Stamp Duties, Commissioner of v Westpac Banking Corporation

[1993] QCA 165

[1993] QCA 165

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 12 of 1993

Brisbane

[Westpac Banking Corp. v. Commissioner of Stamp Duties]

BETWEEN

WESTPAC BANKING CORPORATION

Respondent

- and -

COMMISSIONER OF STAMP DUTIES

Appellant

DAVIES J.A.
McPHERSON J.A.

DE JERSEY J.

Judgment delivered 14/05/1993
REASONS FOR JUDGMENT - THE COURT

1.    IN APPLICATION NO. 916 OF 1992, ALLOW THE APPEAL WITH COSTS. SET ASIDE THE ORDER DISMISSING THE APPLICATION MADE BY THE APPELLANT COMMISSIONER FOR AN ORDER THAT APPLICATION NO. 916 OF 1992 BE STAYED OR DISMISSED. ORDER IN LIEU THAT APPLICATION NO. 916 OF 1992 BE DISMISSED WITH COSTS.

2.    SAVE AS AFORESAID, DISMISS THE APPEAL WITH COSTS.

3.	ORDER THAT IN THE CASE OF EACH OF APPLICATIONS NOS. 824 AND 892 THE OPERATION OF THE COMMISSIONER'S ASSESSMENT UNDER s.22A OF THE STAMP ACT BE SUSPENDED UNTIL THE PROCEEDINGS UNDER THE JUDICIAL REVIEW ACT ARE COMPLETED OR UNTIL FURTHER ORDER; FURTHER THAT THE OPERATION OF THE COMMISSIONER'S DETERMINATION OF THE OBJECTION TO THE ASSESSMENT BASED ON s.67A OF THE STAMP ACT BE SUSPENDED, AND ANY FURTHER PROCEEDINGS ON THIS ASSESSMENT BE STAYED, UNTIL THE PROCEEDINGS UNDER THE JUDICIAL REVIEW ACT ARE COMPLETED OR UNTIL FURTHER ORDER.
CATCHWORDS:	STAMP DUTIES - ASSESSMENT - Whether assessments reviewable under Judicial Review Act 1991 - Whether judicial review proceedings should be stayed or dismissed under Judicial Review Act - Adequacy of case stated procedure under s.24 Stamp Act where facts in dispute - Whether s.78A(1A) Stamp Act excludes judicial review in light of s.18 Judicial Review Act
Judicial Review Act 1991, ss.12, 13, 18, 48 Stamp Act, ss.22, 22A, 23D, 24, 49, 54A, 67A, 78A
Counsel:	Mr K. Dorney Q.C. with him Mr G. Koppenol for the appellant Mr I. Gzell Q.C. with him Mr J. McGill for the respondent
Solicitors:	Crown Solicitor for the appellant Feez Ruthning for the respondent
Hearing Date(s):	19 April 1993

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 12 of 1993

Brisbane

Before Mr Justice Davies

Mr Justice McPherson Mr Justice de Jersey

[Westpac Banking Corp. v. Commissioner of Stamp Duties]

BETWEEN:

WESTPAC BANKING CORPORATION

(Applicant)

Respondent

- and -

COMMISSIONER OF STAMP DUTIES

(Respondent)

Appellant

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 14/05/1993

The Commissioner of Stamp Duties ("the Commissioner") appeals against the refusal by a judge of the Trial Division to stay or dismiss three applications under the Judicial Review Act 1991 by Westpac Banking Corporation ("Westpac") to review decisions of the Commissioner. They were:

1. A decision of 18 September 1992 that s. 54A of the Stamp Act required Westpac to deliver to the Commissioner a statement in form S(a) in respect of the acquisition by Westpac of certain assets of Chase AMP Bank Ltd ("Chase AMP") on or about 4 July 1991; that upon that statement being delivered he would charge it with duty as if it were a conveyance or transfer of the property to which it related for a consideration equal to the full unencumbered value of those assets; and that upon Westpac failing to deliver a statement in form S(a) he would assess the duty which in his opinion ought to be charged on the statement as if it had been delivered. Westpac, in the alternative, sought to review the above as conduct for the purpose of making a decision to which the Judicial Review Act applied.

2. A decision on or about 16 October 1992 pursuant to s. 22A of the Stamp Act to assess the duty which in his opinion ought to have been charged upon a statement in form S(a) in respect of the acquisition by Westpac of the above assets on 4 July 1991.

