Western Australia v Hamersley Iron Pty Ltd (No 1)

[1969] HCA 42

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Kitto, Taylor. Menzies, Windeyer and Owen JJ.

WESTERN AUSTRALIA v. HAMERSLEY IRON PTY. LTD. (No. 1)

(1969) 120 CLR 42

12 September 1969

Constitutional Law (Cth)

Constitutional Law (Cth)—Duties of excise—Exclusive powers of Commonwealth Parliament—Note or memorandum required for acknowledging amount received outside State as payment for goods supplied in State by a person therein—Stamp Duty on receipts—Validity—The Constitution (63 &64 Vict. c. 12), s. 90—Stamp Act, 1921-1968 (W.A.), ss. 16, 99, 99A, 99B, 101A.*

Decisions

September 12.
BARWICK C.J. This was an originating summons which has come into the jurisdiction of this Court. During the course of the discussion in the Court amendments to the questions originally asked in the originating summons were proposed. (at p49)

2. The summons was heard in Sydney by a Court consisting of McTiernan, Kitto, Taylor, Menzies, Windeyer, Owen JJ. and myself. (at p49)

3. For reasons which were prepared by the late Sir Alan Taylor in colaboration with me and which were intended to constitute our joint judgment in this matter, I am of the opinion that the questions asked by the originating summons as it is proposed to be amended should be answered as follows: Question C: Yes. It is unnecessary in my opinion to answer any other of the questions asked in the amended originating summons. This means that in my opinion s. 101A of the Stamp Act, 1921-1968 (W.A.), cannot validly apply to the receipts of the defendant referred to in the originating summons. I publish as my reasons the reasons prepared by Sir Alan Taylor to which I have already referred. (at p49)

4. BARWICK C.J. Owen J. is of the same opinion as the opinion I have expressed and I published his reasons. (at p49)

5. Because of the death of Sir Alan Taylor and his inability to participate in the delivery of judgment in this matter, the Court in now equally divided in opinion. However three Justices concur in the decision I propose. The case is not a case where a decision of a Justice of the High Court or of a Supreme Court of a State or of a Judge thereof is called in question. Consequently, in conformity with s. 23 of the Judiciary Act 1903-1967 (Cth) the opinion I have expressed will prevail and the order of the Court will be made conformably thereto. The following are the written judgments which were delivered:-
BARWICK C.J. The questions asked in the case, which finds its way into this Court by force of s. 40A of the Judiciary Act 1903-1967 (Cth), are concerned with the meaning, application and validity of s. 101A of the Stamp Act, 1921-1968, of the State of Western Australia. The section was inserted in the Act as a new provision by Act No. 67 of 1966 and it purports to extend the liability for stamp duty imposed upon receipts by s. 16 of the Act and the provisions of the Second Schedule to some cases where moneys are received outside the State. The section is in the following form:

"101A. Where a payment for goods supplied or services rendered in the State by a person therein, has been received or made outside the State - (a) the payment shall be deemed to have been received by or made to the person; and

(b) the person shall, within thirty-one days of the payment being so received or made, issue or cause to be issued to the person who made the payment, a note or memorandum acknowledging the amount of the payment, duly stamped with duty in accordance with this Act, as if it were a receipt.

Penalty: Twenty dollars." (at p49)

6. This provision now finds its place in an Act expressed to consolidate the law relating to stamp duties upon instruments and to impose certain stamp duties. By s. 16 of the Act it is provided that the stamp duties to be charged for the use of His Majesty upon the several instruments specified in the Second Schedule to the Act shall be the several duties in the Schedule specified. The duty payable upon a receipt which is not exempt is, in general, expressed to be one cent for a receipt "amounting to $10 or less" and, in the case of receipts "amounting to more than $10", one cent for every $10 and fractional part of $10. It is provided by ss. 99A and 99B that, in lieu of complying with the requirements of the Act with respect to the payment of duty on receipts, a person may elect to furnish periodical statements of the amounts received or deemed to have been received by him and to pay duty thereon at such intervals as the Commissioner may direct. (at p50)

7. The provisions to which I have referred are found in a statute of a kind the traditional purpose of which, for nearly three centuries, has been to impose duties upon instruments. But the fact that it is unlawful not to give or tender a receipt where it would, if given, be liable to duty (s. 99 (2)) and the provisions of ss. 99A and 99B make it plain enough, I should think, that the duty which the Act purports to impose with respect to receipts is, in substance, not merely a duty attracted when such an instrument is voluntarily brought into existence, but a duty imposed upon persons in respect of the receipt of money the amount of which duty will increase as the amount of money received increases. (at p50)

8. Section 101A is, in some respects, couched in general terms though expressly it applies wherever a payment is made provided that it is a payment for goods supplied or services rendered in the State of Western Australia by a person in that State. In such a case the payment is deemed to have been received by or made to that person (par. (a)) who shall within the time specified after the payment has been so received or made issue or cause to be issued to the person who made the payment, a note or memorandum acknowledging the amount of the payment, duly stamped with duty in accordance with this Act as if it were a receipt. The parties agree that the section will not operate unless the person to whom the payment has been made outside Western Australia is within that State at the date of the payment. I agree with this construction and, further, with the view that in such a case the payment is deemed by par. (a) of the section to have been received or made in Western Australia. This must be so for unless this view be taken no substantial purpose would be served by the paragraph. In general the hypothesis predicated by the section is that the payment has, in fact, been made to or received by the person outside Western Australia and there would be no point in deeming it to have been made or received by that person unless it is to be deemed to have been made or received in Western Australia. This being so it would seem that the obligation under par. (b) is to issue or cause to be issued within Western Australia a note or memorandum acknowledging the amount of the payment duly stamped with duty in accordance with the Act as if it were a receipt. (at p51)

9. With some of these problems of construction, however, I need have no concern for by s. 2A the Act is to be read and construed subject to the limits of the legislative powers of the State and so as not to exceed those powers, to the intent that, where any provision thereof, but for that section, would be construed as being in excess of those powers, it shall nevertheless be a valid enactment to the extent to which it is not in excess of those powers. I refer to this provision because it appears from the agreed statement of facts that the defendant company has at all material times carried on business in the State of Western Australia where it is registered as a foreign company under the provisions of the Companies Act, 1961-1967. I am not, therefore, concerned with any question as to whether the Act can apply to a person who is not present in the State of Western Australia at the time when a payment of money is received by him outside that State for goods supplied or services rendered in that State nor with the difficulties that could arise in such a case in relation to the collection of the duty. The company is, of course, a person within the meaning of s. 101A and, payments having been received outside Western Australia for goods supplied in that State, the question is whether, apart from the matter raised by the final question, s. 101A may lawfully operate to impose a liability in such circumstances and I am not concerned to inquire whether the liability may extend further (Wilcox Mofflin Ltd. v. New South Wales (1952) 85 CLR 488, at p 523 ). (at p51)

