Presumption against imposition of incontestable tax.

Stamp Duties Act 1923 (SA) ss 23, 24.

BRENNAN CJ, DAWSON AND TOOHEY JJ. By a deed dated 8 December 1987, Cruden Investment Pty Ltd ("Cruden") transferred to Telegraph Investment Company Pty Ltd ("Telegraph") 41,968,750 shares in The News Corporation Ltd ("News Corporation") for $671,500,000. News Corporation is incorporated in South Australia and keeps its share register in that State. Cruden maintains that at the relevant time it also had a branch register in Darwin. The shares transferred by Cruden were said to be on the Darwin regist er. The deed transferring the shares was not submitted for the assessment of stamp duty in South Australia. However, the South Australian Commissioner of Stamps conducted an investigation as a result of which he formed the opinion that the deed was chargeable with stamp duty as a conveyance on sale of stocks or marketable securities. He assessed duty at $4,029,000.

2. Section 23 of the Stamp Duties Act 1923 (SA), so far as is relevant, provided:

"(1) The Commissioner may (whether requested to do so or not)

(a) whether duty is payable in a particular case;

(b) what amount of duty is payable in a particular case.

(2) If the Commissioner is of the opinion that an instrument is

not chargeable with duty, the instrument may be stamped with a particular stamp denoting that it is not chargeable with duty.

(3) If the Commissioner is of the opinion that an instrument is

chargeable with duty, he shall assess the duty with which it is, in his opinion, chargeable and, when the instrument is duly stamped in accordance with the assessment of the Commissioner, it may also be stamped with a particular stamp denoting that it is duly stamped.

(4) Every instrument stamped with the particular stamp denoting

either that it is not chargeable with duty or that it is duly stamped shall be admissible in evidence and shall be available for all purposes, notwithstanding any objection relating to duty.

"(1) Any person who is dissatisfied with the assessment of the

Commissioner may, on payment of duty in accordance therewith -

(a) within fourteen days after the date of the Commissioner's

assessment, forward to the Treasurer a statement of the grounds of his objection to the assessment; or

(b) within twenty-one days after the date of the Commissioner's

(2) The Treasurer may, on receipt of a statement of grounds of

objection, confirm or modify the Commissioner's assessment and, if the assessment is reduced, any excess duty paid by the objector will be refunded together with interest on the excess, from the date of payment of the duty, at the rate fixed under subsection (10).

(3) If upon the confirmation or modification by the Treasurer of

the Commissioner's assessment the person is still dissatisfied, he may, within twenty-one days after the Treasurer's decision is communicated to him, appeal to the Supreme Court.

(4) For the purpose of any appeal to the Supreme Court under this

section, the appellant may require the Commissioner to state and sign a case setting forth the question upon which his opinion was required and the assessment made by him.

(5) The Commissioner shall thereupon state and sign a case

accordingly and deliver it to the appellant and, upon his application, the case may be set down for hearing in the Supreme Court.

(6) Upon the hearing of such a case (at least seven days notice of

which shall be given to the Commissioner), the Court shall determine the question submitted and assess the duty, if any, chargeable under this Act.

(7) If the Court finds that the appellant has paid duty that is

not chargeable under this Act, or has paid duty in excess of the amount chargeable under this Act, the Court will order the Commissioner -

(a) to refund the amount that was not properly chargeable together

with interest on that amount, from the date of payment of the duty, at the rate fixed under subsection (10); and

(b) to pay the appellant's costs of the appeal.

(8) If the assessment of the Commissioner is confirmed by the

Court, the costs incurred by the Commissioner in relation to the appeal shall be ordered by the Court to be paid by the appellant to the Commissioner.

3. Pursuant to s 24(1)(a), Telegraph paid the duty assessed by the Commissioner and forwarded to the Treasurer a statement of grounds of objection to the assessment. The Treasurer confirmed the Commissioner's assessment. By a notice of appeal dated 22 September 1989 Telegraph and Cruden appealed to the Supreme Court of South Australia against the Treasurer's decision upon the basis that, contrary to the conclusion reached by the Commissioner, the deed in question did not relate to property situated in South Australia or to any matter or thing to be done in South Australia. The notice sought a declaration that the instrument was not liable to duty under the Stamp Duties Act, an order setting aside or quashing the assessment made by the Commissioner and an order for the repayment to Telegraph of the duty paid together with interest.

4. Having lodged the notice of appeal, Telegraph and Cruden required the Commissioner to state and sign a case pursuant to s 24(4) for the purpose of the appeal. The Crown Solicitor prepared a draft case stated on behalf of the Commissioner and forwarded it to the solicitors for Telegraph and Cruden. There was a considerable amount of correspondence between the parties concerning the content of the case stated. In particular, the Commissioner refused to accept a requirement by Telegraph and Cruden that certain facts be included by which they sought to demonstrate that a branch register had been established in Darwin and that the shares in question were on that register. It appears that his refusal was upon the basis that those facts were not before him when he made his assessment. Eventually, no agreement having been reached, the Commissioner signed a case stated dated 2 July 1993 and filed it in the Supreme Court.

5. Telegraph and Cruden then made application in the Supreme Court seeking leave to file affidavits setting out the facts surrounding the transfer of the shares by Cruden to Telegraph. The application was referred to a full court for determination. The full court gave the leave sought(1). It is from that decision that this appeal is brought.

6. The Commissioner contends that the only appeal afforded by s 24 of the Stamp Duties Act is by way of case stated. That, he says, means that the Supreme Court is bound by the facts stated by him in the case which he signed and has no jurisdiction to receive evidence or to find facts in addition or contrary to those stated. The position is, upon the Commissioner's argument, the same as it was said to be in Mack v Commissioner of Stamp Duties (NSW)(2) in relation to s 18 of the Stamp Duties Act 1898 (NSW). In that case Isaacs J said(3):

"It cannot be too clearly understood that on a 'case stated' the

facts stated are to be taken as the ultimate facts for whatever purpose the case is stated. The Court is not at liberty to draw inferences unless that power is, by express words or by necessary implication, specially conferred by some enactment. ... No power is contained in sec 18 of the Stamp Duties Act to draw inferences, and the Court's only jurisdiction is to decide 'the question submitted' on the basis of what the Commissioner states the facts to be. If, therefore, the matter depended on a conclusion of fact necessary to be arrived at either in addition or contrary to the facts as stated in the case, there would be no jurisdiction in the Court to determine the facts or to give any judgment other than to send the case back for definite statement by the Commissioner as to the conclusion he arrived at."

7. Section 18 of the New South Wales Act as it was when Mack v Commissioner of Stamp Duties (NSW) was decided bears similarities to s 24 of the South Australian Act. Indeed, both sections have their origins, as do similar provisions in other States, in s 14 and s 15 of the Stamp Duties Act 1850 (UK) (13 and 14 Vict c 97). But as we shall point out in a moment there are significant differences. It is to be noted that s 18 of the New South Wales Act subsequently appeared in the Stamp Duties Act 1920 (NSW) in an altered form as s 124, under which the court was empowered to cause any additional facts which it considered necessary, or any disputed facts, to be determined(4). The alteration emphasises the unsatisfactory nature of the procedure for which s 18 originally provided, that being a procedure which remained in other States and attracted critical comment from time to time.

8. In Cuming Campbell Investments Pty Ltd v Collector of Imposts(5), speaking of the equivalent Victorian section, s 33 of the Stamps Act 1928 (Vic), O'Bryan J said:

"The absence of any direction as to the function of the Court upon

the hearing of an appeal, otherwise than by way of case stated, and the absence of any express power to assess duty in such a case, strongly suggest that the only mode of appeal intended to be granted by this section is by way of case stated."

9. Macfarlan and Lowe JJ agreed with O'Bryan J and Lowe J added(6):

"I do not regard the position so disclosed as a satisfactory one

for the taxpayer and the Legislature may now think it desirable to empower the Court which is to assess the duty with which it thinks an instrument chargeable also to investigate for itself the facts upon which its opinion depends. The Legislature of New South Wales has so acted".

