe AJA, 26 August 1998)
Dey v Victorian Railway Commissioners (1948-49) 78 CLR 62
General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125
Webster & Anor v Lampard (1993) 177 CLR 598
Layala Enterprises Pty Limited (in Liq) v FC of T 98 ATC 4858
Witney v Commissioners of Inland Revenue [1926] AC 37
Precision Pools Pty Ltd v Commissioner of Taxation & Anor; Qld Pool & Spa Construction Pty Ltd v Commissioner of Taxation & Anor (1992) 37 FCR 554
Chippendale Printing Co Pty Ltd v Commissioner of Taxation & Anor (1996) FCR 374
M R Hornibrook (Pty) Ltd v The Federal Commissioner of Taxation (1939) 62 CLR 272
Jax Tyres Pty Ltd v Commissioner of Taxation (1986) 5 NSWLR 329
Drake Personnel Limited & Ors v Commissioner of State Revenue (VIC) 98 ATC 4915.DECISION: See para 32
16
THE SUPREME COURT
OF NEW SOUTH WALES
ADMINISTRATIVE LAW DIVISIONMASTER HARRISON
WEDNESDAY, 22 SEPTEMBER 1999
30073/97 - DRAKE PERSONNEL LIMITED v
JUDGMENT (Dismissal of summons; Summary judgment;
CHIEF COMMISSIONER OF STATE
REVENUEAppeal; Pay-roll tax)
2 The plaintiff by summons filed 16 July 1997 seeks pursuant to s 32(8) of the Pay-roll Tax Act 1971 (the Act) to appeal the decision of the defendant dated 17 March 1992 (the objection decision) whereby the defendant disallowed the plaintiff’s objection (the objection) dated 9 November 1992 against the defendant’s refusal to grant a refund of pay-roll tax (the refund) to the plaintiff. The plaintiff seeks an order that the objection decision be set aside and that the objection be allowed and the refund made. The grounds of appeal are set out in the summons and are:
1 MASTER: By notice of motion filed 24 May 1999 the defendant seeks that the plaintiff’s summons filed 16 July 1997 be dismissed pursuant to Part 13 r 5 of the Supreme Court Rules. The defendant relied on the affidavit of David Anthony Martin sworn 24 July 1999. The plaintiff did not rely on any affidavit evidence.
(1) Payments made by the plaintiff to persons who provide temporary assistance to the plaintiff’s clients are not wages for the purposes of the Act.(2) The contractual arrangements between the plaintiff and persons who provide temporary assistance to the plaintiff’s clients do not fall within paragraphs (a), (b) and (c) of s 3A(1) of the Act.
(3) Alternatively, if the contractual arrangements between the plaintiff and persons who provide temporary assistance to the plaintiff’s clients fall within paragraphs (a), (b) or (c) of s 3A(1) of the Act (which is denied), then the pay-roll tax assessed is excessive in that it includes amounts paid to these persons in circumstances where sub-paragraphs (e)(iii) of s 3A(1) of the Act operate to exclude liability in respect of such payments.
(4) The plaintiff is entitled to a refund of all, or part of the pay-roll tax it has paid to the defendant.
3 It is common ground that the appeal raises the issue of the plaintiff’s liability to pay pay-roll tax.
4 The following facts are not disputed.5 Part 13 r 5 of the Supreme Court Rules (SCR) refers to summary judgment. It states:
(1) The relevant business of Drake is to provide to its clients the temporary services of people (temporaries) who have indicated to Drake that their services are available to be so provided.(2) On 30 June 1992 the plaintiff requested a refund of pay-roll tax totalling $392,682.56 for the year ended 30 June 1992. An annual reconciliation to 30 June 1992 was furnished pursuant to s 13(1)(b) of the Act.
(3) On 11 September 1992 the defendant wrote to Drake advising that its application for refund had not been approved.
(4) On 9 November 1992 a notice of objection was issued by the plaintiff. The notice asserted that the taxpayer is not an employer of the contractors and that the contractors are not employees of the taxpayer. Hence the amounts paid by the taxpayer to the contractors do not constitute wages. The plaintiff asserted that it was entitled to a refund of the overpayments. It is common ground that the grounds of objection raise the plaintiff’s liability to pay pay-roll tax.