10. The legislature of Western Australia is invested with the authority to make laws for the peace, order and good government of that State subject, of course, to the Constitution of the Commonwealth, and I am not without guidance as to how far such a legislative authority extends in the field of taxation. In Broken Hill South Ltd. v. Commissioner of Taxation (N.S.W.) (1937) 56 CLR 337 , Dixon J., as he then was, said (1937) 56 CLR, at p 375:

"The power to make laws for the peace, order and good government of a State does not enable the State Parliament to impose by reference to some act, matter or thing occurring outside the State a liability upon a person unconnected with the State whether by domicile, residence or otherwise. But it is within the competence of the State legislature to make any fact, circumstance, occurrence or thing in or connected with the territory the occasion of the imposition upon any person concerned therein of a liability to taxation or of any other liability. It is also within the competence of the legislature to base the imposition of liability on no more than the relation of the person to the territory. The relation may consist in presence within the territory, residence, domicile, carrying on business there, or even remoter connexions. If a connexion exists, it is for the legislature to decide how far it should go in the exercise of its powers."

These observations are clear enough and were approved in Commissioner of Stamps (Q). v. Counsell (1937) 57 CLR 248 , the actual decision in which was somewhat closer to the instant problem than was the decision in the earlier case. The observations of Dixon J. also must be taken to have received the approval of the Judicial Committee in Johnson v. Commissioner of Stamp Duties (1956) AC 331, at p 353 Like observations have been made in other cases such as Barcelo v. Electrolytic Zinc Co. of Australasia Ltd. (1932) 48 CLR 391 and Trustees Executors &Agency Co. Ltd. v. Federal Commissioner of Taxation (1933) 49 CLR 220 I have no doubt that s. 101A is, again subject to the matter raised by the final question, within the competence of the State of Western Australia. (at p52)

11. Finally the submission is made that the liability to duty created by s. 101A constitutes the imposition of a duty of excise. It is not, of course, suggested that the duty which the Act purports to impose upon receipts - or, as I have said, upon persons in respect of the receipt of money - is, in every case where the duty is attracted, a duty of excise. That is to say, it is not suggested that the provisions of the Act with respect to receipt, or those of s. 101A alone, operate solely to impose a duty of excise; the duty imposed, it is said, attaches generally to persons whenever they receive money whether or not the receipt is the product of a sale of goods or any other business or commercial transaction and whether the receipt is a capital or revenue receipt. But, so the argument runs, on some occasions the duty will be attracted in such circumstances that the impost will assume the character of an excise duty. (at p52)

12. It seems to me that in dealing with the submission two questions must be examined. One must first of all inquire as to the true nature of the impost and ask whether it is proper to characterize it simply as a stamp duty payable upon receipts and (in the case of s. 101A) upon documents deemed to be receipts, or, is it an impost upon persons because they have received moneys within the State or, in the circumstances mentioned in s. 101A, have received moneys outside the State? This question is a particular one and must, of course, be resolved upon an examination of the legislation itself. The other question is whether, once the true nature of the impost has been ascertained, it can be said in some circumstances to constitute a duty of excise. (at p53)

13. At the commencement of my examination of the legislation I again observe that s. 99 of the Act, in terms, requires a receipt to be brought into existence whenever a receipt would be liable to duty. I say "brought into existence" simply to emphasize that it is not necessary that a receipt should be tendered or given to the person making the payment if he does not request a receipt; in such a case it is sufficient if the so-called receipt be made out and retained by the payee for a period of at least two years (s. 99 (5) and (6)). In such a case, therefore, the statute contemplates that, subject to s. 99A, a payee of money shall not receive payment without incurring a liability to pay duty at the prescribed rates, that is to say, without bringing a receipt into existence. He is absolved from the obligation to bring a receipt into existence if, after having been granted permission by the Commissioner to do so, he gives notice that "he elects to pay duty" under s. 99A instead of being obliged to comply with the requirements of the Act with respect to the payment of duty on receipts. While such a notice is current the person who has given it is not liable to pay duty by impressed or adhesive stamps in respect of any receipt given by him but he is liable for the payment of duty in accordance with s. 99B of the Act. Pursuant to s. 99B a person who has given such a notice in accordance with the preceding section is obliged to forward to the Commissioner statements in the prescribed form setting out the total of all amounts received, or deemed to have been received by, or paid or deemed to have been paid to, that person during specified periods. It may be noted in passing that the expression "deemed to have been received" in this section includes payments falling within s. 101A. Section 99B thereupon proceeds to require a person who has given the notice to pay to the Commissioner "as duty on that statement" an amount calculated at the rate of one cent for each $10 and also for any fractional part of $10. There can, I should think, be no doubt that in cases where these latter provisions operate - and they are capable of an extremely wide operation - it would be impossible to characterize the duty which s. 99B (2) imposes as a stamp duty; it is not in any sense a tax upon or by reason of the use of an instrument and is simply a tax upon or by reason of the receipt of money. However, in cases where notice under s. 99A has not been given there will, or should be, an instrument but the duty cannot, I think, be said to be imposed upon or by reason of the use of the instrument; it is again imposed upon or by reason of the receipt of money by a person who is obliged by the law imposing the duty to bring a receipt into existence. (at p54)

14. This brings me to the argument that the duty cannot be said to be one imposed upon or in respect of the receipt of money because unless a written receipt is brought into existence by the recipient the only liability that will be attracted will be a liability to a penalty. If this argument were to be accepted one might also reach a like conclusion in cases where notice under s. 99A has been given for the provisions of s. 99B are such that liability to pay duty on amounts received will not be attracted unless a statement as prescribed by that section is forwarded to the Commissioner. However, I should think that despite the form which s. 99B has assumed it is not open to question that duty payable under that section is a duty payable in respect of the receipt of money. Nor do I think it follows that because, in cases to which s. 99B does not apply, duty will not be attracted unless a receipt (as defined) is brought into existence, the duty is not, in substance, one imposed by or in respect of the receipt of money. The statute requires that, subject to s. 99A, a receipt shall always be brought into existence and the question is whether the liability to pay duty is simply a liability to pay stamp duty upon the instrument or a duty imposed upon the recipient in respect of his receipt of money. I am satisfied that an examination of the relevant provision of the statute reveals clearly enough that the duty which, subject to s. 99A, is expressed to be chargeable upon receipts is imposed upon the receipt of money and not upon or by reason of the tendering, giving or the bringing into existence of a written receipt. The matter may, perhaps, be tested by contemplating the situation which would arise if, by an act imposing taxation, it were provided that a written memorandum in respect of each sale of goods by any person should be brought into existence and, thereupon, that each memorandum should be liable to duty at a prescribed rate. It would, I think, be idle to contend that the duty was not a duty imposed on sales although no duty would be attracted in the event of a seller failing in his statutory duty to bring a memorandum, or memoranda, into existence. (at p54)