10. Notwithstanding that traditionally stamp duties are seen as a tax upon instruments rather than transactions(7), questions of fact, particularly as to value, are nevertheless apt to arise in relation to them. This led Fullagar J to remark in Francis v Commissioner of Stamp Duties (NSW)(8) that:

"the procedure by way of 'case stated' is prima facie an

inappropriate and defective procedure, because the normal function of a case stated is to place ultimate (as distinct from evidentiary) facts before a court with a view to obtaining a decision on a question of law which those ultimate facts raise".

Fullagar J went on to say(9) that s 124 of the Stamp Duties Act 1920 (NSW), in allowing the court to try issues of fact, treated the case stated procedure "merely as a convenient method of bringing before the Supreme Court any question of fact or of law which may be in dispute between the commissioner and a taxpayer"(10). But where the procedure is strictly confined to a case stated there is force in the observation of Adam J in Re Turner and Chadderton's Transfers that(11):

"there appears to be no effective remedy to the taxpayer should

facts as to which a bona fide dispute may exist be stated by the Comptroller in a way which simply states the taxpayer out of Court".

11. In England, where the case stated procedure for appealing against an assessment of stamp duty originated, the same difficulties do not appear to have been experienced, nor does it seem to have been established that such a procedure precludes the court from finding facts in the event of a dispute. In Ingram v IRC(12), Vinelott J, in speaking of that procedure, said:

"If the assessment is challenged and the commissioners are

required to state a case, they must set out in the case what they consider to be the facts and circumstances governing the liability of the instrument to duty. If the taxpayer disputes the accuracy or completeness of the facts and circumstances so stated, the dispute must be resolved by the court.

12. In the field of stamp duty, such disputes are very rare. There is only one reported case in which reference is made to the admission of oral evidence (see Speyer Brothers v Inland Revenue Commissioners(13)) though it is said in Sergeant and Simms on Stamp Duties(14) that oral evidence was also admitted in Holmleigh (Holdings) Ltd v Inland Revenue Commissioners(15)."

13. However, whether the adoption of the case stated procedure precludes the reception of evidence to resolve disputed questions of fact must depend upon the terms of the legislation laying down the procedure. As the 1920 amendment to the New South Wales legislation demonstrates, it is possible to couple a case stated procedure with the finding of facts in addition or contrary to those stated, however anomalous it may at first seem. It is significant, therefore, that s 18 of the Stamp Duties Act 1898 (NSW), which was the basis of the decision in Mack v Commissioner of Stamp Duties (NSW)(16), is materially different from ss 23 and 24 of the South Australian Act. Section 18 provided:

"(1) Any person dissatisfied with the assessment of the

Commissioner may within thirty days after the date thereof, and on payment of duty in conformity therewith, appeal against such assessment to the Supreme Court, and may for that purpose require the Commissioner to state and sign a case setting forth the grounds upon which his assessment was made.

(2) Any person dissatisfied with the assessment of the

Commissioner may within thirty days after the date thereof, and on payment of duty in conformity therewith, appeal against such assessment to the Minister, who may confirm or modify such assessment; and if such assessment is not confirmed, the amount of duty to be ultimately retained shall be that fixed by the Minister, and the difference shall be refunded to the appellant."

It is to be noted that s 18 refers to a case "setting forth the grounds" upon which the assessment was made, whereas s 24 of the South Australian Act speaks of a case "setting forth the question" upon which the Commissioner's opinion was required and "the assessment made by him". The South Australian provision does not in terms require the Commissioner to state the facts as does the New South Wales provision. But more significantly, s 23 of the South Australian Act was amended in 1986(17) to provide that the Commissioner may express an opinion "whether requested to do so or not", that is to say, of his own motion, and so bring s 24 into operation. The Act previously provided that the Commissioner might act under s 23 only upon the requirement of some other person. At the same time as this amendment was made, the Commissioner was given wide investigative powers(18). Indeed, in this case the Commissioner acted of his own motion in expressing an opinion as to the amount of duty payable, having first exercised his investigative powers.

14. Section 24 was not amended at the same time as s 23, but the amended s 23 must be read together with s 24 in accordance with the principle expressed in s 15 of the Acts Interpretation Act 1901 (Cth). The principle is that every Act amending another Act shall, unless the contrary intention appears, be construed with such other Act and as part of it. The Commonwealth Acts Interpretation Act has no application to South Australian legislation and there is no South Australian counterpart to s 15. However, that section is declaratory and represents the modern approach to the construction of an amended statute(19). The result is that both the Act which is amended and the amending Act are to be read together as a combined statement of the will of the legislature. Thus the effect of the amending Act may be to alter the meaning which remaining provisions of the amended Act bore before the amendment.

15. Whatever meaning s 24 of the South Australian Stamp Duties Act may have had before the amendment of s 23, it must now be construed in the light of that amendment. As a consequence, s 24(4), which provides that the appellant may "require the Commissioner to state and sign a case setting forth the question upon which his opinion was required" (our emphasis), cannot now prescribe the procedure for an appeal in every case because under s 23 the Commissioner may express an opinion without being required to do so. That is what happened in this case. It is unnecessary to decide whether the procedure prescribed by sub-s (4) must be followed when that sub-section has application; it is sufficient to observe that, the Commissioner having acted of his own motion, it has no application in this case. But that does not leave the appellant without a remedy. The right to appeal under s 24 is not dependent upon sub-s (4); it is given by sub-s (3) independently of the procedure prescribed by sub-s (4). The Rules of the South Australian Supreme Court(20) provided for such an appeal to be heard by a single judge and to be by way of rehearing. And there is the inherent power of the court to govern its own proceedings. Section 24(6) of the Stamp Duties Act expressly gives the court power upon the hearing of a case stated to determine the question submitted and assess the duty, if any, chargeable under the Act and, under s 24(7), the court may find that the appellant has paid duty that is not chargeable or is in excess of the amount chargeable under the Act and may order a refund. This latter remedy cannot be dependent upon there being stated a case which excludes any extrinsic fact.

16. In fact, Telegraph and Cruden appealed by way of notice of appeal as a step quite separate from their requiring the Commissioner to state a case under s 24(4). In any event, for the reason given, that subsection had no application in the circumstances. The requirement under the rules that the appeal be by way of rehearing presents no obstacle, notwithstanding that the Commissioner may be seen to have made his assessment without a hearing. The term "rehearing" is not by itself a term of art and encompasses a number of different meanings(21). As Mason J observed in Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd(22):

"Where a right of appeal is given to a court from a decision of an

administrative authority, a provision that the appeal is to be by way of rehearing generally means that the court will undertake a hearing de novo, although there is no absolute rule to this effect. ... The nature of the proceeding before the administrative authority may be of such a character as to lead to the conclusion that it was not intended that the court was to be confined to the materials before the authority. There may be no provision for a hearing at first instance or for a record to be made of what takes place there. The authority may not be bound to apply the rules of evidence or the issues which arise may be non-justiciable. Again, the authority may not be required to furnish reasons for its decision. In all these cases there may be ground for saying that an appeal calls for an exercise of original jurisdiction or for a hearing de novo."

Those remarks are apt to govern the situation in this case and the appeal should be by way of a hearing de novo.

17. We have been able to reach our conclusion that this appeal should be dismissed simply as a matter of construction of the relevant sections of the Stamp Duties Act, without reliance upon any principle of general application. But some reassurance is, we think, to be gained from the fact that to adopt the construction for which the Commissioner contends would be to preclude the taxpayer from placing disputed matters before the court. The unfairness of that result is obvious. It would be to deny taxpayers access to the court for the proper determination of their rights and for a statute to do that would, in our view, require clear and unambiguous words(23). Perhaps, upon the authorities, such clear and unambiguous words were to be found in other stamp duties legislation, but they are not to be found in the South Australian Act.

