Heiner v Scott - [1914] HCA 82

COMPLAINANT,

ON APPEAL FROM A COURT OF PETTY SESSIONS

OF QUEENSLAND. Stamp Duty-Cheque drawn on Commonwealth Bank-Federal instrumentality,

State tax upon operation of-Stamp Act 1894 (Qd.) (58 Vict. No. 8), sec. 26- Commonwealth Bank Act 1911 (No. 18 of 1911), sec. -The Constitution (63 &64 Vict. c. 12), secs. 51 (XUI.), (XXXIX.), 114.

The Stamp Act 1894 (Qd.) by sec. 26 imposes a stamp duty of one penny on every inland bill of exchange payable on demand (which term includes a cheque on a banker), and imposes a penalty upon any person who issues such a bill of exchange not duly stamped.

Held, that that section is enforceable against a private citizen of Queensland who draws a cheque upon the Commonwealth Bank of Australia in respect of

APPEAL from a Court of Petty Sessions of Queensland.

On the hearing of a complaint in the Court of Petty Sessions at Brisbane, Ernest Eglinton, Esq., a Police Magistrate, stated the following case under the Justices Act 1886 for appeal thereon to the High Court :-

At the Court of Petty Sessions holden at Brisbane on 18th September 1914 a complaint preferred by Peter Scott (hereinafter called the respondent) under sec. 26 of the Stamp Act 1894 against Ernest Frederick Augustus Heiner (hereinafter called the appellant) charging the appellant that on 12th September 1914 at Brisbane in the said State he signed an instrument, to wit a

19 CLR 382

cheque drawn on the Commonwealth Bank of Australia, Brisbane,

for the sum of £7 liable by law to stamp duty, namely, one penny. before the said instrument was duly stamped for denoting the payment of the duty' was heard and determined by me, the said parties respectively being then there represented by counsel, and upon such hearing I convicted the appellant and fined him one shilling and ordered him to pay £2 2s. professional costs, 3s. 6d. costs of Court and 1d. stamp duty, and further ordered that the amount of the fine, costs and duty should be recovered by execu- tion and in default of execution that the defendant should be imprisoned for seven days.

"The appellant, being desirous of appealing to the High Court of Australia from my decision on the ground that it is erroneous in point of law, has duly applied in writing to me to state and sign a case setting forth the facts and the grounds of my decision for appeal thereon to the said High Court of Australia and has duly entered into a recognizance as required by the Statute in that behalf.

" Now, therefore, I, the said Police Magistrate, in compliance with the said Statute do hereby state and sign the following

1. The respondent and the appellant were respectively repre- sented by counsel on the said hearing. The Commonwealth of Australia by their counsel asked leave to intervene upon the said hearing, and I permitted the said counsel for the said Com- monwealth of Australia to be present and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Heiner v Scott

Details

AGLC: Heiner v Scott [1914] HCA 82
Case: [1914] HCA 82
Decision Date: 18 December 1914

CaseChat Overview and Summary

The case of *Heiner v Scott* concerned an appeal to the High Court of Australia from a decision of a Queensland Court of Petty Sessions. The appellant, Mr Heiner, had been charged under section 26 of the Queensland *Stamp Act 1894* for issuing an unstamped cheque drawn on the Commonwealth Bank of Australia. The magistrate had convicted Mr Heiner, imposing a fine and costs, and ordering payment of the stamp duty. The appeal was brought on the grounds that the *Stamp Act* did not apply to cheques drawn on the Commonwealth Bank, or that if it did, the Act was invalid as it interfered with a federal instrumentality.

The legal issues before the High Court were whether section 26 of the *Stamp Act 1894* (Qld) was enforceable against a private citizen drawing a cheque on the Commonwealth Bank of Australia, and whether the Commonwealth Bank, in conducting its general banking business, was an instrumentality of the Commonwealth such that state taxation on its operations was invalid. The appellant argued that the Bank was a federal instrumentality and that the stamp duty constituted an interference with its operations, rendering the state law inoperative. The respondent, the Inspector of Stamps, contended that the duty was imposed on the customer, not the Bank, and that the Bank's general banking business did not constitute a governmental function exempt from state taxation.

The High Court, in dismissing the appeal, held that the Commonwealth Bank, in carrying on its ordinary private banking business, was not exercising an executive function of the Commonwealth. While the Commonwealth Parliament could create a corporation as an instrumentality for governmental purposes, the ordinary business of banking was not a constitutionally conferred executive function. Therefore, the Bank's operations in this regard did not attract the immunity from state taxation that applies to federal instrumentalities. Furthermore, the Court found that the stamp duty was imposed on the customer drawing the cheque, not on the Bank or its property, and that such a non-discriminatory state law did not unduly fetter or interfere with the operations of a federal instrumentality.

Consequently, the High Court affirmed the decision of the magistrate. The Court ruled that section 26 of the *Stamp Act 1894* (Qld) was valid and enforceable against private citizens drawing cheques on the Commonwealth Bank for their own purposes, and that the Bank's general banking business did not confer immunity from such state taxation.

Orders