15. The question then is whether the duty imposed by the Act can be said, in some circumstances, to constitute a duty of excise. On this point considerable reliance was placed by the Crown on the decision of this Court in Anderson's Pty. Ltd. v. Victoria (1964) 111 CLR 353 But the legislation under review in that case was quite different from that now under consideration. There liability was attracted "by reason of and by reference to the nature of the specified forms of transactions when, and only when, those forms are employed in the disposal of any goods irrespective of their character". The crucial question was, of course, whether the tax "was upon" goods or "directly related to goods" and the members of the Court thought that it was not. But in my view there is such a relationship in the present case where the payment received is a payment for goods sold. One may, for instance, take the case of a manufacturer who sells his products to a wholesaler who in turn sells them to a retailer who subsequently sells them to the consumer. It is true that the duty is not expressed to be imposed upon or in respect of goods or upon or in respect of any particular sale or sales of goods; it is, in such cases, imposed upon the vendor in respect of the receipt of the proceeds of sale and the tax will not be attracted unless and until he receives the sale price. But to say that a tax upon the act by which a purchaser discharges his obligations to a vendor under a contract for the sale of goods is not a tax upon the sale itself is, in my view, to play with words. In Parton v. Milk Board (Vict.) (1949) 80 CLR 229, at p 252 , it was said by Rich and Williams JJ. that although, in order to constitute a duty of excise, the tax must be imposed

". . . so as to be a method of taxing the production or manufacture of goods . . . the production or manufacture of an article will be taxed whenever a tax is imposed in respect of some dealing with the article by way of sale or distribution at any stage of its existence, provided that it is expected and intended that the taxpayer will not bear the ultimate incidence of the tax himself but will indemnify himself by passing it on to the purchaser or consumer".

In the same case Dixon J. said that

"A tax upon a commodity at any point in the course of distribution before it reaches the consumer produces the same effect as a tax upon its manufacture or production" (1949) 80 CLR, at p 260

These statements have been thought, possibly, to be subject to some qualification in later cases: see Dennis Hotels Pty. Ltd. v. Victoria (1960) 104 CLR 529, at p 575 and Anderson's Pty. Ltd. v. Victoria (1964) 111 CLR 353 but it seems to me that, although the duty imposed by the Act in respect of the receipt of money will have a much wider incidence than an excise duty, it is plain enough that it will assume the character of a duty of excise where the tax is payable, in effect, upon the sale price received upon the first sale and any subsequent sales in the course of the distribution of goods produced in Western Australia or elsewhere in the Commonwealth. As I see the duty it is, in such circumstances, no more and no less than a sales tax and, as such, a duty of excise and this is so whether liability attaches under s. 101A or the other provisions of the Act. What does remain to be said, however, is that liability may attach under the general provisions of the Act, or under s. 101A, because of the delivery of goods not produced or manufactured in Western Australia but brought into that State pursuant to a contract which calls for delivery in that State. There has been some discussion as to whether in order to answer the description of a duty of excise as that expression is used in s. 90 of the Constitution the impost must be imposed in relation to locally produced or manufactured goods, that is to say, in relation to the present legislation, in Western Australia. But the vesting of exclusive power in the Commonwealth Parliament to impose duties of excise obviously precludes any State Parliament from imposing duties upon the production or manufacture of goods anywhere within the Commonwealth. (at p56)

16. In the instant case it appears that the defendant has at all material times carried on the business of winning ore in Western Australia, that it has entered into contracts of sale and that it has in Western Australia supplied part of its products to purchasers under such contracts and that it has outside Western Australia received payment of the purchase price therefor. The duty to which s. 101A purports, in such circumstances, to subject the defendant is, in effect, an impost imposed upon the first sale by the company of its product and as such it is in my view a duty of excise. To this extent, therefore, s. 101A cannot operate and I would simply answer question C accordingly. (at p56)

McTIERNAN J. In my opinion the section in question is valid and applies. I publish my reasons.
McTIERNAN J. I agree with the analysis of s. 101A of the Stamp Act, 1921-1968, of Western Australia made by Kitto J. for the purpose of deciding whether or not the duty imposed by that section is a duty of excise within the meaning of s. 90 of the Constitution. I think that the analysis demonstrates that the duty is not a duty of excise according to the current interpretation of the term "excise" in s. 90. (at p56)

2. I concur also in his Honour's decision that s. 101A is not beyond the legislative competence of the Parliament of the State of Western Australia. (at p57)

3. I would therefore answer questions B and C in the negative. It is not necessary to answer question A. (at p57)

KITTO J. In my opinion this section is valid in all its applications. I publish my reasons.
KITTO J. By s. 16 and the matter appearing in the Second Schedule under the heading "Receipt", the Stamp Act, 1921 (W.A.), as amended, prior to 1966 charged every instrument being a receipt for $10 or more (unless specially exempted) with stamp duty of an amount which varied by reference to the amount of the payment acknowledged. By s. 99 (1) it was made an offence to give a receipt liable to duty and not duly stamped, or to refuse to give a duly stamped receipt in any case where a receipt would be liable to duty. By s. 99 (2) it was provided that if, upon payment of an amount of $10 or upwards in any case where a receipt would be liable to duty, the person receiving the payment should not give or tender to the person making the payment a receipt in writing duly stamped he should be guilty of an offence. Thus receipt duty was made a duty upon an instrument, and not a duty upon the transaction of payment. So long as the recipient should refrain from executing a receipt no duty would become payable: he would be liable to a penalty, but would not be liable to pay the duty. (at p57)