(5) On 9 March 1993 the defendant wrote to the plaintiff advising of its intention to issue a s 18 assessment for unpaid pay-roll tax for the financial years ended 1987, 1988, 1989, 1990, 1991 and 1992.
(6) On 17 March 1993 the defendant wrote to the plaintiff advising that each ground of objection had been disallowed and gave reasons for doing so.
(7) On 5 April 1993 an assessment notice pursuant to s 18 of the Act issued. The notice of assessment sought payment of the sum of $170,762.34 by 27 April 1993 (Ex A).
(8) On 7 April 1993 the defendant wrote to the plaintiff advising that a s 18 assessment had been issued in respect of the period June 1992.
(9) On 7 April 1993 the plaintiff wrote to the defendant requesting approval to appeal to the Supreme Court against the decision on the objection.
(10) Eventually on 10 June 1997 (over 4 years later) the plaintiff again wrote to the defendant requesting approval to appeal to the Supreme Court against the decision.
(11) On 4 July 1997 the defendant wrote to the plaintiff advising that approval had been granted for the plaintiff to lodge an appeal to the Supreme Court pursuant to s 32(8) of the Act.
(12) On 16 July 1992 the summons was filed.
(13) On 24 May 1999 the motion was filed.
“(1) Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings -
(a) no reasonable cause of action is disclosed;
(b) the proceedings are frivolous or vexatious;
or
(c) the proceedings are an abuse of the process of the Court,
the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.”
6 In a recent decision in Air Services Australia v Zarb (unreported, 26 August 1998) Rolfe AJA found it useful to remind himself of the highly demanding test imposed on a party seeking summary judgment. His Honour referred to Dey v Victorian Railway Commissioners (1948-49) 78 CLR 62, General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 and Webster & Anor v Lampard (1993) 177 CLR 598. I have reproduced some of the passages quoted.
7 In General Steel Barwick CJ, who heard the application alone, referred to Dixon J’s passage in Dey at p 130. He then stated:8 Barwick CJ also said:
“Although I can agree with Latham CJ in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff’s claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.”
9 More recently in Webster, Mason CJ, Deane and Dawson JJ reinforced the rigorous testing stating, at p 602:
“It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of cause of action - if that be the ground on which the Court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; ‘so obviously untenable that it cannot possibly succeed’; ‘manifestly groundless’; ‘so manifestly faulty that it does not admit of argument’; ‘discloses a case which the Court is satisfied cannot succeed’; ‘under no possibility can there be a good cause of action’; be manifest that to allow them’ (the pleadings) ‘to stand would involve useless expense.”
10 According to Rolfe AJA in Zarb:
“The power to order summary judgment must be exercised with ‘exceptional caution’ and ‘should never be exercised unless it is clear that there is no real question to be tried.”’
“The demanding nature of the test is in no way lessened in circumstances where there are the potential for difficult factual and legal issues to arise. Rather, as the decision in Webster made clear, it is heightened: see also Wickstead & Ors v Browne (1992) 30 NSWLR 1 and Esanda Finance Corporation Limited v Peat Marwick Hungerfords (1997) 188 CLR 241.”
11 The defendant submitted that the plaintiff’s appeal is incompetent for two reasons. Firstly, it cannot be an appeal in accordance with s 32(1)(a) because at the time the objection was lodged no assessment had been made and secondly, the appeal cannot be brought under s 32(1)(b) of the Act because it permits an objection which relates to the amount of the assessment only. According to the defendant, the objection cannot dispute the underlying liability. It is common ground that the grounds of objection and the appeal raised the issue of the plaintiff’s liability to pay pay-roll tax. The plaintiff submitted that although s 32(1)(a) refers to an assessment it can include a rejection of a refund where it is anticipated that an assessment will follow. The plaintiff also submitted that s 32(1)(b) properly interpreted does not limit the objection to a calculation of the mathematics but includes the right to object in relation to the underlying liability to pay pay-roll tax. Both parties submitted that the explanatory note assists in their interpretation of s 32.
