Commissioner of State Revenue v The Muir Elecctrical Co Pty Ltd & Ors [2003] VSCA 112

Court of Appeal (Vic)|2003-08-21|Before: ORMISTON, CALLAWAY and EAMES, JJ.A.

Revenue law - Payroll tax - Company providing accounting and other services to retailers - Whether company and retailers a "group" - Statutory interpretation - Whether singular includes plural - Payroll Tax Act 1971, s.9A - Interpretation of Legislation Act 1984, s.37(c).

Having had the benefit of reading the judgment which Callaway, J.A. is about to deliver, I agree with the manner in which he proposes to deal with both the appeal and the cross-appeal, including the application for leave to cross-appeal, and with his reasons[1] for making the proposed orders. Section 37(c) of the Interpretation of Legislation Act 1984 may well apply in most cases, but this seems a case where Parliament has chosen its language carefully. It is one matter for an employee, in form employed by one employer, to be "solely or mainly" employed to perform duties for another employer or "business". The one could be seen to be merely a front for the other. It is quite a different matter where there are a series of businesses at which another's employee spends in total more time than he does with his or her stated employer. In those circumstances it cannot be predicated that the employee will spend more time with any of the other businesses than he or she would with the stated employer; indeed it is more likely than not that the time spent with one or more of the other businesses will be less. If one makes the assumption, as one must for this purpose, that the employer and the "associates" do not otherwise constitute a group for the purposes of the Payroll Tax Act 1971, then one could postulate a wide variety of circumstances in which an employee could be hired or lent out to other businesses for purely commercial reasons which would take up the majority of the employee's time, without there being any inference drawn that the various employing businesses form part of a group. But where there is but one other business and the whole or a majority of the time spent by the employee is at that other business, Parliament may well have seen that an inference should be drawn the other way so that both should form part of a group, unless the provisions of sub-s.(1J) of s.9A can be called in aid. If Parliament has, in the amendments passed this year, taken a different approach to grouping in these circumstances, then the section will have to be looked at in the light of those amended provisions in the future, but it should not affect the reasoning expressed by Callaway, J.A. which I

It is disadvantageous to an employer to be grouped with one or more other employers for the purposes of the Pay-roll Tax Act 1971. All but one of the members of the group lose the benefit of s.9B(3) of the Act, the effect of which is to establish a minimum below which the wages paid by an employer are not taxable and so to remove from small businesses, and to alleviate for larger businesses, the obligation to pay the tax. In addition, the members of a group are jointly and severally liable to pay the tax payable by members of the group.[2] The question whether employers constitute a group is to be determined by the provisions of s.9A.

The appellant, to whom I shall refer as "the Commissioner", formed the view that the first respondent ("Muirs") and the second to fifteenth respondents ("the retailers") constituted a group. (There are four other respondents, but it appears to be common ground that their fortunes stand or fall with those of the first 15 respondents. [3]) He relied, among other provisions, on s.9A(1A)(d) and s.9A(2). Assessments were issued for the period 1st November 1993 to 30th June 1996. The respondents objected to the assessments and their objections were disallowed. On review under s.106 of the Taxation Administration Act 1997, the Victorian Civil and Administrative Tribunal affirmed the assessments, except that it reduced the penalty that the Commissioner had imposed to 10%. An appeal to the Trial Division pursuant to s.148 of the Victorian Civil and Administrative Tribunal Act 1998 was unsuccessful except in immaterial respects, but a further appeal to this Court succeeded.

On 12th June 2001 the Court of Appeal set aside the relevant parts of the order made in the Trial Division and made a declaration and orders in lieu. The declaration was to the effect that no two or more of the present respondents constituted a group within the meaning of s.9A(1A)(d). The orders, among other things, set aside the decision of the Tribunal and remitted the matter to the Tribunal for further hearing because of the other provisions on which the Commissioner had relied when he issued the assessments.[4] On remitter, the Tribunal determined that the respondents constituted a group by reason of s.9A(1A)(c) and s.9A(2) and that they could not be degrouped pursuant to s.9A(1J). It adhered to its views on penalty, so that the practical result was the same as that of the first decision of the Tribunal.