2. The amending Act No. 67 of 1966 removed the downward limit of $10, and it provided two alternatives to the giving or tendering of a receipt. First, it added new sub-ss. (5) and (6) to s. 99, so that the section now provides that where a receipt has not been requested a receipt shall be deemed to have been given for the purposes of the section if a receipt is made out and duly stamped notwithstanding that it is not delivered or sent to any person, and that where a receipt is made out and duly stamped but not delivered or sent to the person entitled thereto or authorized to receive it the person making out the receipt shall retain possession of it for at least two years. Secondly, the 1966 Act added to s. 99 a new sub-s. (4) and enacted new ss. 99A, 99B and 99C, with the result that a receipt need not now be given or tendered where the recipient of the payment has given the Commissioner a notice under s. 99A that he elects to pay duty according to a periodical statement setting out the totals of all payments received by him during the period, instead of being obliged to comply with the requirements of the Act with respect to the payment of duty on receipts. A recipient who has given such a notice and has not cancelled it is not now liable to pay duty by means of stamps upon a receipt given by him, but is liable to pay to the Commissioner duty on that statement at the same rate as provided under the heading "Receipt" in the Second Schedule: ss. 99A and 99B. For non-compliance with the requirement to forward the statement to the Commissioner or the requirement to pay the duty thereon a penalty is provided by s. 99C, and by the same section the defaulting recipient is made liable to pay double the amount of the duty that would have been payable by him if he had complied with the requirement. These three new sections have no application in the present case, for the defendant, having given a notice under s. 99A, cancelled it and has not given a second such notice. I mention the three sections in order to point out that although the duty on a receipt remains a duty upon the instrument, in the case of a person who has given a notice under s. 99A and not cancelled it a duty is imposed upon the transaction of receiving payment. (at p58)

3. The powers of the legislature of Western Australia extend only to the making of laws for the peace, order and good government of that State (see s. 2 of the Constitution Act, 1889, assented to under the authority of the Western Australian Constitution Act, 1890 (53 &54 Vict. c. 26) (Imp.)). Accordingly the provisions of ss. 99 (2) and 99C, making the recipient of a payment a person guilty of an offence if he does not either give or tender a duly stamped receipt or include the amount of the payment in a statement and pay duty on the total amount of the payments appearing in the statement, must be construed as referring only to payments received within the State. (at p58)

4. In apparent recognition of this situation the 1966 amending Act introduced a new section, s. 101A, and it is with this new section that we are here mainly concerned. It is expressed to apply where a payment for goods supplied or services rendered in the State by a person therein has been received or made outside the State. For such a case it makes two provisions: (a) the payment shall be deemed to have been received by or made to the person; and (b) the person shall, within thirty-one days of the payment, issue or cause to be issued to the person who made the payment a note or memorandum acknowledging the amount of the payment, duly stamped with duty as if it were a receipt. It will be observed that these provisions apply whether or not the person who supplied the goods or rendered the services was himself the recipient of the payment. Two points should be noticed. First, an effect of par. (a) is that the provision of s. 99 (2) (by which a recipient of a payment who does not give a duly stamped receipt is liable to a penalty) applies to the person who supplied the goods or rendered the services even though the payment outside the State was made to someone else, e.g. an assignee of the debt, a person to whom payment has been authorized by a revocable mandate, or a person to whom the contract for the goods or services has itself authorized or required the making of the payment. Secondly, by the last six words of par. (b) the scale of duties provided in the Second Schedule for a receipt is made applicable to a note or memorandum under that paragraph even though it may not fall within the definition of "Receipt" in s. 96. (at p59)

5. The case before us relates to the supply of goods. The defendant is a company formed in Victoria but registered as a foreign company in Western Australia, having a registered office in Perth and carrying on in Western Australia a business of winning iron ore and supplying it in Western Australia to Japanese buyers, under contracts providing for delivery f.o.b. at the port of Dampier in that state. All payments for the supply of the ore are made to the defendant itself, but at places outside Western Australia. The defendant causes receipts for all payments to be issued at places outside Western Australia, and they are not brought into the State. They are not stamped under the Act and no duty under the Act is paid in respect of them. (at p59)

6. In these circumstances the State, by means of an action commenced by originating summons in the Supreme Court of Western Australia and removed into this Court by the operation of s. 40A of the Judiciary Act (Cth), seeks answers to a series of questions. Two of the questions, B and C, relate to the constitutional validity of s. 101A, the one asking whether in its application to the defendant it is outside the legislative power of the Parliament of Western Australia otherwise than by reason of s. 90 of the Constitution of the Commonwealth, and the other asking whether any stamp duty payable according to the terms of s. 101A in respect of payments received by the defendant for the price of iron ore won and shipped by it as abovementioned would be a duty of excise within the meaning of s. 90 of the Constitution of the Commonwealth. First, however, there is raised by question A a series of sub-questions as to the construction of s. 101A. They are directed to determining what acts the section (if it is valid) obliges the defendant to do in order to "issue or cause to be issued (a note or memorandum) to the person who made the payment", and whether it obliges the defendant to do those acts in Western Australia, or to do them wherever the person may be. These sub-questions have arisen because of contentions put forward by the defendant's counsel in the course of arguing that s. 101A is beyond the general legislative competence of the Western Australian Parliament; but I do not find it necessary or desirable to answer them. Even assuming in favour of the defendant that it cannot comply with s. 101A without doing acts outside Western Australia there is, in my opinion, quite sufficient connexion with the peace, order and good government of the State to support the enactment of the section. The Privy Council has twice endorsed the observations of Dixon J. in Broken Hill South Ltd. v. Commissioner of Taxation (N.S.W.) (1937) 56 CLR 337, at p 375 , to the effect that it is within the competence of a State legislature to make any fact, circumstance, occurrence or thing in or connected with its territory the occasion for the imposition upon any person concerned therein of a liability to taxation, or to base the imposition of liability on no more than the presence of the person within its territory: see Johnson v. Commissioner of Stamp Duties (1956) AC 331, at p 353 ; and Thompson v. Commissioner of Stamp Duties (1969) 1 AC 320, at p 335 Section 101A imposes an obligation upon a person in virtue of his having supplied goods in the State while himself being therein; and it selects as the event upon which the obligation is to arise the receiving or making of a payment for his having done so. The territorial connexion of the enactment with the State is so obvious and so close that, whatever acts performance of the obligation may entail and wherever they may have to be performed in particular cases, the enactment is, in my opinion, amply justified by the principle which the cases above cited establish. (at p60)

7. The remaining question, question C, is in effect whether any stamp duty payable according to the terms of s. 101A in respect of payments received outside Western Australia for iron ore supplied by the defendant as abovementioned is a duty of excise within the meaning of s. 90 of the Constitution of the Commonwealth. (at p60)