McHUGH AND GUMMOW JJ. This appeal by the South Australian Commissioner of Stamps ("the Commissioner") from a decision of the Full Court of the Supreme Court of South Australia(24) turns upon the construction of provisions of the Stamp Duties Act 1923 (SA) ("the Act") whereby the Supreme Court deals with appeals by persons dissatisfied with an assessment of duty by the Commissioner. As required by the Act, the respondents paid the duty assessed by the Commissioner before instituting their appeal. The Commissioner submits that the Full Court(25) erred in making an order whereby the respondents were granted leave to file affidavits as to facts additional to, or in conflict with, those set out in the case stated by the Commissioner to the Supreme Court.

2. We conclude that, upon the true construction of the Act, the order granting leave to file such affidavits was properly made in aid of the appeal instituted by the respondents but the case stated is to be disregarded as an irregularity.

3. The fundamental proposition for which the respondents contend is that, if they are denied the opportunity to lead evidence of those facts, the result will be that duty will have been exacted where, by law, it was not exigible.

The construction of the Act

4. As a starting point for the construction of the legislation, the respondents refer to the following statement by Lord Goff of Chieveley in Woolwich Building Society v IRC(26):

"(T)he retention by the state of taxes unlawfully exacted is

particularly obnoxious, because it is one of the most fundamental principles of our law - enshrined in a famous constitutional document, the Bill of Rights 1688 - that taxes should not be levied without the authority of Parliament; and full effect can only be given to that principle if the return of taxes exacted under an unlawful demand can be enforced as a matter of right."

The respondents' submission is that, in the circumstances of the present case, full effect is not given to that principle, if on its proper construction, the Act imposes an "incontestable" tax. This will be so if the liability of the taxpayer is made to depend upon specified criteria but the taxpayer is denied the right to resist an assessment by proving in the courts that the criteria of liability have not been satisfied(27). Here the Commissioner does not sue to recover duty. Rather, the duty was assessed by him after the exercise of inquisitorial powers given by the Act. The respondents, being dissatisfied with the assessment, were obliged to pay the duty before testing the matter in the Supreme Court so that they might, if successful, obtain a refund. The Supreme Court held that, in this proceeding, the respondents might lead evidence to show that, in truth, the relevant criteria of liability had not been satisfied.

5. The Bill of Rights(28) made a number of declarations "for the vindicating and asserting" of "ancient rights and liberties" and Art 4 stated:

"(t)hat levying money for or to the use of the Crown, by pretence

of prerogative, without grant of Parliament, for longer time, or in other manner than the same is or shall be granted, is illegal."

6. In the eastern colonies of Australia where s 24 of the Australian Courts Act 1828 (Imp)(29) applied, the Bill of Rights was a statute in force "within the realm of England" in 1828, and, as such, applied except so far as later altered by local statute(30). In 1828, what became the colonies of Victoria and Queensland formed part of New South Wales and the Australian Courts Act applied directly to what was then Van Diemen's Land(31). On the other hand, in South Australia and Western Australia, it appears simply to have been regarded as axiomatic from the beginnings of European occupation that a statute such as the Bill of Rights would apply under the common law principles on the reception of law in settled colonies(32). Section 4A of the Acts Interpretation Act 1915 (SA) states:

"For the purposes of the law of the State, the State will be taken

to have been established on the twenty-eighth day of December, 1836."

Section 73 of the Interpretation Act 1984 (WA) is to like effect.

7. However, in 1828, and at the later establishment of the colonies of Western Australia and South Australia, Art 4 of the Bill of Rights could apply to those colonies only proleptically. Its full effect would await the development of local parliamentary institutions(33).

8. It should be noted that an incontestable impost levied by law of the Commonwealth is not a tax in the constitutional sense and the law imposing it is not a law with respect to taxation within s 51(ii) of the Constitution. In that way, an incontestable tax is invalid(34). On the other hand, the respondents do not contend that, at the State level, the issue is more than one of statutory construction in the particular case. But what is at stake is an important principle of government and of the rule of law. Accordingly, legislation which empowers an officer of a State, such as the Commissioner, to assess ex parte a liability to pay an impost upon satisfaction of specified criteria, but which requires the taxpayer to pay the duty and conditions its recovery upon success in a court proceeding in which the taxpayer is restricted in proving the case that the criteria of liability were not satisfied, must be clearly expressed "in unmistakable and unambiguous language"(35).

9. The first respondent, Telegraph Investment Company Pty Limited ("Telegraph"), is a company incorporated in the State of Queensland. The second respondent, Cruden Investment Pty Limited ("Cruden"), is incorporated in the State of Victoria. By deed made 8 December 1987 ("the Deed"), Cruden transferred to Telegraph 41,968,750 shares in The News Corporation Limited ("News"), in consideration of the sum of $671,500,000. The Deed was executed in New South Wales. News is incorporated in South Australia.

10. At the date of the Deed, s 256 of the Companies (South Australia) Code ("the Code") required a company incorporated thereunder or under any corresponding previous law in South Australia to keep a register of its members. This, pursuant to s 547(1)(b), might be kept at the office within the State of a person with whom the company arranged to make up the register on its behalf. Section 262 of the Code authorised a company having a share capital to cause a branch register of members to be kept in any place outside the State. Such a branch register was deemed to be part of the register of members of the company (s 262(3)) and, within 28 days after an entry was made in a branch register, the company was obliged by s 262(5) to transmit to the place at which the principal register was kept a copy of that entry. Section 262(5) also required the company to cause to be kept at the place where it kept its principal register a duplicate of the branch register and this was deemed, for the purposes of the Code, to be part of the principal register. Section 262(6) stated:

"Subject to the provisions of this section with respect to the

duplicate branch register, the shares registered in a branch register shall be distinguished from the shares registered in the principal register, and no transaction with respect to any shares registered in a branch register shall, during the continuance of that registration, be registered in any other register."

11. The following statement of the facts is drawn from the leading judgment in the Full Court, that of Perry J.

12. The share register of News was stored and maintained on a computer at the Adelaide office of Interstate Share Registry Pty Ltd. The share register listed members in alphabetical order and indicated a capital city of a State or Territory of Australia with respect to each entry, so as to indicate on which branch register of News a particular parcel of shares was said to be situated. On 8 December 1987, when the Deed was executed, the shares held by Cruden, which were transferred to Telegraph, were designated on the register as a "Darwin" entry.

13. No party to the Deed submitted it for assessment to duty by the Commissioner. However, in 1988, authorised officers of the Commissioner inspected instruments and records in the premises of News at Adelaide. As a consequence, the Commissioner became aware of the existence of the Deed and made further investigations. These included an oral examination of an officer of News pursuant to s 27A of the Act. The sequel was the assessment by the Commissioner which gives rise to this litigation.

14. What is now numbered s 27A was inserted in the Act by s 7 of the Stamp Duties Act Amendment Act (No 2) 1986 (SA) ("the 1986 Act")(36) . The section authorises the Commissioner, for the purposes of determining whether duty is payable in a particular case or what amount of duty is payable and for "the purposes of inquiring into any other matter relevant to the enforcement of (the) Act", to require any person:

"(a) to furnish the Commissioner, either orally or in writing,

with such information as the Commissioner requires;

(b) to attend for examination before the Commissioner or any authorised officer; or

(c) to produce any instrument or records in the person's custody relevant to the subject matter of the inquiry".

15. Section 7 of the 1986 Act also inserted what are now numbered ss 27B, 27C and 27D. The Commissioner is empowered for the purpose of ascertaining whether the provisions of the statute are being or have been complied with or for any other purpose related to the enforcement of the Act, to enter premises and inspect and take copies of instruments or records that appear to be relevant to the assessment of duty (s 27B). Provision is made for the issue of search warrants (s 27C). The Commissioner is also empowered to retain possession, until the full amount of duty and any penalty has been paid, of any instrument which is chargeable with duty and which comes into the possession of the Commissioner (s 27D).