The respondents again sought to appeal to the Trial Division pursuant to s.148 of the Victorian Civil and Administrative Tribunal Act. On 17th June 2002 Mandie, J. made orders which may be summarized as follows. The respondents were granted leave to appeal in relation to two questions of law, each of which related to s.9A(1A)(c). The appeal was allowed and the second decision of the Tribunal was set aside. So too were all the assessments, except those against seven of the respondents, namely Muirs, Heaslip Muir Holdings Pty. Ltd., Mordialloc Electrical Warehouse (Vic.) Pty. Ltd., Burgess Thompson Muir's Pty. Ltd., Finch Muir's Pty. Ltd., Clarke Muir's Pty. Ltd and McLean Muir's Pty. Ltd. The matter of the assessments against those seven respondents was remitted to the Tribunal for the assessments to be adjusted so far as necessary in accordance with his Honour's reasons and for further hearing. There was also an order relating to costs.

On 23rd August 2002 the Court of Appeal granted the Commissioner leave to appeal from the orders made by Mandie, J. other than the order granting leave to appeal on the two questions of law relating to s.9A(1A)(c). The respondents, without leave, served and filed a notice of cross-appeal. They also gave a notice of contention, which they incorporated in their notice of cross-appeal. Both the notice of cross-appeal and the notice of contention raised issues going well beyond the two questions of law relating to s.9A(1A)(c) and the issues raised by the Commissioner's appeal. The material in the appeal book was insufficient for us to determine all the issues raised.

Accordingly, at the outset of the hearing, it was decided to confine argument to four questions. The first two, set out at [10] and [19] below, reflect the two questions of law relating to s.9A(1A)(c) on which Mandie, J. had granted the respondents leave to appeal to the Trial Division. The third question is whether the respondents need leave to cross-appeal to this Court. The fourth question is whether, if so, such leave should be granted.

The relationship between Muirs and the retailers and the other facts giving rise to these proceedings appear from the earlier decision of this Court[5]

and the reasons of Mandie, J.[6] Additional material may be found in the first decision of the Tribunal.[7] None of the four questions referred to in [7] above turns on those facts. The first is a question of construction. The second does not arise. The third is a question of law. The fourth turns on a proper understanding of the second decision of the Tribunal and the reasons why Mandie, J. remitted part of the matter to it.

During the period to which the assessments related, the relevant provisions of s.9A read:

"(1) A reference in section 9 or 9B to taxable wages does not include a reference to any wages paid or payable by an employer if the employer and another person or other persons together constitute a group, unless the employer is excluded from the group under sub-section (1J). (1A) For the purposes of this Act, if-- (a) an employer that is a body corporate and another body corporate (in this section called a 'related person') are, by reason of section 50 of the Corporations Act related to each other; or (b) an employee of an employer performs, or two or more employees of an employer perform, duties for or in connection with a business carried on by the employer and another person (in this section called an 'associate'), whether or not with another person or persons; or (c) an employee of an employer is, or two or more employees of an employer are, employed solely or mainly to perform duties for or in connection with a business carried on by another person or other persons (which other person is, or other persons are, in this section, called an 'associate'); or (d) an employer has, in respect of the employment of, or the performance of duties by, one or more employees, an agreement, arrangement or undertaking, whether formal or informal and whether expressed or implied, with another person or other persons (which other person is, or other persons are, in this section, called an 'associate') relating to a business carried on by the associate or by the associate and another person or persons-- the employer and all persons who are related persons or associates in relation to that employer together constitute a group and each is a member of that group. (1B) If the same person has, or the same persons have together, a controlling interest under sub-section (1C) in each of two businesses, the persons who carry on those businesses constitute a group and each is a member of the group. (1C) For the purposes of sub-section (1B), the same person has, or the same persons have together, a controlling interest in each of two businesses if that person has, or those persons have together, a controlling interest under any of the following paragraphs in one of the businesses and a controlling interest under the same or another of the following paragraphs in the other business--

...

(e) a person has, or persons have together, a controlling interest in a business, being a business carried on under a trust, if that person (whether or not as the trustee of, or beneficiary under, another trust) is the beneficiary, or those persons (whether or not as the trustees of, or beneficiaries under, another trust) are together the beneficiaries, in respect of 50 per centum or more of the value of the interests in the trust first-mentioned in this paragraph;

...

(1E) A person who, as the result of the exercise of a power or discretion by the trustee of a discretionary trust or by any other person or by that trustee and other person, may benefit under that trust is deemed, for the purposes of this Act, to be a beneficiary in respect of 50 per centum or more of the value of the interests in that trust.

