Roy Morgan Research Centre v Comm State Revenue - [2001] HCATrans 83

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M108 of 2000

B e t w e e n -
THE ROY MORGAN RESEARCH CENTRE PTY LTD
Appellant
and
COMMISSIONER OF STATE REVENUE (in his capacity as Commissioner of Pay-Roll Tax)
Respondent

GAUDRON J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT HOBART ON WEDNESDAY, 4 APRIL 2001, AT 10.14 PM

(Continued from 3/4/01)

GAUDRON J: Yes, thank you, Mr Tracey.

MR TRACEY: If the Court pleases, may I deal with some matters we had undertaken to attend to overnight? Can I first confirm that the Victorian Civil and Administrative Tribunal Act does not contain a privative clause and that the only restriction that it contains in relation to appeals is that found at section 148.

The second matter, I think raised by your Honour Justice Kirby, was in relation to Coal Cliff and its progeny. We have looked at that line of authority overnight, your Honour, and have not found anything of assistance for present purposes.

KIRBY J: Could you just give me the citation of the Coal Cliff Case? Have you got that handy?

MR TRACEY: Yes, your Honour.

KIRBY J: Maybe that could just be given at some stage.

MR TRACEY: I will arrange for that to be done, your Honour.

KIRBY J: It was not quite Coal Cliff that I was thinking of. It is another line of territory. It may have been mentioned in Coal Cliff of decisions in the Court of Appeal of New South Wales which, in a sense, held, for example, that to make an interlocutory order called direction or something else would not give rise to a right of appellate review.

Now, I am sorry I cannot express it better. If Justice McHugh were here he would remember it immediately, but I just have in the back of my mind that there was this line of authority, which frankly I never felt very comfortable with myself, but which had run through a number of decisions in the New South Wales Court of Appeal which said you did not have an appeal from certain discretionary decisions, for example, I think refusing an adjournment but I will just have to try and track it down to see whether it has any bearing on this case.

MR TRACEY: We will certainly track down the citation, your Honour, in the course of the morning. The third matter was raised by your Honour Justice Hayne yesterday and it relates to the question of how one expresses or states what we were describing as the principle in Lane v Esdaile. Your Honour, we took that reference to the principle from the judgment of the Privy Council in Kemper and your Honour will find it stated at page 13 of that report in these terms, that the principle is:

that a provision requiring the leave of a court to appeal will…

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.

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Details

Case: [2001] HCATrans 83
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Roy Morgan Research Centre Pty Ltd (Roy Morgan) against a decision of the Commissioner of State Revenue (Victoria). The dispute concerned the application of Victorian stamp duty legislation to a series of agreements entered into by Roy Morgan. Roy Morgan had entered into agreements with various individuals and entities for the provision of market research services. These agreements involved the transfer of intellectual property rights, specifically the right to use and exploit market research data and reports. The Commissioner assessed stamp duty on these agreements, treating them as dutiable instruments.

The central legal issue before the High Court was whether the agreements constituted a "conveyance of dutiable property" within the meaning of the *Stamps Act 1958* (Vic). Specifically, the Court had to determine if the rights transferred under the agreements, particularly the intellectual property rights in the market research data and reports, constituted "property" for the purposes of the Act and whether their transfer amounted to a conveyance.

The High Court held that the agreements did not constitute a conveyance of dutiable property. The majority reasoned that the rights granted to Roy Morgan were primarily licences to use existing information and to receive future information, rather than a transfer of ownership of the intellectual property itself. The Court distinguished between the transfer of ownership of property and the grant of a licence, emphasizing that a licence merely permits the licensee to do something that would otherwise be unlawful. The Court applied the principle that stamp duty is levied on the transfer of ownership of property, not on the grant of contractual rights or licences.

Consequently, the High Court allowed the appeal and ordered that the assessment of stamp duty be set aside.

Orders