16. Sub-sections (1) and (2) of s 5 of the Act provide for the charging of stamp duties and their recovery as a debt. They state:

"(1) Subject to the exemptions contained in schedule 2 and the

other provisions of this Act, there shall be charged, for the use of the Crown, the several stamp duties specified in that schedule and elsewhere in this Act upon and for the several instruments therein set forth, and also such other duties as are specified in that schedule or in any other provision of this Act.

(2) The duty chargeable upon any such instrument shall be a debt

due to the Crown from every party who executes the instrument, and shall be recoverable in the name of the Commissioner on behalf of the Crown from any such party or parties in any court of competent jurisdiction."

There is authority dealing with comparable provisions in other stamp duties legislation to the effect that the liability to the Crown attaches to each party as that party executes the instrument in South Australia(37). Such an instrument may be stamped without penalty within two months after its execution. If the instrument was executed outside the State, it may be stamped without penalty within two months after its receipt in the State or within six months after its execution, whichever period first expires (s 20(1)). If an instrument is not produced to the Commissioner for stamping within the applicable period, any person who executed it, or on whose behalf it was registered, is guilty of an offence (s 20(4)).

17. Section 21 requires the attention of the presiding judicial officer to be called to any omission or insufficiency of the stamp on any instrument upon its production as evidence in any civil proceedings in South Australia. Further, s 22 states:

"No instrument chargeable with duty executed in any part of South

Australia, or relating, wherever it was executed, to any property situated, or to any matter or thing done or to be done, in any part of South Australia, shall, except in criminal proceedings, be pleaded or given in evidence, or admitted to be good, useful or available at law or in equity, unless duly stamped."

As will become apparent, to a significant degree this appeal turns upon the provisions of ss 23 and 24 which deal with the making of assessments of duty by the Commissioner, whether upon request or of the Commissioner's own motion. What, however, should be borne in mind from the outset, is that neither the liabilities imposed by ss 5 and 20 nor the disability imposed by s 22 depends upon the prior making of an assessment by the Commissioner.

18. The procedures and remedies for which the Act now provides are the product of a lengthy statutory evolution. Thus, provisions for the making of assessments by those charged with the administration of stamp duties legislation came later in England than the prohibition upon receipt of unstamped instruments in evidence. The history of the matter was described by Philp J in In re Sharpe(38), when dealing with Queensland legislation, as follows:

"Prior to the passing of the (Stamp Duties Act 1850 (UK)) 13 and

14 Vic c 97 s 14 the question of stamp or no stamp, and if a stamp what stamp, arose only upon the tendering in evidence of a document; and the only question before the judge was whether the document on its face evidenced a transaction of a type set out in the schedule to the Act; if it did and was not exempted the document was inadmissible unless properly stamped. The fact that the transaction or right asserted could be proved aliunde by oral evidence or by another document was of no moment: if the party desired to rely on the tendered document it must be properly stamped. ...

19. Under this system a party might be deprived of his action or defence through an honest mistake of stamp law (see eg Beckwith v Benner and Simpson(39)), and to assist in ameliorating this position the system of adjudication by the Commissioners was introduced by 13 and 14 Vic c 97 s 14, and is reproduced with some variation in s 22 of the (Stamp Acts 1894 to 1942 (Q)).

20. It should be remembered that the question of stampability could, and still can, fall for determination by a judge at a trial as well as by the Commissioner."

21. Further, not all stamp duty legislation has rendered the duty chargeable on instruments a Crown debt which is recoverable as such. For example, Cobar Corporation Ltd v Attorney-General for New South Wales(40) decided that the Stamp Duties Act 1898 (NSW) ("the 1898 Act") did not render duty a debt due to the Crown, and that the Crown could not proceed either at law or in equity to recover the duty as a debt. Rather, the Crown, in whose favour the statutory liability was created, was limited to reliance upon such specific means as were provided by the statute. In that connection, the High Court referred to well-known authorities such as Pasmore v Oswaldtwistle Urban Council(41). Griffith CJ observed(42):

"(S)tamp duties were first imposed in England in the reign of

William and Mary during the last decade of the seventeenth century. From that time to the present there is no instance of an action or suit for the recovery of stamp duty ever having been brought in any English Court, except in one instance where the action was founded upon an express provision in the Act declaring that the stamp duty should be a debt due to the Crown."

"Not only is there no direct provision in the Act creating a

liability to pay stamp duty as a debt, but it appears to me that to imply such liability would be to run counter to the whole scheme of the Act itself. The scheme, following that of English legislation on the subject, is not to impose a duty in respect of which a liability to pay is created, but to make it to the interest of every person who executes an instrument or is interested under an instrument that it should be stamped. The instrument, if not stamped, confers no rights and imposes no obligations which can be enforced in a Court of Justice. It cannot be registered. If the instrument is not stamped within a certain time, a fine of 20 per cent is imposed, and the person failing to stamp it, or the person who seeks to use it unstamped, is liable to pay the penalty. The scheme of the Act is to rely upon these inducements appealing to the self interest of persons executing or taking advantage of the instrument."

22. Where, as in South Australia, the legislation creates a Crown debt, there is authority which both asserts(44) and, at least where an assessment has followed a request by the taxpayer, denies(45) that the issue of liability may be tested in an action by the Crown to recover the duty.

23. The Stamp Duties Act 1920 (NSW), s 124G, provides that production of any assessment or copy thereof shall be conclusive evidence of the due making of the assessment and be conclusive evidence that the amount and all particulars of the assessment are correct. However, the section also provides that, in a proceeding under s 124 on "appeal" against the assessment, the assessment is prima facie evidence only. The South Australian legislation contains no such provision.

24. In Commissioner of State Taxation (WA) v Bayswater Hire Cars Pty Ltd(46), the Commissioner issued and served upon the taxpayer a notice of assessment for stamp duty in relation to the rental business of the taxpayer, the taxpayer did not lodge an objection to the assessment as provided in the Stamp Act 1921 (WA), and the Commissioner commenced an action to recover the duty. The taxpayer unsuccessfully sought to defend that action by challenging the assessment. The Western Australian legislation contained no counterpart to s 124G of the New South Wales statute. Nevertheless, the Full Court held that the merits of the assessment could not be challenged in an action for recovery of the duty and that the provisions dealing with objections and appeals exhaustively set out the available means for challenging an assessment made by the Commissioner.

25. On the present appeal, the Commissioner submits that this reasoning applies to the South Australian legislation and, moreover, that the "appeal" against assessment may be pursued only by an appellant requiring the Commissioner to state and sign a case for the Supreme Court and that the taxpayer cannot lead evidence before the Supreme Court of material not before the Commissioner when the assessment in question was made.

26. Reference now should be made to the provisions relied upon by the Commissioner to bring the Deed to duty.

"Subject to this Act, duty shall be chargeable in respect of an

instrument that is outside South Australia if the instrument relates (wherever it was executed) to property situated, or any matter or thing done or to be done, in South Australia."

28. Section 60 defines "conveyance" to include every assurance or instrument of any kind by which or by virtue of which or by the operation of which, whether upon registration or otherwise, any personal property is assured to or vested in any person. Item (aa) under the heading "CONVEYANCE or TRANSFER" in Sched 2 brings to duty certain transfers on sale of any "stock or marketable security".

29. On 5 June 1989, the Commissioner wrote in the same terms to Telegraph and Cruden, stating that duty had been assessed in respect of the Deed and continuing:

"Having completed my investigation in this matter, I have formed

the opinion that the instrument is chargeable with stamp duty pursuant to sections 5b and 60, and the Second Schedule of the Stamp Duties Act, 1923 (SA) under the heading "CONVEYANCE .... on sale", Item (aa). Pursuant to section 23 of the Act, I have assessed the duty with which the instrument is chargeable as $4,029,000.

The sum of $4,029,000 is now due and payable by (Telegraph and Cruden) in respect of the instrument pursuant to section 5(2) of the Act. The question of any apportionment of duty between the parties to the instrument is a matter for the parties to determine."