12 In 1988 paragraph (b) was added to s 32. Act No 221 of 1989 amended paragraph 32(b). Prior to the 1989 amendment, s 32(b) read that a person who had paid tax and who was dissatisfied with a decision of the Chief Commissioner with respect to the refunding of the whole or any part of the tax…”
13 The Stamp Duties (Further Amendment) Bill 1987 introduced the current s 32. The explanatory note states:
“Division 1 contained a new section 32. The proposed section replaces the existing sections 32-34 with provisions that correspond to the procedures contained in section 124 of the Stamp Duties Act 1920 for dealing with objections to assessments of pay-roll tax and the stating of cases to the Supreme Court.”
14 The liability for pay-roll tax does not depend upon any assessment of the Commissioner, but is imposed by the Pay-roll Tax Act on an employer in respect of wages (other than exempt wages) paid or payable by him or her at the rate set out in the Act (s 6, 7 and 8). The forms of return in evidence required the employer to state the wages paid, and the tax payable at the rate set out in the form. Every employer who is registered or required to apply for registration in accordance with s 12 is required to furnish returns in the prescribed form, and to specify the taxable wages paid. The return and payment are to be forwarded to the Chief Commissioner within 7 days after the close of each month. Adjustment for over and underpayments are made within 21 days after the close of the month in each year (s 13(1) and (2)).
15 Section 10 makes provision for wages not liable to pay-roll tax. Section 12 (dealing with registration of employers) and s 13 (dealing with returns from employers who are registered or required to be registered) do not impose an obligation of registration or of furnishing returns upon an employer who pays no taxable wages; but by s 15 the Commissioner may, by notice in writing, call upon any person to furnish him with such return as the Commissioner requires. Thus s 15 enables the Commissioner to obtain information from a person (whether an employer as defined in s 3 or not) relating to wages paid, whether or not the person claims the wages to be exempt (see also s 16). But there is no provision enabling the employer to have a determination made as to whether wages paid by him are exempt or taxable.
16 It is only when no tax, or less tax than is payable by law, is paid within the period ending seven days after the month in which taxable wages are paid that any assessment and calculation is made under s 18(1). The Chief Commissioner may cause an assessment to be made of the amount upon which, in his judgment, pay-roll tax or further tax ought to be levied where any employer fails or neglects duly to furnish any return as required, or the Chief Commissioner is not satisfied with the return made by any employer; or has reason to believe or suspect that any employer (though he may not have furnished any return) is liable to pay pay-roll tax (s 18(2)).
17 Section 19 provides that where the Chief Commissioner finds in any case that tax has been overpaid, he may upon application return to that person the amount of tax found to be overpaid. The Chief Commissioner may make a refund without the necessity of an application being made.
18 The current s 32 of the Pay-roll Tax Act 1971 provides:
“Objections and appeals
(1) A person
(a) who is liable to pay tax and who is dissatisfied with an assessment of the tax made by the Chief Commissioner; or
(b) who has paid tax and who is dissatisfied with a decision of the Chief Commissioner with respect to the amount of tax refunded under section 19,
may, within 60 days after the issue of the assessment or the making of the decision. object to the assessment or decision by lodging, at an office of the Chief Commissioner, a statement in writing of the grounds of the objection.
(2) A person entitled to make an objection may, whether before or after the expiration of the time for making the objections, apply for an extension of time and the Chief Commissioner may, for reasonable cause shown, extend the time for making the objection for such period as the Chief Commissioner considers to be reasonable.
(3) The Chief Commissioner shall consider any objection and may -
(a) allow the objection wholly or in part and modify the assessment or alter the decision to which it relates; or
(b) disallow the objection and confirm the assessment or decision to which it relates.
(4) On making a decision on an objection, the Chief Commissioner shall inform the objector in writing of the decision and the reasons for the decision.
(5) An objector dissatisfied with the decision of the Chief Commissioner on an objection may request the Chief Commissioner to approve in writing of an appeal by the objector to the Supreme Court against the decision.