8. By s. 90 the power of the federal Parliament to impose duties of excise is made exclusive of the powers of the Parliaments of the States. A challenge under that section to the validity of a State enactment which purports to impose a duty raises a question as to the true character of that duty, and is not one to which considerations peculiar to a particular person or to particular circumstances are relevant unless as illustrating the general operation of the enactment. Question C is therefore not happily expressed as a question relating to the duty payable by the defendant and in respect of a class of payments which it receives. True, s. 101A is enacted in respect of payments for services rendered in the State as well as payments for goods supplied in the State, and the question to be considered is necessarily limited to payments of the latter kind; but in regard to them it is a general question, to be decided in the light of the decisions of the Court as to the meaning of the expression "duties of excise" as used in the federal Constitution. (at p61)

9. I have pointed out that the duty provided for by s. 101A is a duty upon an instrument, but undoubtedly the effect of the dual obligation of the section, first to bring the note or memorandum into existence and then to pay the duty upon it, is to require a person, when a payment is made outside the State for goods supplied by him within the State, to incur and pay a tax which has a logical connexion with the sale of the goods. Similarly the duty imposed in respect of a payment under s. 99B has such a connexion. But is the connexion in either case sufficiently close to make the tax a duty of excise? A duty of excise is usually within the general description of an indirect tax, and it is said that the duty under s. 101A has at least one of the features of an indirect tax in that at the time of contracting to supply particular goods the supplier, if he expects to receive payment outside the State, is in a position to know how much the duty will be and (if the course of negotiations and the state of the market give enough latitude for him to do so) to allow for it in fixing the price. Whether it would be properly described for this reason as a duty "which is demanded from one person in the expectation and with the intention that he shall indemnify himself at the expense of another" (see Attorney-General for Manitoba v. Attorney-General for Canada (1925) AC 561, at p 566 ), seems to me to be at least doubtful. But I need not pursue the point, for the decided cases have made it clear that the test for determining whether a tax having some connexion with goods is an indirect tax is not the test for determining whether such a tax is a duty of excise in the Australian constitutional sense. It is true that in the judgment of Rich and Williams JJ. in Parton v. Milk Board (Vict.) (1949) 80 CLR 229, at p 252 it was stated as a condition of the characterization of a duty as one of excise that

". . . it is expected and intended that the taxpayer will not bear the ultimate incidence of the tax himself but will indemnify himself by passing it on to the purchaser or consumer";

but it would not be in accordance with more recent decisions to agree that this proposition has a place in the definition of a duty of excise. (at p61)

10. Rich and Williams JJ. began the passage from which the above quotation is taken by saying that a duty of excise

". . . must be imposed so as to be a method of taxing the production or manufacture of goods, but the production or manufacture of an article will be taxed whenever a tax is imposed in respect of some dealing with the article by way of sale or distribution at any stage of its existence" (1949) 80 CLR 229, at p 252

Provided that the expression "at any stage of its existence" be understood as meaning at any stage in its progress from producer or manufacturer to consumer the statement, at least as applied to home production or manufacture, accords with the view now established. By using the expression "so as to be a method of taxing the production or manufacture of goods" the passage brings out a crucial consideration. I shall not repeat what I said as to this in Anderson's Pty. Ltd. v. Victoria (1964) 111 CLR 353, at p 374 , but I shall quote aain what Dixon J. said in Parton v. Milk Board (Vict.) (1949) 80 CLR 229, at p 260:

"A tax upon a commodity at any point in the course of distribution before it reaches the consumer produces the same effect as a tax upon its manufacture or production." (at p62)

11. It is because of its operation as in reality affecting manufacture or production that a duty of excise, even though it may not become payable until a late state in distribution, is described as a duty "upon" or "in respect of" or "in relation to" goods, or as being "a tax directly affecting commodities": see Matthews v. Chicory Marketing Board (Vict.) (1938) 60 CLR 263, at p 276 ; Browns Transport Pty. Ltd. v. Kropp (1958) 100 CLR 117, at p 129 ; Dennis Hotels Pty. Ltd. v. Victoria (1960) 104 CLR 529 ; and Anderson's Pty. Ltd. v. Victoria (1964) 111 CLR 353 The notion is not satisfied by every connexion that may be seen to exist between a duty and a dealing with goods in the course of distribution. There must be such a close connexion that the tax is in truth "upon" the goods, so that from the time of the first stage in manufacture or production the ownership of them as commodities is burdened by the existence of the tax; and that cannot be the case unless the process of getting them in their final state to the hands of the consumer is burdened by the selection of some step in that process as the determinant or criterion of liability to pay the tax. In Bolton v. Madsen (1963) 110 CLR 264, at p 271 the Court in a joint judgment said precisely that:

"It is the criterion of liability that determines whether or not a tax is a duty of excise. The tax is a duty of excise only where it is imposed directly upon goods or, to put the same thing in another way, when it directly affects goods, and to establish no more than that its imposition has increased the cost of putting goods upon the market by a calculable amount falls short of establishing the directness of relation between the tax and the goods that is the essential characteristic of a duty of excise." (at p62)

12. We have therefore to identify the criterion of liability under s. 101A. Is it (if I may use further words from the judgment in Bolton v. Madsen (1963) 110 CLR 264 ) the taking of a step in a process of bringing goods into existence or to a consumable state, or passing them down the line which reaches from the earliest stage in production to the point of receipt by the consumer? Is the criterion such that the tax bears a "close relation" to the production or manufacture or distribution of goods, affecting them as the subjects of manufacture or production or as articles of commerce? (at p63)

13. The selected criterion of liability under s. 101A is certainly not anything in the nature of any particular description of goods, or of goods generally. Nor is it anything in the act or the nature of supplying goods or of doing anything to goods. Goods must of course have been supplied if the duty is to be payable, and supplying goods is ordinarily a step in their distribution; but the section does not tax the act of supplying the goods. That act is made a condition precedent to liability, but not the criterion of liability. The duty is imposed upon a person if payment outside the State be received or made when he has supplied goods in the State, but his liability to pay it is not a consequence, even an indirect consequence, of his having supplied the goods, for when he supplied them there must necessarily have existed at least a possibility that payment might be made within the State, or might not be made at all; and in either event s. 101A would not apply to the case. The liability arises by reason of the fact that payment for the goods has been received by or made to someone outside the State. Incurring liability to pay the duty is not made by s. 101A a condition of the lawfulness of supplying the goods. Its "close relation" is to the event of someone's receiving payment for the goods outside the State, and not to the manufacture or production or distribution of the goods. It is a tax not upon the sale of goods, but upon having them paid for in such a geographical area that no obligation to issue a stamped receipt arises under s. 99 and no obligation to include the payment in a statement upon which duty as on a receipt is to be paid arises under s. 99B. (at p63)

14. In the result I am of opinion that question A should not receive any formal answer, and that questions B and C, as to whether s. 101A is invalid, should each be answered No. (at p63)

MENZIES J. In my opinion this section is valid and applies.
MENZIES J. The conception, for the purposes of Australian constitutional law, of a duty of excise is one which has undergone development but has now been settled. (at p63)

2. At first, it was thought that to fall within the description, duty of excise, a tax had not only to be upon the production or manufacture of goods, but it had also to be in relation to the quantity or value of that production or manufacture: Peterswald v. Bartley (1904) 1 CLR 497 As Griffith C.J. said:

". . . the word 'excise' . . . is intended to mean a duty analogous to a customs duty imposed upon goods either in relation to quantity or value when produced or manufactured" (1904) 1 CLR, at p. 509.