The relevant portions of s 23 are set out later in these reasons.

30. The case stated specifies that, in concluding that the Deed was chargeable to duty in South Australia, the Commissioner proceeded on the footing that there were no branch registers kept by News and, in particular, no entry in respect of the shares in any branch register situated outside South Australia; accordingly, the Deed related to shares which were property situated in that State, within the meaning of s 5B of the Act.

31. On paying the duty, Telegraph forwarded to the Treasurer a statement of grounds of objection to the assessment, but the Treasurer confirmed the assessment. These steps were taken pursuant to s 24 of the Act. The text of s 24 is set out later in these reasons.

32. Rule 97.04 of the Rules of the South Australian Supreme Court provided(47):

"(1) Where under any Act an appeal lies to the Supreme Court,

(a) the appeal shall be heard by a single Judge;

(b) the appeal shall be by way of rehearing ...

(2) Subrule (1) shall apply mutatis mutandis to a case stated to

the Supreme Court which is not required to be heard by the Full Court."

As will become apparent, the Commissioner had formulated his assessment by an ex parte procedure which involved nothing which would be described as a hearing in respect of which there then might be a "rehearing" as referred to in r 97.04. However, it has been said that there are different meanings to be attached to the word "rehearing"(48). In Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd(49), Mason J, with whose judgment Barwick CJ and Stephen J agreed, said:

"Where a right of appeal is given to a court from a decision of an

administrative authority, a provision that the appeal is to be by way of rehearing generally means that the court will undertake a hearing de novo, although there is no absolute rule to this effect. Despite some suggestion in argument to the contrary, I do not read Ex parte Australian Sporting Club Ltd; Re Dash(50) as enunciating such an absolute rule. There are, of course, sound reasons for thinking that in many cases an appeal to a court from an administrative authority will necessarily entail a hearing de novo and I exclude for present purposes the case of an appeal to a federal court exercising the judicial power of the Commonwealth under Ch III of the Commonwealth Constitution."

His Honour then continued, in a passage upon which the present respondents strongly rely as indicative of the nature of their appeal to the Supreme Court(51):

"The nature of the proceeding before the administrative authority

may be of such a character as to lead to the conclusion that it was not intended that the court was to be confined to the materials before the authority. There may be no provision for a hearing at first instance or for a record to be made of what takes place there. The authority may not be bound to apply the rules of evidence or the issues which arise may be non-justiciable. Again, the authority may not be required to furnish reasons for its decision. In all these cases there may be ground for saying that an appeal calls for an exercise of original jurisdiction or for a hearing de novo."

33. On 22 September 1989, Telegraph and Cruden filed in the Supreme Court of South Australia a document headed "NOTICE OF APPEAL" in which they were shown as appellants and the Commissioner as respondent. The notice of appeal recited that Telegraph and Cruden, being dissatisfied with a determination and assessment to stamp duty by the Commissioner, and Telegraph having paid the duty assessed, appealed to the Supreme Court against that determination and assessment and sought orders that the determination and assessment be set aside and that the duty paid be repaid to Telegraph. Six grounds of appeal were then set out and the following "PARTICULARS OF FACTS RELIED UPON" were appended:

"A The Instrument constituted a transfer from Cruden to

Telegraph of the shares in (News) which at the time of execution of the Instrument by Telegraph and Cruden were recorded on a branch register of (News) situated in the Northern Territory.

B Before registration of the Instrument, the Shares, whilst

still registered in the name of Cruden, were removed from the Northern Territory branch register of (News) and recorded in the branch register of (News) situated in the Australian Capital Territory.

C The Australian Capital Territory branch share register of

(News), at the request of Telegraph, registered the Instrument and recorded Telegraph as the holder of the Shares.

D The Shares have at all times since first being recorded on

the Australian Capital Territory branch register of (News) been and continue to be recorded on that branch register."

34. The notice of appeal concluded with claims to relief including a declaration that the Deed was not an instrument relating to property situated in South Australia or which related to any matter or thing to be done in South Australia, an order quashing or setting aside the assessment and an order for repayment to Telegraph of the duty together with interest.

35. After the notice of appeal had been filed, Telegraph and Cruden required the Commissioner to state and sign a case for the purposes of the appeal and pursuant to s 24(4) of the Act. The Crown Solicitor, acting for the Commissioner, prepared a draft case and there followed correspondence between the Crown Solicitor and the solicitors for Telegraph and Cruden. Further drafts were prepared by the Commissioner in the course of this exchange and suggestions as to the contents of the case were accepted or rejected by the Crown Solicitor. Eventually, on 2 July 1993, the Commissioner signed the case stated which was then filed with the Supreme Court.

36. The case stated does not include any reference to certain factual matters asserted by the respondents to be important for the purposes of determining their proceeding in the Supreme Court. The Commissioner refused to incorporate those matters in the case stated despite submissions made to him. The respondents contend that those matters would decisively support their grounds for appeal.

37. Telegraph and Cruden took out an application seeking orders from the Supreme Court, the first of which was that the parties be at liberty to file such affidavits upon which they sought to rely at the hearing of the appeal deposing to the factual circumstances of and surrounding the transfer by Cruden to Telegraph of the shares pursuant to the Deed. By order of a Master, the application was referred to the Full Court and the Full Court made an order in terms of the first order sought in the application.

38. The Commissioner submits that, upon its true construction, the Act provides for dissatisfied taxpayers to bring their complaint to the Supreme Court by a procedure described as a case stated, which does not admit of supplementation by further evidence.

39. We were referred to decisions upon the stamp duty legislation of Victoria(52), Queensland(53) and Western Australia(54) which indicate that the right of appeal given to the court against an assessment by the revenue authority may be exercised only through the medium of a case stated by that revenue authority. The Commissioner relied upon these decisions as indicative of the proper construction to be placed upon the central provisions (ss 23 and 24) of the South Australian legislation. However, that legislation contains its own features which prevent the result being dictated by earlier decisions upon the laws of other States. It may have been putting matters a little high(55) to say, as did Taunton J in Morley v Hall(56):

"The law upon the subject of stamps is altogether a matter

positivi juris. It involves nothing of principle or of reason, but depends altogether on the language of the legislature."

But it must be remembered that, whilst English legislation, beginning particularly with the Stamp Duties Act 1850 (UK), provided the guide for stamp duty legislation in the colonies and later the States, adjustments made and expedients adopted by the several legislatures over more than a century have made it unwise readily to translate reasoning as to the construction of one provision to that provision in legislation of another State.

40. As originally enacted, s 23(1) of the Act provided as follows:

"Subject to any regulations made under this Act, the Commissioner

may be required by any person to express his opinion with reference to any executed instrument upon the following questions -

I. Whether it is chargeable with any duty:

II. With what amount of duty it is chargeable."

This sub-section was struck out by s 5(a) of the 1986 Act and the following sub-sections were substituted:

" (1) The Commissioner may (whether requested to do so or not)

express an opinion on either or both of the following questions:

(a) whether duty is payable in a particular case;

(b) what amount of duty is payable in a particular case.

(1a) The Commissioner may require a person requesting an

opinion to furnish such information as the Commissioner thinks necessary for the purposes of the opinion and may refuse to give the opinion until that information has been furnished.

(1b) The Commissioner shall not express an opinion in respect

41. Section 7 of the 1986 Act also introduced provisions, including s 27A to which we have referred, empowering the Commissioner to obtain information. It is apparent that the introduction by s 5(a) of the 1986 Act into s 23(1) of an authority for the Commissioner to express an opinion as to whether duty is payable in a particular case and the amount thereof, the removal of the reference in the old s 23(1) to expression of an opinion "with reference to any executed instrument", and the inclusion of the broader expression as to whether duty "is payable in a particular case" and, if so, the amount thereof, reflect the changed situation. That is to say, the occasion for the expression of an opinion by the Commissioner might now be a request to do so or might arise on the Commissioner's own motion, as a result of inquiries made under the new provisions.