(6) Such a request must be in writing and be lodged with the Chief Commissioner within 30 days (or such longer period as the Chief Commissioner may allow for reasonable cause shown) after the objector is informed of the Chief Commissioner’s decision on the objection.
(7) If the Chief Commissioner does not comply with a request under subsection (5) within 60 days after it is made and the objector -
(a) has provided the Chief Commissioner with any information required by the Chief Commissioner in relation to the assessment or decision with respect to a refund concerned; and
(b) lodges with the Chief Commissioner a notice in writing requiring the Chief Commissioner to comply with the request,
the Chief Commissioner must comply with the request not later than 30 days after the notice is lodged.
(8) The objector may appeal to the Supreme Court against the decision within 14 days after the Chief Commissioner grants approval under this section to the appeal.”
19 The Commissioner shall consider the objection, and may either disallow it, or allow it, either wholly or in part (s 32(3)).
20 A person dissatisfied with a decision of the Commissioner on an objection may within 30 days request the Chief Commissioner to approve an appeal to the Supreme Court. If the Chief Commissioner does not comply with that request, the person dissatisfied with the decision can within the 60 days provide any information the Chief Commissioner requests and lodge a notice in writing requiring him to comply with the request. The Chief Commissioner must comply with that request within 30 days.21 I turn to consider the parties submissions in relation to s 32(1) of the Act. It is not necessary to resort to the explanatory note which can be used as an aid to interpretation. Section 18 makes provision for the Chief Commissioner to issue an assessment notice. The objection was lodged on 9 November 1992 to the Chief Commissioner’s decision to deny the refund of pay-roll tax. The plain meaning of s 32(1)(a) is that it applies only where an assessment in accordance with s 18 has been made. Subsection 32(1)(a) is directed to an assessment whereas subsection 32(1)(b) is directed to a decision of the Chief Commissioner. The time for lodging the objection is stipulated in s 32(1). The objection is to be lodged within 60 days from the date of the assessment. A notice of assessment issued on 5 April 1993. No objection was lodged to that assessment. The objection was made in relation to the Commissioner’s decision not to make a refund under s 19. It was not an objection to the notice of assessment. The plaintiff’s claim pursuant to s 32(1)(a) is hopeless. It is my view that the words of s 32(1)(a) cannot be construed to include a rejection of a refund where it is anticipated an assessment will follow. This argument is also hopeless.
22 The issue in relation to the construction of s 32(1)(b) is whether the objection can properly raise the issue of the liability to pay pay-roll tax or such objection is it limited to only the amount of tax refunded.
23 On 30 June 1992 the plaintiff requested a refund of pay-roll tax totalling $392,682.56. On 11 September 1992 the Chief Commissioner made a decision that the application for refund was not approved. On 9 November 1992 the plaintiff lodged a notice of objection and disputed its liability to pay pay-roll tax. The objection was made in time. Section 32(1)(b) specifically refers to the words “with respect to the amount of tax refunded”. The former s 32(b) referred to “refunding the whole or any part of the tax…” It can be argued that the current (32(1)(b) limits the amount of tax objected to and does not extend to the liability to pay the tax.
24 The defendant referred to the decision of the Full Federal Court of Layala Enterprises Pty Limited (in Liq) v FC of T 98 ATC 4858. Cooper J in Layala referred to the decision of Witney v Commissioners of Inland Revenue [1926] AC 37 where Lord Dunedin with whom Lord Carson agreed said at p 52:25 Cooper J stated that in relation the Pay-roll Tax Assessment Act 1971 (WA) which is similar to the Pay-roll Tax Act 1971 (NSW).
“My Lords, I shall now permit myself a general observation. Once that it is fixed that there is liability, it is antecedently highly improbable that the statute should not go to make that liability effective. A statute is designed to be workable, and the interpretation thereof by a Court should be to secure that object, unless crucial omission or clear direction makes that end unattainable. Now, there are three stages in the imposition of a tax: there is the declaration of liability that is the part of the statute which determines what persons in respect of what property are liable. Next, there is the assessment. That, ex hypothesi, has already been fixed. But assessment particularizes the exact sum which a person liable has to pay. Lastly, come the methods of recovery, if the person taxed does not voluntarily pay.”