3. Decisions of the Commissioner on or about 16 October 1992 to make two assessments pursuant to s. 22 of the Stamp Act; the first to assess what he described as an "Offer and Fully Funded Participation Agreement dated 4 July 1991" in reliance on s. 67A; the second to assess what he described as "Offer, acceptance and assignment dated 27 September 1991" in reliance on s. 49.

The applications for review were made pursuant to ss. 20, 21 and 43 of the Judicial Review Act. The first of these sections provides that a person who is aggrieved by a decision to which the Act applies may apply to the court for a statutory order of review in relation to the decision, the stated grounds being the familiar ones for judicial review of administrative action. Section 21 provides a similar remedy in respect of conduct for the purpose of making a decision to which the Act applies. And s. 43 preserves and simplifies in statutory form the relief formerly available by way of prerogative writ.

The decision to require Westpac to deliver a statement in form S(a) and the three assessments were decisions of an administrative character under the Judicial Review Act and consequently decisions to which that Act applied; and Westpac was a person aggrieved by each of those decisions.

Consequently, at least prima facie, they were subject to review under that Act. Section 10(1) of that Act provides that the rights conferred by that Act on a person to make an application to the court in relation to a reviewable matter are in addition to other rights that the person has to seek a review of the matter, whether by the court, another court or a tribunal, authority or person. The term "review" is defined to include a reconsideration, rehearing or appeal.

The applications for dismissal or stay were made pursuant to ss. 12, 13 and 48 of the Act. Section 12 empowers the court to dismiss an application for review because -

"...

(b)  adequate provision is made by a law, other than this Act, under which the applicant is entitled to seek a review of the matter by the Court or another court."

Section 13 requires the court to dismiss an application for review, if it is satisfied, having regard to the interests of justice, that it should do so if -

"...

(b)  provision is made by a law, other than this Act, under which the applicant is entitled to seek a review of the matter by another court or a tribunal, authority or person."

Section 48 confers an additional power on a court to stay or dismiss an application for review if it considers that it would be inappropriate for proceedings in relation to the application to be continued or to grant it; or that no reasonable basis for the application is disclosed.

The assessment the subject of the second application was made pursuant to s. 22A of the Stamp Act, and the assessments the subject of the third application were made pursuant to s. 22 of that Act. All were subject to objection to the Commissioner or his appointee (or both) pursuant to s. 23D, and to appeal by way of case stated to this Court pursuant to s. 24.

Section 24(1B) provides that notice of appeal "is to require the Commissioner to state and sign a case setting out the questions upon which the Commissioner's opinion was required and the assessment made by the Commissioner". No provision is made in the section for resolution of questions of fact which are in dispute or are not sufficiently set forth in the stated case. Contrast s. 124A of the Stamp Duties Act (NSW). Without such a provision, the procedure by way of case stated is prima facie inappropriate and defective where relevant facts are in dispute or not stated. The function of a case stated is to place ultimate (as opposed to evidentiary) facts before a court with a view to obtaining a decision on a question of law which those ultimate facts raise: Francis v. Commissioner of Stamp Duties (N.S.W.) (1954) 91 C.L.R. 368 at 400. Moreover, where, as is the case in s. 24, the facts in the case are stated by one of the litigants, the procedure may be not only inappropriate but unfair. Notwithstanding that this procedure has been criticised judicially on a number of occasions, the section remains relevantly unamended.

It is plain from the exchange of correspondence between the Commissioner and the solicitors for Westpac that there were, in respect of the decisions the subject of the first two applications, a number of facts relied on by the Commissioner which were disputed by Westpac. These concerned the question whether, in terms of s. 54A, Westpac acquired from Chase AMP sufficient of the assets of a business to enable it to carry on that business. The most important of these disputed facts were whether Chase AMP's Consumer Banking Group was a separate operating division and whether the goodwill of that division was transferred to Westpac by reason of a restrictive covenant and introductions to customers. It was conceded by the Commissioner, having s. 12(b) of the Judicial Review Act in mind, that if there is a ground for relief relied on under these applications which is factually based and reasonably arguable, s. 24 is not an adequate alternative. That concession was subject to an argument, which we will discuss later, concerning the conclusiveness of an assessment made under s. 24.

