Commissioner of State Revenue v Politis [2004] VSC 126

Supreme Court of Victoria|2004-04-20|Before: NETTLE J

For the reasons given I consider that the Tribunal erred in its construction of s. 31 of the Duties Act and consequently in its conclusion that s. 31 did not apply to the facts of this case.

Subject therefore to anything counsel may wish to say, the orders I propose are that there be leave to appeal and that the appeal be allowed; that the Tribunal's decision be set aside; and in lieu thereof that it be ordered that the assessment the subject of the appeal be affirmed.

at pp. 351 and 356; ; at p.344; at pp.84-5 and 88 ; (1969) 120 CLR 365 at pp.388-9; , 17th Ed at [1488]; , 8th Aust Ed. at [8.46]

[4] See and compare Western Australia v Ward [2002] HCA 28; (2002) 76 ALJR 1098 at 1105 [2], 1108-1109 [16], 1110 [25], 1216 [588]; Boral Besser Masonry Ltd (now Boral Masonry Ltd) v Australian Competition and Consumer Commission [2003] HCA 10; (2003) 77 ALJR 623 [337]

[5] Hansard, 10 November 1994 (Assembly) at p.1688

[6] Tonelli v Kommirra Pty Ltd [1972] VicRp 87; [1972] VR 737 at p.739; _Harry v Fidelity Nominees Pty Lt_d (1985) 41 SASR 458; Salter v Gilbertson [2003] VSCA 1 at [17]

[7] Chang v Registrar of Titles [1976] HCA 1; (1976) 137 CLR 177 at pp.181, 184 and 190; cf Chan v Cresdon [1989] HCA 63; (1989) 168 CLR 242 at pp.252-3

[8] Coulls v Bagots Executor Trustee Co [1967] HCA 3; (1967) 119 CLR 460 at pp.477 - 479; Gadsden v Commissioner of Probate Duties [1978] VicRp 60; [1978] VR 653 at pp. 657-8; cf. Beswick v Beswick [1966] 1 Ch 538 at p.553;

[9] Parland Pty Ltd v Mariposa Pty Ltd [1995] TASSC 91; (1995) 5 Tas R 121; Salter v Gilbertson, supra at [18] and [19]

[10] Smith v Federal Commissioner of Taxation [1987] HCA 48; (1987) 164 CLR 513; Hayes v Federal Commissioner of Taxation [1956] HCA 21; (1956) 96 CLR 47; Federal Commissioner of Taxation v Dixon [1952] HCA 65; (1952) 86 CLR 540; Catterwell v Wright (1991) 56 SASR 581

[11] See, for example, Wilcox v Clarke & Co (No2) (1896) 21 VLR 752; R v Commonwealth Court of Conciliation and Arbitration; Ex parte Federated Gas Employees' Industrial Union [1951] HCA 2; (1951) 82 CLR 267; Ryan v Triguboff [1976] 1 NSWLR 588; Day v Rugala (1978) 33 FLR 208; Melville v Mutual Life & Citizens Assurance Co Ltd [1980] FCA 114; (1980) 47 FLR 201; Australian Alliance Insurance Co Ltd v Australian Pensioner Advisory Service Pty Ltd & Blake, Unrep, 28 June 1994, Ashley J

[12] [1990] FCA 23; (1990) 22 FCR 305 at p. 316; see also R v Manasseh [2002] NSWCCA 27 at[34] and [57].

[13] [1993] FCA 496; (1993) 45 FCR 366 at p. 376, after rejecting the analysis of Lockhart J in Australian Iron & Steel, and expressing a preference for views previously expressed Davies J in Australia Meat Holdings Pty Ltd v Trade Practices Commission.

[14] Olsson v Dyson (1969) 120 CLR 365 at p.388-9, per Windeyer J

"28. The meaning of the words `directly or indirectly' in sub-s. 50(1) was the subject of much argument before me. I find it a little curious that the words appear in the sub-section at all because I doubt if they add anything to what would otherwise be the construction of the sub-section. They do not appear in other sections in which one might expect to find them: for examples, ss. 47, 48, and 49 relating respectively to exclusive dealing, resale price maintenance and price discrimination. ... 29. The language of s. 50 itself throws little light upon what constitutes a direct or indirect acquisition. Sub-sections (2A) and (2B) are irrelevant to this question for they simply deem certain corporations or bodies corporate to be associated with one another for the purpose only of widening the scope of corporate relationships on the question of dominance in the relevant market for goods and services. 30. The words `directly or indirectly' in sub-s. 50(1) plainly control the immediately preceding word `acquire'. They relate to the method of acquisition, not its subject matter. They do not qualify the nature or character of the shares or assets the acquisition of which is prohibited. This follows not only from the syntax of sub-s. 50(1) but from its evident purpose. 31. What is a `direct' as opposed to an `indirect' acquisition? A `direct' acquisition is one by the corporation itself. An `indirect' acquisition is an acquisition by someone on behalf of the corporation acting as agent, trustee or nominee: see S.A. Brewing Holdings Limited per von Doussa J. at 50,275; and cf. Milk Board v Echo Dairies Pty. Limited (1963) NSWR 1653 per Jacobs J. at 1665; Trade Practices Commission v Legion Cabs (Trading) Co-Operative Society Limited [1978] FCA 47; (1978) ATPR 40-092 per Franki J. at 17,905; Melville v Mutual Life & Citizens Assurance Co. Limited [1980] FCA 114; (1980) 31 ALR 649 per Lockhart J. at 655."

"23. With respect to the construction of s. 50, account must also be taken of the established general rule, to which Gibbs J referred in Beckwith v. The Queen [1976] HCA 55; (1976) 135 CLR 569 at 574, that `a court will adopt that construction of a statute which will give some effect to all of the words which it contains'. As was acknowledged in Australian Iron & Steel, a narrow meaning of the words `directly or indirectly', as they are used in s. 50, leaves them entirely without effect. For the word `acquire', as it must be construed by virtue of s. 4(4), in itself comprehends everything which Lockhart J suggests should be conceded to `indirectly'.

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