26 The plaintiff referred to a number of sales tax cases, namely Precision Pools Pty Ltd v Commissioner of Taxation & Anor; Qld Pool & Spa Construction Pty Ltd v Commissioner of Taxation & Anor (1992) 37 FCR 554, Chippendale Printing Co Pty Ltd v Commissioner of Taxation & Anor (1996) FCR 374 and M R Hornibrook (Pty) Ltd v The Federal Commissioner of Taxation (1939) 62 CLR 272. The most relevant passage is found in the judgment of Spender J in Precision Pools where he referred to an opiter dicta in a decision of Hunt J (as he then was) in Jax Tyres Pty Ltd v Commissioner of Taxation (1986) 5 NSWLR 329 at 334:
“The liability of the employer does not depend upon any act of the Commissioner: The Australian Council of Coal Services Inc & Anor vCommissioner of Pay-roll Tax (NSW) 82 ATC 4385 at 4388; (1982) 13 ATR 290 at 293-294; Commissioner of State Taxation (WA) v Pollock at ATC 5225-5226; WAR 72. In this respect, the Assessment Act operates in the same way as the series of Sales Tax Assessment Act introduced by the Commonwealth in 1930 as part of the statutory sales tax scheme : DFC of T v Hankin (1959) 11 ATD 503 at 505; (1958-1959) 100 CLR 566 at 573; Darrell Lea Chocolate Shops Pty Ltd v FC of T 97 ATC 4040 at 4046; (1996) 72 FCR 175 at 182 (FC).
It is only when no tax, or less tax than is payable by law, is paid within the period ending seven days after the month in which taxable wages are paid, that any assessment and calculation under s 18(1) of the Assessment Act may become necessary or appropriate.”
27 In Chippendale, the issue was whether the statutory regimes comprised an exhaustive and exclusive code as to the circumstances and conditions under which a claimant can recover an overpayment of sales tax or whether, alternatively a co-existence with the statutory right and procedures there is a general right to a refund under the general law. In examining the Sales Tax Amendment Act (No 1) 1930, s 26 stated that where the Chief Commissioner finds in any case that tax has been overpaid by a person he or she shall refund the amount of any tax overpaid. Tamberlin J stated:
“In my respectful view, if nothing at all is due, then the entirety of what is paid is an overpayment. While it is under a different statute and in a different context, the
observations of Latham CJ in M R Hornibrook (Pty) Ltd v Commissioner of Taxation (Cth) (1939) 62 CLR 272 are apposite. His Honour said (at 280:)
‘It was objected by the Commissioner that the board of review had no jurisdiction to determine the objections raised in the present case because those objections were not merely objections to the amount or value upon which the Commissioner had assessed sales tax but were objections that sales tax was not payable at all.
…
The contention of the Commissioner is that only objections to ‘amount or value’ can be dealt with under these provisions, and that an objection that no tax at all is payable must be dealt with, if at all, in a proceeding for the recovery of the tax. In my opinion this objection is not well founded. A contention that the Commissioner is seeking to tax a transaction which does not involve any dealing in ‘goods’ within the meaning of the Act, or that the alleged goods have no sale value within the meaning of the Act, is a ground for an objection to the amount or value upon which the Commissioner requires the taxpayer to pay sale tax. The objection of the taxpayer is that there is no amount or value upon which he is bound to pay tax, that is, that the alleged amount or value should, for the reasons relied upon by him, be reduced to nil.’
In the view I take of it, “overpayment” is not confined to a situation where some tax is payable but more than that sum has been paid, but can encompass the situation where no tax is payable, with the consequence that the entirety of that which has been paid is an overpayment.
Notwithstanding my view as to what constitutes an “overpayment”, s 26 has no application in the present circumstances because, in my opinion, payments made by SPASA pursuant to the agreement were not “taxes” within s 26.”