There was no provision made by a law other than the Judicial Review Act under which Westpac was entitled to seek a review of the decisions the subject of the first application by this Court or another court. Section 24 enabled review, within the meaning of that term in the Judicial Review Act, only of assessments. None of the decisions the subject of this application involved the making of an assessment. But the decision the subject of the second application did; namely, the default assessment under s. 22A in respect of a failure by Westpac to deliver to the Commissioner a statement in form S(a). And that assessment covered the same "matter" (the term used in s. 12(b)) as the decisions the subject of the first application. The existence of the dispute upon important facts relevant to the question whether Westpac acquired sufficient of the assets of Chase AMP to enable it to carry on the business as the Commissioner contended and the inadequacy of the procedure under s. 24 to enable that dispute to be resolved before the Court decided the ultimate question posed by the case stated, lead us to the conclusion that s. 24 is not an adequate provision under which Westpac was entitled to seek a review of the matter by the Court within the meaning of s. 12(b).

His Honour said that it was not sufficient, in order to show that s. 24 did not make adequate provision for a review within the meaning of s. 12(b) of the Judicial Review Act, that it provided for appeal by the unsatisfactory method of a case stated. However it follows from what we have said that, because of the facts to which we have referred, s. 24 is not, in this case, an adequate provision for review of the matter involving the assessment pursuant to s. 22A.

His Honour then went on to say that s. 24 "does not make adequate provision for review because it does not provide machinery for reviewing the legality of decisions of the Commissioner." If, in saying that, his Honour was referring to the power of the Commissioner to make the assessment that is not in question here. If he was speaking of its legal correctness then that is what the procedure pursuant to s. 24 is intended to enable the Court to determine, although in this case, for the reasons we have mentioned, the determination is likely to be made upon an inadequate factual basis. We would therefore reject this basis for his Honour's conclusion which was not, before us, relied on by the respondent.

It was contended by the Commissioner that even if the procedure under s. 24 appears to be inadequate to resolve the factual dispute between the parties, his Honour should not have decided that no adequate provision was made by that section until after Westpac had exhausted its rights to object pursuant to s. 23D because the exercise of those rights might result in the resolution of the matter without the need for appeal. We do not think that there is any substance in that contention. By the time proceedings were instituted under the Judicial Review Act the parties had expressed their opposing views of the facts without any apparent possibility of resolution of the dispute. And the objection procedure pursuant to s. 23D, like the case stated procedure under s. 24, did not provide any means of resolution of that dispute.

The argument for a stay based on s. 12 must fail.

Section 13 of the Judicial Review Act does not refer to review by the Court. However, the determination of an objection by the Commissioner or his appointee under s. 23D is a review within the meaning of that term in the Judicial Review Act. The adequacy of that review does not require specific consideration under s. 13; and the Court must dismiss the application for review "if it is satisfied, having regard to the interests of justice, that it should do so". Nevertheless we would decline to dismiss the first two applications on this ground because the interests of justice require determination of the dispute upon an important factual question before the legal question in the matter can be decided.

For the same reason it would not be inappropriate, within the meaning of s. 48, for the review proceedings the subject of the first two applications to continue.

Different considerations, however, apply to the third application. It concerned assessments made pursuant to s. 22 on the basis that there were dutiable instruments; an instrument dated 4 July 1991 assessable as a loan application or offer under s. 67A and one dated 27 September 1991 assessable as a conveyance or transfer under s. 49.

The respondent submitted that determination of the correctness of each of those assessments also involved complex factual issues. As to the first, it was said that, if there were an instrument to which s. 67A could apply, the question whether it amounted to a debenture depended upon whether men of commerce would regard it as such and consequently that was a question for evidence. We reject that submission. It is one thing to say that one way of determining whether an instrument is a debenture is to ask whether commercial men and lawyers would regard it as such; it is quite another to say that evidence from such persons is admissible on this question. The first is correct; the second is not.

The Commissioner particularised the instrument which he assessed as a concluded agreement assigning the property in question pursuant to s. 49 as the "Offer of Assignment of Fully Funded Participation Rights in Queensland between Westpac Banking Corporation and Westpac Savings Bank Limited". This was plainly a written instrument. Whether either alone or, when regard is had to the statutory declaration of the witness to oral acceptance of that offer, it constitutes a conveyance or transfer within the meaning of s. 49, is a question of law. No factual issue appears to arise. The contention of the respondent that the question whether the witness had authority to bind the respondent is a relevant question of fact must be rejected. The Commissioner does not contend that she had any authority.

He is content to rely upon the instrument and her evidence that the offer contained in it was accepted orally.

There was, therefore, adequate provision, namely s. 24, under which Westpac was entitled to seek a review of the assessments the subject of the third application. And there was provision, namely s. 23D, under which it was entitled to and did seek a review of those assessments. The question is whether, because of those entitlements, the interests of justice or because for any other reason it was inappropriate for the proceedings on the application to be continued, the application to review those assessments under the Judicial Review Act should be dismissed or, in the latter case, stayed.