Tax upon the first sale of goods was inevitably treated as an excise duty in accordance with these requirements: The Commonwealth and Commonwealth Oil Refineries Ltd. v. South Australia (1926) 38 CLR 408 ; John Fairfax &Sons Ltd. and Smith's Newspapers Ltd. v. New South Wales (1927) 39 CLR 139 It seems to me, however, that, when in the case of Matthews v. Chicory Marketing Board (Vict.) (1938) 60 CLR 263 , it was decided that a levy of 1 pound for every acre of land planted with chicory was a duty of excise, there was a departure from the requirement that to be an excise a tax had to be in relation to quantity or value of production. As Dixon J. said:

"But if the substantial effect is to impose a levy in respect of the commodity the fact that the basis of assessment is not strictly that of quantity or value will not prevent the tax falling within the description, duties of excise" (1938) 60 CLR, at p 304

Furthermore, the exposition that a tax "upon goods" is one which bears "a close relation to the production or manufacture, the sale or the consumption of goods and must be of such a nature as to affect them as the subjects of manufacture or production or as articles of commerce" seems to me to have paved the way for the later decision in Parton v. Milk Board (Vict.) (1949) 80 CLR 229 , that a tax imposed, not upon the producer of milk, but upon a sale made after the producer had disposed of his milk to a dairyman, was a duty of excise. From this extension Fullagar J. would have withdrawn in Dennis Hotels Pty. Ltd. v. Victoria (1960) 104 CLR 529, at pp 555 and 556 , but his Honour's view was not accepted by any other member of the Court. (at p64)

3. It was in Bolton v. Madsen (1963) 110 CLR 264 , that the threads of all the earlier decisions, including Dennis Hotels Pty. Ltd. v. Victoria were brought together in the following statements:

"It is now established that for constitutional purposes duties of excise are taxes directly related to goods imposed at some step in their production or distribution before they reach the hands of consumers. . . . The tax is a duty of excise only when it is imposed directly upon goods or, to put the same thing in another way, when it directly affects goods, and to establish no more than that its imposition has increased the cost of putting goods upon the market by a calculable amount falls short of establishing the directness of relation between the tax and the goods that is the essential characteristic of a duty of excise" (1963) 110 CLR, at p 271

In answer to the appellant's reliance upon Matthews v. Chicory Marketing Board (Vict.) (1938) 60 CLR 263 it was pointed out that in that case Dixon J. had said of the levy in question:

". . . it has placed upon an essential step in production, namely, planting, an impost computed quantitatively."

The formulation of the criterion in Bolton v. Madsen (1963) 110 CLR 264 accommodated the actual decisions in Matthews v. Chicory Marketing Board (Vict.) (1938) 60 CLR 263 and Parton v. Milk Board (Vict.) (1949) 80 CLR 229 but it was, I think, significantly narrower than some of the dicta to be found in the latter case. Thus no approval was given to the statement of Rich and Williams JJ. that

"the production or manufacture of an article will be taxed whenever a tax is imposed in respect of some dealing with the article by way of sale or distribution at any stage of its existence, provided that it is expected and intended that the taxpayer will not bear the ultimate incidence of the tax himself but will indemnify himself by passing it on to the purchaser or consumer" (1949) 80 CLR, at p 252

This statement echoes earlier far-reaching statements of Rich J. in The Commonwealth and Commonwealth Oil Refineries Ltd. v. South Australia that

"the Constitution gives exclusive power to the Commonwealth over all indirect taxation imposed immediately upon or in respect of goods, and does so by compressing every variety thereof under the term 'customs and excise'" (1926) 38 CLR, at p 437

This went too far. (at p65)

4. In Anderson's Pty. Ltd. v. Victoria (1964) 111 CLR 353 , the Court applied Bolton v. Madsen (1963) 110 CLR 264 and decided that a State law imposing stamp duty upon hire-purchase agreements calculated upon the amount to be paid thereunder by instalments for goods - less charges for interest, insurance, etc. - did not impose a duty of excise although it is apparent that such a tax could have been thought to have some relationship to the production or manufacture of goods. Its consequence was certainly that goods would cost more when bought on credit, and there is a link between the manufacture and the retail price of goods. (at p66)

5. The decisions of the Court in Dennis Hotels Pty. Ltd. v. Victoria (1960) 104 CLR 529 and Anderson's Pty. Ltd. v. Victoria (1964) 111 CLR 353 show, I think, that the high water mark had been reached in Parton v. Milk Board (Vict.) (1949) 80 CLR 229 and that the Court was not prepared to go as far as Dixon C.J. did in Dennis Hotels Pty. Ltd. v. Victoria (1960) 104 CLR 529 and regard any tax directly affecting commodities as a duty of excise. In that case the Chief Justice dissented because he regarded the statement that

"no liquor can be bought by retail in Victoria unless in respect of it someone has paid, has become liable to pay or will be placed in a situation which will from the necessity of the case involve him in paying to the Victorian Treasury an amount equal to six per cent of the wholesale selling price of the liquor" (1960) 104 CLR 529, at p. 539.

as decisive that the tax there under consideration was a tax directly upon goods and therefore a duty of excise. The majority of the Court did not regard the Chief Justice's description of the consequences of the legislation as establishing that the tax imposed thereby was a tax "upon goods". (at p66)

6. I do not think that the Court sshould go beyond its statement of principle in Bolton v. Madsen (1963) 110 CLR 264 as applied in Anderson's Case (1964) 111 CLR 353 and the question for me, therefore, in this case is whether s. 101A of the Stamp Act, 1921-1967 (W.A.), is within it. (at p66)