28 and Lehane J stated:
“As the question as to the existence of an exclusive code is one of statutory construction it is not appropriate, in my view, to approach the matter on the basis that the legislation constitutes an exhaustive code at least in some overpayment situations, but not necessarily in others. Section 26(1) simply refers to tax which has been ‘overpaid’. There are no words which limit the Commissioner’s duty to any particular type of overpayment or any particular circumstances of overpayment. This consideration is, in my view, central to the resolution of the questions posed.
In my opinion, s 26(1) gives a right in all situations in which sales tax has been overpaid. Overpayment means the payment of a greater amount of tax than was lawfully payable. The subsection does not focus on the reasons which give rise to the overpayment, but rather on the circumstance that there has been in fact an overpayment, of tax. If one adopts a literal or natural reading of the words use, free from authority, s 26 would operate immediately there has been an overpayment found by the Commissioner. The reason, ground or form of the overpayment is irrelevant. Accordingly, it is appropriate, as a matter of statutory construction, to consider whether the legislation in each period excludes all overpayments and not just whether it excludes one or more classes of overpayment. To carry out the statutory construction exercise involved in deciding whether there is an exhaustive and exclusive code properly it is relevant to consider whether all overpayments are covered by the legislation and not just one or more specific types of overpayment.
As his Honour points out the words “in any case” in s 26(1) support the conclusion that the statutory right is to be given a wide reading. In other words, it is directed to overpayment made in any case or in every case where there has been a greater amount paid than that which is legally due, regardless of the circumstances leading to or the nature of the overpayment.”
It will be noticed that whereas the old legislation does not define “overpayment of tax”, Table 3 tells us, for the purposes of the new legislation, that “tax overpaid” refers to the fact that the “claimant has paid an amount as tax that was not legally payable”. Lindgren J held, and I agree, that the new statutory definition expresses equally what the old legislation meant by the term “overpayment”. It may be noted that it includes both a payment exceeding an amount of tax actually due and a payment made, as tax, where no amount of tax was actually due: Precision Pools Pty Ltd v Commissioner of Taxation (1992) FCR 554 at 563: cf Jax Tyres Pty Ltd v Commissioner of Taxation (Cth) (1986) 5 NSWLR 329 at 334.”
29 Section 32(1)(b) simply refers to “the amount of tax refunded”. While the wording in s 32(1)(b) differs from s 26(1) of the Sales Tax
Amendment Act (No 1) 1930, it is my view that it is arguable that it could be interpreted to mean an amount of tax which has been refunded. The amount could be the whole amount.
30 It can be argued that s 32(1)(b) is directed to an amount paid which is greater than that which is legally due regardless of the circumstances leading to or the nature of the overpayment. Further, the plaintiff argued a similar case in the Supreme Court of Victoria in Drake Personnel Limited & Ors v Commissioner of State Revenue (Vic) 98 ATC 4915. The plaintiff was unsuccessful in seeking a refund of pay-roll tax because one claim was held to be statute barred and the other claim failed because s 32 of the Pay-roll Tax Act 1971 (Vic) did not confer on a tax payer a right to object to a decision refusing a refund of pay-roll tax paid. There was no decision or assessment of determination made by the Commissioner. Thus there was no right to lodge an objection. The matters were fully argued in the Supreme Court of Victoria. There are different facts and circumstances in this present case. It is my view that the plaintiff should be afforded an opportunity to fully argue it on its merits. Accordingly, it is not appropriate that the appeal be summarily dismissed. The plaintiff should have the opportunity to argue the meaning of s 32(1)(b) on its merits. I dismiss the notice of motion.31 The plaintiff sought costs on an indemnity basis and that those costs be payable forthwith. Costs are discretionary. Costs should follow the event. There are no special circumstances that warrant the making of orders that costs be payable on an indemnity basis nor that they be payable forthwith. The defendant is to pay the plaintiff’s costs.
32 The orders I make are:
(2) The defendant is to pay the plaintiff's costs.
(1) The defendant’s notice of motion filed 24 May 1999 is dismissed.**********
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