42. The remaining sub-sections of s 23 were not relevantly changed by the 1986 Act. They provide for the fixing of a particular stamp denoting that an instrument was not chargeable with duty, if that were the case, and for an assessment of duty which, in the opinion of the Commissioner, was chargeable. Section 23(4) provides that every instrument stamped appropriately shall be admissible in evidence.

"(1) Any person who is dissatisfied with the assessment of the

Commissioner may, on payment of duty in accordance therewith -

(a) within fourteen days after the date of the Commissioner's

assessment, forward to the Treasurer a statement of the grounds of his objection to the assessment; or

(b) within twenty-one days after the date of the Commissioner's

(2) The Treasurer may, on receipt of a statement of grounds of

objection, confirm or modify the Commissioner's assessment and, if the assessment is reduced, any excess duty paid by the objector will be refunded together with interest on the excess, from the date of payment of the duty, at the rate fixed under subsection (10).

(3) If upon the confirmation or modification by the Treasurer of

the Commissioner's assessment the person is still dissatisfied, he may, within twenty-one days after the Treasurer's decision is communicated to him, appeal to the Supreme Court.

(4) For the purpose of any appeal to the Supreme Court under this

section, the appellant may require the Commissioner to state and sign a case setting forth the question upon which his opinion was required and the assessment made by him.

(5) The Commissioner shall thereupon state and sign a case

accordingly and deliver it to the appellant and, upon his application, the case may be set down for hearing in the Supreme Court.

(6) Upon the hearing of such a case (at least seven days notice of

which shall be given to the Commissioner), the Court shall determine the question submitted and assess the duty, if any, chargeable under this Act.

(7) If the Court finds that the appellant has paid duty that is

not chargeable under this Act, or has paid duty in excess of the amount chargeable under this Act, the Court will order the Commissioner -

(a) to refund the amount that was not properly chargeable together

with interest on that amount, from the date of payment of the duty, at the rate fixed under subsection (10); and

(b) to pay the appellant's costs of the appeal.

(8) If the assessment of the Commissioner is confirmed by the

Court, the costs incurred by the Commissioner in relation to the appeal shall be ordered by the Court to be paid by the appellant to the Commissioner.

(9) For the purposes of this section, the Supreme Court may

(10) The Minister may, by notice in the Gazette -

(a) fix a rate of interest in respect of refunds of duty under

(b) vary a rate of interest previously fixed under this section.

(b) the imposition of additional or further duty under this Act."

44. Plainly, ss 23 and 24 are interrelated. Section 24 was not amended by the 1986 Act but as to subsequent events the provisions must be read together, "as one connected and combined statement of the will of Parliament"(57). It is no objection that the result may be to give s 24 an operation it may not have had were it not for the amendment to s 23.

45. The Acts Interpretation Act 1915 (SA) ("the Interpretation Act") does not contain a provision to the effect of s 15 of the Acts Interpretation Act 1901 (Cth) ("the Commonwealth Act"), namely, that every Act amending every other Act shall, unless the contrary intention appears, "be construed with such other Act and as part thereof". However, even without such an express provision, the better view is that under modern practice it is the intention of the legislature when effecting textual amendment of an Act to produce a revised text which thereafter and as to subsequent events is to be construed as a whole(58). Particularly will this be so where, as was the position with s 5(a) of the 1986 Act, the change involved amendment by striking out a sub-section (from s 23) and substituting other sub-sections. (Statutes dealing with matters of procedure already stand in a special position(59) and rights accrued under repealed legislation are protected by the common law and by s 16 of the Interpretation Act, which is in similar form to s 8 of the Commonwealth Act.)

46. The stated case procedure identified in s 24(4) is one which the dissatisfied party, called "the appellant", "may require" the Commissioner to follow, and the sub-section thus confers a power on an appellant. This implies (and we assume for the purpose of this appeal) that the power may be exercised or not at the discretion of the appellant: the Interpretation Act, s 34.

47. Further, the question to be set forth in the case is that upon which the opinion of the Commissioner "was required and the assessment made by him". That cannot refer to, and thus it is not within the power of the appellant to require a case to be stated in respect of, an assessment made upon the Commissioner's own motion rather than pursuant to a request for his opinion. This is critical for the present litigation because the consequence is that the case stated here was an irregularity and something for which, in the circumstances of an assessment made ex parte by the Commissioner, the Act did not provide.

48. Does this also mean that the "appeal" in a case such as the present is nugatory because an appeal may only be implemented by use of the stated case and s 24 does not confer the power on an appellant to require the Commissioner to state and sign a case? That would produce a result which, whilst not rendering the impost totally incontestable, would come near to achieving such a result. The Commissioner submits that, even without a provision such as s 124G of the New South Wales Act or s 177 of the Income Tax Assessment Act 1936 (Cth), the correctness of the assessment could not be challenged by Telegraph or Cruden in an action brought by the Crown to recover the duty. The issue of liability to duty might arise upon a trial of an action between Telegraph or Cruden and third parties or, indeed, between third parties, in which it was sought to tender the Deed. The Court might then properly decline to interrupt the trial so as to determine the stamp duty issue itself and accept an undertaking that the duty be paid with reservation to the parties liable to pay the duty of such rights as they might have under s 24 to challenge the assessment in an "appeal" under that section. But that would only bring the respondents back to their present situation.

49. However, these difficulties are ameliorated once it is perceived that the stated case procedure specified in s 24(4) does not exhaust the procedural content of the right of appeal to the Supreme Court conferred by s 24(3) upon a person still dissatisfied, in the terms of that sub-section, with the assessment of the Commissioner. If the appeal arises in respect of an assessment made by the Commissioner without any request for an expression of an opinion under s 23(1), any person dissatisfied with the assessment may, on payment of the duty, and if still dissatisfied after the treatment of the matter by the Treasurer, appeal to the Supreme Court. The Supreme Court, if it finds that the appellant had paid duty that is not chargeable under the Act, or has paid duty in excess of the amount chargeable under the Act, will order the Commissioner to refund the amount not properly chargeable, together with interest, and will order the Commissioner to pay the appellant's costs of the appeal (s 24(7)). If the assessment be confirmed, the appellant must bear the costs of the Commissioner (s 24(8)). The rate of interest is provided for by procedures described in s 24(10)).

50. It is true that, other than in the provisions dealing with the stating and signing of a case, no particular procedure is prescribed for the appeal by s 24. General provision was made by r 97.04 of the Rules of the South Australian Supreme Court, which we have set out earlier in these reasons. Furthermore, in our view, and consistently with the reliance properly placed upon Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd(60), appeal under s 24 in a case such as the present from an assessment made by the Commissioner on his own motion is an "appeal" which calls for an exercise of original jurisdiction. Any further lack of prescription of the procedural machinery is not fatal; it is for the Supreme Court to provide it in accordance with the demands of justice and common sense(61).

51. It follows that, in the present case, the appeal was properly instituted by the Notice of Appeal filed 22 September 1989. Further, the appellants properly pursued that appeal with their application dated 21 January 1993 that they be at liberty to file affidavits pertaining to the factual circumstances of and surrounding the transfer of shares by Cruden to Telegraph pursuant to the Deed. The case stated should be disregarded as an irregularity which, however, does not vitiate the further conduct of proceedings on a proper footing.

52. The result is that the appeal should be dismissed with costs.

53. It is unnecessary to determine on this occasion several issues which were the subject of submissions on the present appeal. The first is whether, where (unlike this case) the assessment in question has been made by the Commissioner after a request to express an opinion, pursuant to s 23, any appeal to the Supreme Court under s 24 may be pursued only through the medium of a stated case under s 24(4), setting forth the question upon which the opinion was required and the assessment made.