Were it not for the first and second applications, we think that it should be dismissed. Allowing the first and second applications to proceed while dismissing the third could cause problems to the extent that there is a relationship between the issues raised in the first and second applications on the one hand and the third application on the other. However, in the result, we think that no such problems will arise. The issues involved in the assessment made in reliance on s. 49 are not related to those involved in the assessment based on s. 54A. The former involves a transaction between Westpac and Westpac Savings Bank Limited. As regards the s. 67A assessment, it is true that, as a result of the assessments based on ss. 54A and 67A, the respondent has apparently been assessed to double duty in respect of its acquisition of an interest in the Queensland loans. On 9 December 1992, the respondent paid the appellant $6,728,088.15, being the stamp duty payable under the s. 22A assessment, pursuant to an undertaking given on its behalf at the hearing before the judge below. However, duty had then been paid in respect of the s. 67A assessment and consequently the respondent is entitled to a set-off under s. 54A(6), at least if the assessments under both sections are correct. The possibility no doubt remains that the resolution of the first and second applications will raise some factual issues common to those raised in any future s. 24 appeal against the assessment based on s.67A.

In our opinion, however, this difficulty can be overcome by this court granting a stay of any further proceedings on this assessment until the determination of the judicial review applications.

We turn now to the contention that s. 78A(1A)(b) of the Stamp Act (which makes production of any assessment conclusive evidence of the correctness thereof except in proceedings on

appeal under s. 24) excludes judicial review under the Judicial Review Act of assessments of stamp duty and that consequently the applications, or at least the second and third applications, should be dismissed pursuant to s. 48(1)(b) of the Judicial Review Act. In F.J. Bloemen Pty Ltd v. Federal Commissioner of Taxation (1981) 147 C.L.R. 360, the High Court, in considering s. 177(1) of the Income Tax Assessment Act, which appears to be the genesis of s. 78(1A), adopted the statement of Taylor J. in an earlier case that that section was intended to make it impossible for a taxpayer, in proceedings other than appeal against it, to challenge an assessment on any ground. See at 375. We accept that the intention of s. 78A(1A), when enacted, was the same. That provision came into the Stamp Act in 1988.

However, s. 18(1) of the Judicial Review Act provides that, subject to sub-s. (2), that Act has effect despite any law in force at its commencement; and sub-s. (2) provides that the Act does not affect the operation of any provision mentioned in Schedule 1. Neither s. 24 nor s. 78(1A) of the Stamp Act is mentioned in Schedule 1. Indeed, no provision of the Stamp Act is mentioned in that Schedule. Unless read down in some way, s. 18 permits review under the Judicial Review Act of any decisions of the Commissioner of Stamp Duties, including assessments of stamp duty, subject to any limitations contained in the Judicial Review Act itself, specifically in this case those contained in ss. 12, 13 and 48. There is nothing in s. 18 itself, in its context, in the second reading speech of the Minister, or in the explanatory notes which accompanied the Bill, which would require that. Accordingly, we think that s. 18 should be given its plain meaning and that consequently, subject to the limitations to which we have referred, the Judicial Review Act applies to decisions of the Commissioner including assessments.

It follows from what we have said that we would dismiss the appeal against his Honour's decision with respect to the first and second applications with costs but, for reasons which we have mentioned, allow the appeal against his Honour's decision with respect to the third application with costs and dismiss that application.

Pursuant to s. 29 of the Judicial Review Act his Honour granted a stay of the assessment under s. 22A. This assessment had been paid but no objection had been made pursuant to s. 23D. The purpose of the stay was to prevent time running against Westpac in respect of its right of objection.

As we understood the Commissioner's argument, he did not contest continuation of that stay or contest Westpac's right to a stay of the assessment made under s. 22 of the Stamp Act if his appeal should fail. It is appropriate that the stay which his Honour granted be continued. His Honour refused to grant a stay of the assessments made pursuant to s. 22 because Westpac's objection had not been determined.

Consequently time was not then running against it. By the time of hearing of the appeal, Westpac's objection had been determined against it and it sought a suspension or stay of the operation of the assessments and decision to disallow the objection. As it is appropriate that time should not run against it in respect of its rights of appeal under the Stamp Act against the assessment based on s. 67A until the proceedings under the Judicial Review Act have been completed, we would order that the operation of the determination by the Commissioner of the objection to the assessment based on s. 67A be suspended, and any further proceedings on this assessment be stayed, until then. We would also suspend the operation of the Commissioner's assessment under s. 22A until that time also.