7. What that section does is to require a person, who has supplied goods or rendered services in Western Australia, to issue an acknowledgment to be duly stamped as if it were a receipt, for any payment for such goods or services made outside Western Australia, whether made to that person or - by virtue of a deeming provision - to any other person. The duty imposed by the Act upon receipts is ad valorem stamp duty. (at p66)

8. The question here is whether the obligation, which it is claimed that the section would impose upon the defendant as a supplier in Western Australia of iron ore mined in Western Australia in respect of payments therefor received outside Western Australia, is an obligation to pay what is a duty of excise as already described. (at p66)

9. In my opinion it is not. I will state my reasons for this conclusion shortly. (at p66)

10. The mining or supply of the iron ore itself attracts no liability under the section. The obligation imposed is to issue an acknowledgment if it so happens that payment for the iron ore so supplied is made outside Western Australia. In that eventuality the section requires, under penalty, the giving of an acknowledgment. Upon compliance, and only then, is there an obligation to pay an ad valorem duty as if the acknowledgment were a receipt. Let it be supposed that a payment for iron ore so supplied is made to the plaintiff itself outside Western Australia. Upon such payment being made the plaintiff incurs an obligation to give an acknowledgment. If it fails to do so it commits an offence but incurs no liability to pay stamp duty. How then is the stamp duty a tax upon the goods supplied ? It is not rather a tax upon the giving of the acknowledgment ? Such a tax is a long way from a tax upon production, and, for the obligation to pay money to arise, the following steps after the supply of goods would be necessary : 1. the receipt of a payment outside Western Australia ; and 2. the giving of an acknowledgment. Moreover, where the payment outside Western Australia is not made to the supplier but to some other person, the operation of the deeming provision is necessary to involve liability. To make a payment to "B", the occasion for imposing an obligation upon "A" which, if fulfilled, will then entail the payment of tax by "A", is hardly a tax upon the goods produced and supplied by "A". Suppose "A", who supplies goods in Western Australia, becomes bankrupt and the person to whom the goods have been supplied pays the purchase price to "A"'s trustee in bankruptcy outside Western Australia. "A" then becomes liable to give an acknowledgment and, if and when he does so, to pay stamp duty. In such a case can it fairly be said that the tax is upon "A"'s earlier production of goods ? Surely in such a case it is apparent that the criterion of liability is the giving of the acknowledgment ? By fulfilling his obligation to give an acknowledgment "A" would then become personally liable to pay the duty imposed by the section. It would not be the liability of the trustee in bankruptcy who had received payment for the goods produced. (at p67)

11. To treat the obligation imposed by the section as the levying of a duty of excise would, I think, go beyond what has been established by the cases to which I have referred. (at p67)

12. Other points were taken concerning the competence of the Parliament of Western Australia to impose a liability upon a person in Western Australia who supplies goods in Western Australia, because, an essential element in the imposition of liability, is the giving of an acknowledgment for payment made outside of Western Australia. It is sufficient to say that there is sufficient connexion between Western Australia and the person within Western Australia supplying goods in Western Australia to support the imposition by the Parliament of Western Australia of obligations upon that person, notwithstanding that an event happening outside Western Australia is made part of the occasion for the imposition of the obligation. The receipt, outside Australia, of income by a resident of Australia, can be made assessable income for the purposes of Australian taxation laws and there is no principle which confines legislative power to events happening within the territory, although there is, of course, a principle against attributing extra-territorial effect to laws not clearly requiring this. This principle has no application here. I think the statement of Dixon J. in Broken Hill South Ltd. v. Commissioner of Taxation (N.S.W.) (1) is ample warrant for rejecting the submission against validity on the ground that, even if the section does not impose a duty of excise, it is beyond the legislative competence of the Parliament of Western Australia. (at p68)

13. I agree with Kitto J. upon the answers to be given to the questions asked. (at p68)

WINDEYER J. I am of the same opinion as the Chief Justice. I publish my reasons.
WINDEYER J. The provisions of s. 101A of the Stamp Act, 1921-1968 of Western Australia are in my opinion within the general legislative competence of the Parliament of Western Australia as being for the peace, order and good government of the State. (at p68)

2. However, I have come to the conclusion that the Act can in some cases, and does in the case before us, amount to the imposition of a duty of excise ; and therefore that to that extent it is beyond the power of the State. The provisions which are challenged appear in an Act imposing stamp duties. But - using the words of Starke J. in Matthews v. Chicory Marketing Board (Vict.) (2) - the real nature of a tax "does not depend upon the name given to the tax or levy in the taxing Act, but upon its operation and effect, as gathered from the language of the Act itself". The statutory provisions in question are certainly not like Stamp Acts of the common and traditional kind, which make dutiable instruments, of prescribed kinds, which persons have voluntarily executed to embody a transaction and give it legal force and validity or to record it. The Act in question seeks to compel persons to bring an instrument into existence acknowledging a receipt of money, merely so that, by means of a stamp duty upon it, an ad valorem levy upon moneys received can be collected. It is, as I see it, simply part of the machinery enabling the State to collect a duty imposed upon gross receipts of money. If the moneys be received as the price paid to a producer of goods by the person to whom he supplied them, the duty would fall upon an essential part of the transaction between the producer and his customer in relation to the supply of goods. It would be levied at, and on, an essential step in the commercial production or distribution of a commodity produced in Australia. A tax calculated directly by reference to the price at which goods are sold by the producer of them to a buyer answers directly, I think, to the description of a duty of excise in s. 90 of the Constitution as now accepted in this Court in Anderson's Pty. Ltd. v. Victoria (1964) 111 CLR 353 It seems to me to be then indistinguishable in substance from a sales tax. I therefore agree in the conclusions and the reasoning in the judgments of the Chief Justice and of my brother Owen, which I have had an opportunity of reading and which make it unnecessary for me to elaborate my opinion. I confess that I have hesitated because I think I must curtail some of my own earlier ideas of what amounts to an excise duty in order to conform with the view of the majority of the Court in the Dennis Hotels Case (1960) 104 CLR 529 But, having done so and having given the best attention that I can to the present case, I have come firmly to the conclusion that the question should be answered as the Chief Justice proposes. (at p69)

OWEN J. These proceedings by way of originating summons which were instituted in the Supreme Court of Western Australia were removed into this Court under s. 40A of the Judiciary Act. (at p69)

2. The facts are that the defendant, a company incorporated in Victoria and registered in Western Australia as a foreign company, was at all material times carrying on in Western Australia the business of mining and selling iron ore. In the course of that business it sold and delivered ore mined by it to Japenese buyers under f.o.b. contracts providing for shipment from a Western Australian port. Payment of the price of the ore thus sold was made by the buyers to the defendant at places outside the State of Western Australia. (at p69)