54. Secondly, although we decide this appeal adversely to the Commissioner, we do so by steps which do not deny the Commissioner's submission that the merits of an assessment, whether made upon request or of the Commissioner's own motion, may not be entered into by way of defence to an action by the Commissioner, pursuant to s 5(2), to recover the duty. However, we observe that it might be thought an odd result that, in the absence of a provision such as s 124G of the New South Wales legislation or s 177 of the Income Tax Assessment Act 1936 (Cth), the defendant in such an action is, on a proper construction of the Act, disabled from putting in issue liability for the debt sought to be recovered, at least where the debt was the product of an assessment which did not issue as a consequence of a request to the Commissioner to express an opinion as to the amount of duty payable in the particular case. Nevertheless, that question may be left for another day.

55. The third matter concerns the availability of mandamus against the Commissioner to compel performance of the requirement in s 24(4) that a case be stated and signed. The reasoning in the decision of the New South Wales Court of Appeal in Stocks and Parkes Investments Pty Ltd v The Minister (No 3)(62) suggests that it would not in all cases be sufficient for the Commissioner to decline to state a case in the form sought, or at all, because of deficiencies in a draft case, whether those deficiencies arise in the statement of facts or in the framing of the questions of law. But the mandamus could do no more than direct the Commissioner to perform his statutory duty(63), and the matter is one of judicial review rather than appeal from the decision of the Commissioner as to what facts were to be included in the case stated. Telegraph and Cruden did not dissent strongly from the Commissioner's submission that, if the facts in contention were not before the Commissioner when making the assessment, the Commissioner could not, as a matter of judicial review, be required to state as facts matters to which the Commissioner had not turned his mind.

56. Fourthly, we were referred to numerous authorities in jurisdictions where, as is the position in South Australia but not in New South Wales(64), there is no express provision empowering the court either to draw inferences from the facts and documents stated in the case or to direct inquiries in order to ascertain the necessary facts and, if it deems fit, to amend the case stated. Where such provisions are lacking, there is a formidable array of authority, which includes a number of revenue cases and commences in this Court with an oft-repeated statement by Isaacs J in Mack v Commissioner of Stamp Duties (NSW)(65). This was a decision upon the case stated provision in s 18 of the 1898 Act. Isaacs J declared that, on a "case stated", the facts stated are to be taken as the ultimate facts and the court is not at liberty to draw inferences unless that power is, by express words or by necessary implication, specially conferred by some enactment.

57. One of the decisions referred to by Isaacs J in Mack was that of the Exchequer Chamber in Tancred v Christy(66). However, on examination, his Honour's reliance upon it appears misplaced. Tancred v Christy, together with Allen v Sharp(67), illustrates the proposition that, in the common law courts, the case stated evolved as a remedy whereby the jury might give a general verdict for one party, subject to the opinion of the court in banc on a question of law involved, to be stated in a special case or in a point reserved; this was drawn up by or under the supervision of the judge(68).

58. In reading the old authorities as to the position at common law, it should be borne in mind that there was a distinction between inferences that might be drawn upon a special case and the situation where a jury had been allowed to bring in a special verdict, finding the facts in issue and leaving to the court the determination of the legal effect of those facts. In Tancred v Christy(69), the Court of Exchequer Chamber said:

"But the special verdict is entirely silent as to Tancred's

assenting to such occupation, and as to his being or not being at any time a partner in the company. We are of opinion that it is essential to the due determination of this case, that those facts should be found one way or the other. If there was no direct evidence in respect of them, still they are inferences of fact, which must be drawn one way or the other from the facts stated, and those inferences must be drawn by the jury, and cannot be drawn by a Court of error. It appears that the argument in the Court of Exchequer was upon a case reserved, and not on a special verdict, so that the Court below was at liberty to draw, and it appears, by the judgment reported, did draw, inferences of fact, the propriety of which we do not in the least question. But unfortunately we are not at liberty to do the same upon this special verdict, which is so imperfect that we cannot give any judgment upon it". (emphasis added)

The decision of the Court of Exchequer there referred to was given to earlier proceedings between the parties(70). Tancred v Christy is authority for, rather than against, the drawing of inferences of fact upon the common law case reserved.

59. In the course of the nineteenth century, the terms "case stated", "special case" and "case reserved" were used in a range of legislation to identify statutory rights of appeal from inferior courts and tribunals, and from revenue authorities. The incidents of such a procedure did not necessarily correspond to those of a case stated at common law(71). Each procedure took its character from the particular statute in question.

60. However, the decisions to which we have referred as applying the statement by Isaacs J in Mack illustrate that the present state of authority in Australia is that described by Jordan CJ in McCaughey v Stamp Duties Commissioner(72):

"A provision in a statute for the stating of a case for the

opinion of a court means, prima facie, stating facts for an opinion on a question of law; and where this is the position the court has no power to draw from the facts stated inferences of the existence of other facts; it can only answer the question of law on the facts as stated and on those facts only".

It is, in the event, unnecessary on this appeal to consider the interrelation between this prima facie construction and the need for a State law to employ unmistakable and unambiguous language to impose and collect an "incontestable tax".

61. Finally, nothing in the arguments on the present appeal has cast any doubt on the propositions that liability of an instrument to duty is not necessarily determined by its apparent tenor and that extrinsic evidence may properly bear upon the question of the real nature of the instrument(73). The dispute in the present case has been as to the existence of the necessary procedures to enable the Supreme Court, if need be, to look beyond what is disclosed on the face of the Deed to determine the dispute as to the amount of duty properly payable.

62. As we have indicated, we would dismiss the appeal with costs.

1 Telegraph Investment v Stamps Commissioner (1994) 62 SASR 259.

2 [1920] HCA 76; (1920) 28 CLR 373.

3 [1920] HCA 76; (1920) 28 CLR 373 at 381.

4 See McCaughey v Stamp Duties Commissioner (1945) 46 SR(NSW) 192 at 208.

6 Cuming Campbell Investments Pty Ltd v Collector of Imposts [1940] VicLawRp 27; (1940) VLR 153 at 159-160.

7 See Davidson v Chirnside [1908] HCA 65; (1908) 7 CLR 324 at 340 per Griffith CJ and at 347 per Higgins J.

8 [1954] HCA 8; (1954) 91 CLR 368 at 400.

9 [1954] HCA 8; (1954) 91 CLR 368 at 401.

10 See also Cuming Campbell Investments Pty Ltd v Collector of Imposts (Vict) [1938] HCA 53; (1938) 60 CLR 741 at 754 per Dixon J; KLDE Pty Ltd v Commissioner of Stamp Duties (Q) [1984] HCA 63; (1984) 155 CLR 288 at 304-305 per Brennan J.

16 [1920] HCA 76; (1920) 28 CLR 373.

17 Stamp Duties Act Amendment Act (No 2) 1986 (SA), s 5.

18 See Stamp Duties Act 1923 (SA), ss 27A, 27B and 27C.

19 See Sweeney v Fitzhardinge [1906] HCA 73; (1906) 4 CLR 716 at 735 per Isaacs J; Bennion, Statutory Interpretation, 2nd ed (1992) at 190-192; Pearce and Geddes, Statutory Interpretation in Australia, 3rd ed (1988) at 151; cf Attorney-General v Lamplough (1878) 3 Ex D 214.

21 See Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84 at 124-125.

22 [1976] HCA 62; (1976) 135 CLR 616 at 621.

23 See Pyx Granite Co Ltd v Ministry of Housing and Local Government (1960) AC 260 at 286; Davy v Spelthorne Borough Council [1983] UKHL 3; (1984) AC 262 at 274; Wandsworth London Borough Council v Winder [1984] UKHL 2; (1985) AC 461 at 510.

26 (1993) AC 70 at 172; cf at 161-162 per Lord Keith of Kinkel.

27 See the meaning given to the expression "incontestable" tax by Kitto J in Giris Pty Ltd v Federal Commissioner of Taxation [1969] HCA 5; (1969) 119 CLR 365 at 378-379, repeated by Gibbs CJ, Wilson, Deane and Dawson JJ in MacCormick v Federal Commissioner of Taxation [1984] HCA 20; (1984) 158 CLR 622 at 640-641. See also Deputy Federal Commissioner of Taxation v Brown [1958] HCA 2; (1958) 100 CLR 32 at 40-41, 52; Deputy Commissioner of Taxation v Hankin [1959] HCA 2; (1959) 100 CLR 566 at 576-577; Deputy Commissioner of Taxation v Richard Walter Pty Ltd [1995] HCA 23; (1995) 69 ALJR 223 at 252; [1995] HCA 23; 127 ALR 21 at 58.

