THE COMMONWEALTH OF AUSTRALIA Practice-High Court-Declaratory order-Hypothetical state of facts-Exercise
of discretion-Entertainments tax-Rules of the High Court 1911, Part I., Order IV., r. 1. MELBOURNE,
The plaintiff company brought an action in the High Court against the Com. monwealth in which it alleged that it intended, in conducting its place of public entertainment, to charge sixpence for admission to the main enclosure where entertainment was provided, and a further sum of sixpence for admission to each of several other enclosures (within the main enclosure) where other enter- tainments were provided; and that the Commonwealth claimed that the plaintiff should pay or account for tax, pursuant to the Entertainments Tax Assessment Act 1916 and the Regulations made thereunder, in respect of all payments amounting to or exceeding one shilling in the aggregate made by any one person for his admission to the main enclosure and the other enclosures, and intended and threatened to prosecute the plaintiff for offences against the Act and the Regulations if the plaintiff did not so pay or account. The plain- tiff claimed declarations that certain of the regulations were invalid, and that the plaintiff was not liable to pay tax on any payments for admission to any entertainment save that it was liable to pay tax on any payment for admission to a separate entertainment which amounted to or exceeded one shilling. The parties concurred in stating a case for the opinion of the Full Court upon the questions whether the regulations referred to were invalid and whether the plaintiff was liable to pay entertainments tax on payments for admission to any entertainment other than that on any single payment for admission to an entertainment which amounted to or exceeded one shilling.
Held, by Knox C.J., Isaacs, Higgins, Rich and Starke JJ., that the questions should not be answered on the ground that, the facts upon which the claim to declarations was based being purely hypothetical, the Court should not make a declaratory order; and, by Higgins J., on the ground also that the action was not "properly brought" within the meaning of Order IV., r. 1, of Part I of the Rules of the High Court.
An action was brought in the High Court by Luna Park Ltd. against the Commonwealth in which the plaintiff by its writ of sum- mons, dated 20th October 1923, claimed (1) a declaration that reg. 29 and/or reg. 30 of Statutory Rules No. 227 of 1917 as amended by Statutory Rules No. 299 of 1918 and Statutory Rules No. 218 of 1920 are or is invalid; (2) a declaration that the plaintiff is not liable to pay entertainments tax on any payment or payments for admission to any entertainment at Luna Park save that the plaintiff is liable to pay entertainments tax on any payment for admission to a separate entertainment which amounts to or exceeds one shilling.
[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.
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Luna Park Ltd v the Commonwealth [1923] HCA 49
Case
[1923] HCA 49
Decision Date
CaseChat Overview and Summary
Luna Park Ltd. (the plaintiff) commenced an action in the High Court of Australia against the Commonwealth of Australia (the defendant). The plaintiff operated a place of public entertainment and intended to charge separate admission fees for a main enclosure and several other enclosures within it. The Commonwealth asserted that the plaintiff was liable to pay entertainments tax on the aggregate of these payments if they exceeded one shilling, and threatened prosecution for non-compliance. The plaintiff sought declarations that certain regulations were invalid and that it was only liable for tax on individual admission payments of one shilling or more. The parties agreed to state a case for the opinion of the Full Court.
The legal issues before the Full Court were whether specific regulations under the Entertainments Tax Assessment Act 1916 were invalid, and whether the plaintiff was liable to pay entertainments tax on aggregated admission payments rather than on individual payments exceeding one shilling. The plaintiff contended that the regulations were invalid and that tax was only payable on separate admission payments of one shilling or more. The Commonwealth contended for the aggregation of payments for tax purposes.
A majority of the Court, comprising Knox C.J., Isaacs, Rich, and Starke JJ., held that the questions should not be answered. Their reasoning was that the facts upon which the claim for declarations was based were purely hypothetical, and the Court should not exercise its discretion to make a declaratory order in such circumstances. Knox C.J. noted that such an order would be an abstract opinion without binding effect. Higgins J. concurred, adding that the action was not "properly brought" within the meaning of Order IV, rule 1 of the High Court Rules, which requires actions to be properly brought for the Court to make binding declarations of right.
Consequently, the Full Court declined to answer the questions posed in the case stated.