3. In January 1967 the defendant gave notice in writing under s. 99A (1) of the Stamp Act of Western Australia electing to pay duty under that section instead of under s. 99A (2) of the Act, and from 1st February 1967 until 16th October 1967, when it cancelled that notice, it made returns under s. 99A (1). It did not include in those returns the amounts received by it outside the State of Western Australia in payment of the price of the ore supplied by it under the contracts to which I have referred earlier. In respect of such payments it caused receipts or notes or memoranda acknowledging the receipt of the payments to be issued to the buyers of the ore but such receipts, notes or memoranda have not been brought into Western Australia and no duty under the Act has been paid upon them. (at p70)

4. The questions that arise relate to s. 101A of the Act and one of them (question C) asks whether any stamp duty which might otherwise be payable by the defendant under that section in respect of payments received by it outside Western Australia in payment of the price of the iron ore supplied and sold by it is a duty of excise within the meaning of s. 90 of the Commonwealth Constitution. Another question (question B) asks, in substance, whether, apart from the matter raised by question C, s. 101A is beyond the legislative power of the Parliament of Western Australia. As to this last question I have no doubt that the answer should be "No" and I do not wish to add anything to the reasons given by the Chief Justice and by Kitto J. in the judgments which have just been delivered. (at p70)

5. The problem raised by question C is, however, one which has troubled me greatly. (at p70)

6. Section 101A deals (inter alia) with cases in which goods have been supplied in Western Australia by a person in that State and payment for such goods has been received or made outside the State. In such cases the payment is to be deemed to have been received by or made to the person who has supplied the goods provided, as I read the section, that he is in Western Australia at the time of the receipt. In such case he is required within thirty-one days of the payment being received or made to issue or cause to be issued in Western Australia to the person who made the payment, a note or memorandum acknowledging the amount of the payment, stamped with duty in accordance with the Act, as if it were a receipt. (at p70)

7. There is no doubt that the duty imposed is a tax, the amount of which is measured by the amount received. For the defendant it is contended that the tax which s. 101A, when read with the other provisions of the Act and the Second Schedule, imposes is, in some but not in all circumstances, a duty of excise because, it is said, in a case such as the present one, the tax is imposed upon a step taken by the producer of a commodity in the course of putting that commodity into consumption. That step, it is said, consists of the supply of his product by its producer to a buyer and the receipt by the former of the price. It is rightly conceded that there are many kinds of transactions falling within the words of the section in which it could not be said that the impost would constitute a duty of exise. But that does not, I think, provide an answer to the defendant's contention that, as applied to transactions of which the present case is an example, the impost is in truth a duty of exise. I can see no good reason why a law imposing a tax in general terms which would apply to a wide range of transactions should not, in respect of some only of those transactions, be a duty of exise while it could not be regarded as being such a duty in respect of others. (at p71)

8. I have come to the conclusion that the defendant's submission should be upheld and that the tax which would otherwise be imposed upon the defendant by virtue of the provisions of s. 101A is a duty of exise. The defendant's liability to tax is attracted by the existence of two facts. The first is that, having produced a commodity, namely iron ore, in Western Australia, it has there supplied it to a buyer under a contract of sale, the second is that it has received payment outside Western Australia for selling and supplying that commodity. It seems to me that to impose a tax, in the nature of an ad valorem tax, upon the receipt of the price of the commodity produced and sold by it imposes a burden upon a dealing with the commodity in the course of its progress from production to consumption. If that is so, then, as was said by Rich and Williams JJ. in Parton's Case (1949) 80 CLR 229, at p 252 , the imposition is to be regarded as a method of taxing the production of that commodity. To the same effect is a passage in the judgment of Dixon J. (as he then was) in the same case. His Honour said, "a tax upon a commodity at any point in the course of distribution before its reaches the consumer produces the same effect as a tax upon its manufacture or production" (1949) 80 CLR, at p 260 To impose a tax upon the receipt of the price for which a commodity is sold by its producer is, in my opinion, to tax a dealing with the commodity and such a tax is in reality a sales tax notwithstanding the fact that it takes the form of a duty upon an instrument which the recipient of the price of the commodity is required to bring into existence. (at p71)

9. I would answer question C "Yes". (at p71)

Orders

Originating summons to be amended to substitute the following questions for those originally asked:
A. On the true construction of the Stamp Act, 1921-1968,
independently of any question of construction or validity raised by questions B and C hereof, in respect of each payment received in a place outside the State of Western Australia from Japanese buyers of iron ore mined and so won by the defendant at Tom Price in the State of Western Australia and shipped from the Port of Dampier in that State to such buyers in Japan (under f.o.b. contracts for the supply of the same), Is the Defendant Obliged by s. 101A -

(1) to deliver or cause to be delivered to the person who made each such payment a note or memorandum acknowledging such wherever such person may be ; or

(2) to do or cause to be done such acts as will or may reasonably be expected to result in the delivery to such a person of such a memorandum wherever such person may be ;

(3) if the answer to (1) is Yes, (a) to deliver such note or memorandum in the State of Western Australia ;

(b) to cause the same to be delivered in the State of Western Australia ;

(4) if the answer to (2) is Yes, (a) to do such acts in the State of Western Australia ;

(b) to cause in the State of Western Australia those acts to be done anywhere ;

(c) to cause (anywhere) those acts to be done in the State of Western Australia ;

(5) in cases where the person who made such payment is not in the State of Western Australia, (a) to bring into or cause to be brought into existence in the State of Western Australia such a note or memorandum and to place or cause to be placed thereon duty stamps of an amount calculated in accordance with s. 101A of the said Act and the Schedule thereto prior to the delivery of such a note or memorandum;

(b) to place or cause to be placed on such a note or memorandum outside the State of Western Australia duty stamps of an amount calculated in accordance with s. 101A of the said Act and the said Schedule.

B. If the answer to any part of question A hereof is

Yes, is s. 101A of the said Act, in so far as it applies to the defendant, outside the legislative power of the Parliament of the State of Western Australia otherwise than by reason of s. 90 of the Constitution of the Commonwealth of Australia. C. Is any stamp duty otherwise payable under s. 101A of the said Act in respect of payments received by the defendant for the price of iron ore won and shipped by it as aforesaid a duty of exise within the meaning of s. 90 of the Constitution of the Commonwealth of Australia.

Order that the question asked in the amended originating summons be answered as follows : Questions A and B : Unnecessary to answer. Question C : Yes.

The plaintiff to pay the defendant's costs.