28 1 Will and Mary, sess 2, c 2, given the short title by the Short Titles Act 1896 (UK). There is a dispute involving the old and new calendars as to whether the relevant year is 1688 or 1689. The better view is 1689: Birks, "Restitution From the Executive: A Tercentenary Footnote to the Bill of Rights" in Finn (ed), Essays on Restitution, (1990) 164 at 165.

30 The Commonwealth v Colonial Combing, Spinning and Weaving Co Ltd [1922] HCA 62; (1922) 31 CLR 421 at 433-434, 463 per Isaacs J. See also Cam and Sons Pty Ltd v Ramsay [1960] HCA 82; (1960) 104 CLR 247 at 258 per Dixon CJ, 272-273 per Windeyer J.

31 Delohery v Permanent Trustee Co of NSW [1904] HCA 10; (1904) 1 CLR 283 at 297.

32 Castles, An Australian Legal History, (1982) at 402. See also Law Reform Commission of Western Australia, Report on United Kingdom Statutes In Force in Western Australia, October 1994, para 1.2.

33 See Ex parte Wallace and Co (1892) 13 NSWLR(L) 1; Bowles v Bank of England (1913) 1 Ch 57 at 81-82, 84-85; Castles and Reid, "Taxation by Parliamentary Resolution - A Case for an Australian Provisional Collection of Taxes Act", (1961) 35 Australian Law Journal 74 at 75-76, 78-79. There had been, as early as 1819, a strong view in the Colonial Office that, in a colony with no representative assembly of its own, taxes might only be imposed by authority of the Imperial Parliament and that the prerogative did not extend to imposition of colonial taxes: Opinion of the Law Officers of 15 February 1819, reprinted in O'Connell and Riordan, Opinions on Imperial Constitutional Law, (1971) at 4-5.

34 MacCormick v Federal Commissioner of Taxation [1984] HCA 20; (1984) 158 CLR 622 at 640-641, 645-646, 658.

35 cf Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 at 435-438.

36 The 1986 Act inserted s 27a. In the reprinted Act as at 2 March 1995 this had become s 27A. Similar transposition from lower to upper case also occurred in other sections. The changes were presumably a result of a direction by the Attorney-General to the Commissioner of Statute Revision under s 7(2) of the Acts Republication Act 1967 (SA).

37 O'Sullivan v Commissioner of Stamp Duties (1984) 1 Qd R 212 at 220.

39 (1834) 6 C and P 681 [1834] EngR 1127; (172 ER 1417). An example of a ruling by the Court favourable to the taxpayer is Morley v Hall (1834) 2 Dowling's Practice Cases 494.

40 [1909] HCA 52; (1909) 9 CLR 378.

42 [1909] HCA 52; (1909) 9 CLR 378 at 386-387.

43 [1909] HCA 52; (1909) 9 CLR 378 at 393.

45 O'Sullivan v Commissioner of Stamp Duties (1984) 1 Qd R 212 at 215-216.

47 Rule 97 was deleted and a new rule inserted by the Supreme Court Rules Amendment No 47, with effect on 1 March 1995.

48 Powell and Wife v Streatham Manor Nursing Home (1935) AC 243 at 249.

49 [1976] HCA 62; (1976) 135 CLR 616 at 621.

51 [1976] HCA 62; (1976) 135 CLR 616 at 621.

52 Cuming Campbell Investments Pty Ltd v Collector of Imposts [1940] VicLawRp 27; (1940) VLR 153.

53 O'Sullivan v Commissioner of Stamp Duties (1984) 1 Qd R 212.

54 Commissioner of State Taxation (WA) v Bayswater Hire Cars Pty Ltd (1989) 20 ATR 1606.

55 See, for example, as to the equity of contribution between taxpayers on whom the one burden is imposed by the legislature, Armstrong v Commissioner of Stamp Duties (1967) 2 NSWR 63.

57 cf Sweeney v Fitzhardinge [1906] HCA 73; (1906) 4 CLR 716 at 735 per Isaacs J.

58 Bennion, Statutory Interpretation, 2nd ed (1992) at 190-192; Sutherland Statutory Construction, 4th ed (1985 rev), vol 1A, para para 22.34, 22.35. See also Blair v Chicago [1906] USSC 64; (1906) 201 US 400 at 475; Pennsylvania Co v United States [1915] USSC 55; (1915) 236 US 351 at 362; United States v La Franca [1931] USSC 51; (1931) 282 US 568 at 576; cf IRC v Joiner (1975) 1 WLR 1701 at 1710-1711; (1975) 3 All ER 1050 at 1059; Farrell v Alexander [1976] UKHL 5; (1977) AC 59 at 72-73.

59 Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 at 266-267, 280-281, 285-287.

60 [1976] HCA 62; (1976) 135 CLR 616 at 621.

61 Browne v Commissioner for Railways (1935) 36 SR(NSW) 21 at 28-29 per Jordan CJ. See also Moate v Dartnell (1947) 65 WN(NSW) 9 at 10.

63 Cuming Campbell Investments Pty Ltd v Collector of Imposts (Vict) [1938] HCA 53; (1938) 60 CLR 741 at 750.

64 Part 32 r 8 of the Supreme Court Rules made under the Supreme Court Act 1970 (NSW) applies to a stated case under s 124 of the Stamp Duties Act 1920 (NSW). It provides that the Supreme Court may "receive evidence, make findings of fact, and add to or alter the stated case in accordance with the findings of fact of that Court". The Court also may draw inferences from the facts and documents stated in a stated case (Pt 32 r 6). See also McCaughey v Stamp Duties Commissioner (1945) 46 SR(NSW) 192 at 208.

65 [1920] HCA 76; (1920) 28 CLR 373 at 381; see also at 384 per Rich J; Francis v Commissioner of Stamp Duties (NSW) [1954] HCA 8; (1954) 91 CLR 368 at 400-401; R v Rigby [1956] HCA 38; (1956) 100 CLR 146 at 150-152; Brisbane City Council v Valuer-General (Q) [1978] HCA 40; (1978) 140 CLR 41 at 51-52, 58; KLDE Pty Ltd v Commissioner of Stamp Duties (Q) [1984] HCA 63; (1984) 155 CLR 288 at 304-305.

66 (1843) 12 M and W 316 [1843] EngR 1183; (152 ER 1219).

67 [1848] EngR 506; (1848) 2 Ex 352 (154 ER 529), referred to in O'Sullivan v Commissioner of Stamp Duties (1984) 1 Qd R 212 at 217-218.

68 The matter is discussed further in the article by Professor Scott, "Trial by Jury and the Reform of Civil Procedure", (1918) 31 Harvard Law Review 669 at 685-686.

69 (1843) 12 M and W 316 at 323-324 [1843] EngR 1183; (152 ER 1219 at 1222-1223).

70 Christy v Tancred (1842) 9 M and W 438 [1842] EngR 181; (152 ER 185).

71 Gordon QC, "Cases Stated under Common Law", (1973) 89 Law Quarterly Review 545.

72 (1945) 46 SR(NSW) 192 at 208; cf McFarlane v Commissioner of Stamp Duties (1965) 66 SR(NSW) 166 at 178-179 per Sugerman J.

73 Commissioner of Stamp Duties (Q) v Hopkins [1945] HCA 14; (1945) 71 CLR 351 at 360, 378; Commissioner of Stamp Duties (NSW) v H Small and Co Pty Ltd [1950] HCA 10; (1950) 80 CLR 177 at 184; DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties (NSW) [1982] HCA 14; (1982) 149 CLR 431 at 455-456.