...

(1H) If-- (a) a person is a beneficiary under a trust; or (b) two or more persons together are beneficiaries under a trust-- in respect of 50 per centum or more of the value of the interests in that trust and the trustee or trustees of that trust has or have under sub-section (1C) a controlling interest in a business, that beneficiary or those beneficiaries are deemed, for the purposes of sub-section (1C) to have a controlling interest in that business. (1I) For the purposes of this Act, if a person is an employer who is a member of a group, a reference to an employer does not have effect in relation to that person otherwise than as a member of that group. (1J) If the Commissioner is satisfied, having regard to the nature and degree of ownership and control of the businesses, the nature of the businesses and any other matters the Commissioner considers relevant, that a business carried on by a member of a group, including a group constituted by reason of section 9A(2), is carried on independently of, and is not connected with the carrying on of, a business carried on by any other member of that group, the Commissioner may exclude the member from that group.

...

(2) If a person is a member of two or more groups (whether or not by reason of this sub-section), all the members of those groups constitute one group for the purposes of this Act." [8]

Section 37(c) of the Interpretation of Legislation Act 1984 provides that in an Act or subordinate instrument, unless the contrary intention appears, words in the singular include the plural. The first question referred to in [7] above is whether the word "business" in s.9A(1A)(c) includes "businesses". It is common ground that, if it does, the respondents constituted a group by reason of that paragraph and that, if it does not, they did not constitute a group by reason of that paragraph. In the former case, attention would need to be given to s.9A(1J) and, in the latter case, attention would need to be given to other provisions of s.9A under which the Commissioner contends that the respondents constituted a group.

The Tribunal rejected the respondents' argument. It said that, on ordinary principles, a reference to the singular includes a reference to the plural unless the context suggests the contrary and that it would be "curious in the extreme" if the reference to "a business" in paragraph (c) were confined to a reference to one business only and did not extend to "the businesses of a group of people". There was nothing in the context, the Tribunal considered, to suggest that that interpretation should be adopted.

Mandie, J. took a different view. His Honour said:

"[27] If the words 'a business' include the plural, s.9A(1A)(c) might be seen as constituting three categories of groups as follows: (1) the employer of an employee (or employees) who is (or are) employed solely or mainly to perform duties for or in connection with a business carried on by another person or a number of other persons, and that other person or those other persons; (2) the employer of an employee (or employees) who is (or are) employed solely or mainly to perform duties for or in connection with a number of businesses carried on by the same other person or persons, and that other person or those other persons; (3) the employer of an employee (or employees) who is (or are) employed solely or mainly to perform duties for or in connection with a number of businesses carried on by a number of different other persons, and those other persons. [28] It can be seen that the focus in category (1) is directed to the performance of duties solely or mainly for a particular business carried on by a person or persons other than the employer. Once the particular business is identified, one must examine the duties (or tasks) performed by the employee and assess whether they are performed 'solely or mainly' for that particular business. In the case of category (2) the focus shifts. The various businesses, all carried on by the same person or persons, must be identified. I note that these businesses need not be the same: each of them may be in a different industry, trade or profession. One must then examine the duties (or tasks) performed by the employee, not to assess whether they are performed solely or mainly for any one of those businesses, but to assess whether they are performed solely or mainly for those businesses looked at together. I note that, just as each business may be different, the duties or tasks performed by the employee for or in connection with each of them may be quite disparate both as to nature and duration. The only 'unifying factor' is that the businesses are carried on by the same person or persons. In the case of category (3), the same considerations mentioned in relation to category (2) are applicable but the 'unifying factor' is no longer present. Each business may not only be different, and the duties and tasks performed for or in connection with it different, but the persons carrying on each business are different persons. Of course in a given case, the facts might throw up a mixture of categories (2) and (3).

...

