Scott and Bird v Commissioner of State Revenue

In Scott and Bird v Commissioner of State Revenue, the applicants sought judicial review of the Commissioner of State Revenue’s decision to refuse their application to be excluded from a group for payroll tax purposes. The applicants, who were custodial trustees for a self-managed superannuation fund, argued that they were not carrying on a "business" as defined by the Payroll Tax Act and thus should not be subject to payroll tax. The central legal issues revolved around whether the applicants were correctly regarded as carrying on a "business" and whether the Commissioner erred in considering certain agreements, investments, and loans in making his decision.

The court examined the Commissioner's decision to determine whether he failed to take into account relevant considerations, particularly the applicants' role as trustees of the superannuation fund. It was also assessed whether the Commissioner erred by taking into account agreements, investments, and loans between the applicants and group entities. The court found that the Commissioner’s decision was based on an evaluative opinion rather than a factual error. Consequently, the court held that the applicants had not demonstrated that the Commissioner failed to take into account a relevant consideration or that he based his decision on a non-existent fact.

The court dismissed the application for judicial review, affirming the Commissioner's decision. It ordered the Commissioner to proceed to decide the application for an exclusion order in respect of the Wilson/Voll Group. Otherwise, the application was dismissed, upholding the Commissioner's determination that the applicants were liable for payroll tax.