[32] Returning to the 'singular includes plural' argument, I have concluded, not without hesitation, that the legislation evinces a contrary intention, that is, an intention to exclude the plural in relation to the words 'a business'. There is considerable force in the plaintiffs' argument based upon the many express uses of the plural in s.9A. In distinct contrast, the words 'a business' are used in each of paragraphs (b) (c) and (d) of s.9A(1A), and not the words 'a business or businesses'. In the case of paragraph (b), there will be a separate question in relation to any and each business carried on by the employer and another person, whether the employees of the employer perform duties for that business. No plural inclusion is appropriate or necessary. In the case of paragraph (d), there will be a separate question in relation to any and each business carried on by other persons, whether the employer has an agreement, arrangement or undertaking with those other persons (or those persons and others) in respect of the employment of, or the performance of duties by, employees of the employer. Again no plural inclusion is appropriate or necessary. In the case of paragraph (c), there will be a separate question in relation to any and each business carried on by another person or other persons, whether the employee or employees are employed solely or mainly to perform duties for or in connection with that business. No plural inclusion is necessary and in my view none is appropriate for paragraph (c) to have efficacy. Moreover, the extension of paragraph (c) by the inclusion of the plural (as I have mentioned in para [28] above) has the effect of expanding the scope of paragraph (c) in ways in which I think the tenor and context of the legislation shows were not intended. Indeed, the test contemplated by paragraph (c), namely whether an employee is employed 'solely or mainly' to perform duties for 'a' business tends, depending on the facts, to become a quite different test if the question is whether the employee is employed 'solely or mainly' to perform duties for a number of businesses looked at together. [33] In summary, each of paragraphs (b), (c) and (d) is capable of applying to any number of businesses but the criteria in each paragraph have to be met separately by each individual business, as 'a business'. The inclusion of the plural is thus inapposite. In that regard, I note also that, if a number of businesses separately satisfy the relevant criteria, then 'the employer and all persons who are related persons or associates in relation to that employer together constitute a group and each is a member of that group." (Emphasis in the original; footnotes omitted.)

Mr Berglund submitted, correctly, that the starting point is that the singular does include the plural unless the contrary intention appears. As the Privy Council said in Blue Metal Industries Ltd. v. Dilley[9]:

"By s. 21 of the Interpretation Act, 1897 (N.S.W.) it is enacted that in all Acts, unless the contrary intention appears, words in the singular shall include the plural and words in the plural shall include the singular. Such a provision is of manifest advantage. It assists the legislature to avoid cumbersome and over-elaborate wording. Prima facie it can be assumed that in the processes which lead to an enactment both draughtsman and legislators have such a provision in mind. It follows that the mere fact that the reading of words in a section suggests an emphasis on singularity as opposed to plurality is not enough to exclude plurality. Words in the singular will include the plural unless the contrary intention appears. But in considering whether a contrary intention appears there need be no confinement of attention to any one particular section of an Act. It must be appropriate to consider the section in its setting in the legislation and furthermore to consider the substance and tenor of the legislation as a whole."[10]

In the present case there are two indications to the contrary. The first is that Parliamentary counsel did not rely on s.37(c) of the Interpretation of Legislation Act very much or at all in drafting the relevant provisions of s.9A. They are replete with expressions such as "an employee ... or two or more employees", "another person or other persons", "a director or directors"[11] and "the trustee or trustees". The expression "a business" in paragraph (c) stands in contrast with both the opening words ("an employee of an employer is, or two or more employees of an employer are") and the immediately succeeding reference to "another person or other persons". Moreover, the word "employer" in paragraph (c), and elsewhere in sub-s.(1A), was deliberately left in the singular.[12] The apparently careful choice between the use of both the singular and the plural for some expressions and the use of the singular only for other expressions suggests a contrary intention of the kind referred to in s.37(c). There is more than the mere fact that the reading of words suggests an emphasis on singularity as opposed to plurality.

The main issue in Blue Metal Industries Ltd. v. Dilley was whether the provisions of s.185 of the Companies Act 1961-1964 (N.S.W.), which enabled the compulsory acquisition of shares following a successful takeover offer, applied in relation to a takeover offer made by two companies jointly or only to such an offer when made by one company. It was held that the singular did not include the plural. Their Lordships said[13]:

"It would seem unlikely that the legislature would solely depend upon the provisions of the Interpretation Act if there was an intention to legislate with such important consequences as to give powers of compulsory acquisition not to a single acquiring company but to a group of companies. The Interpretation Act is a drafting convenience. It is not to be expected that it would be used so as to change the character of legislation. Acquisition of shares by two or more companies is not merely the plural of acquisition by one. It is quite a different kind of acquisition with different consequences. It would presuppose a different legislative policy."

In a similar way, considerations of the kind to which Mandie, J. adverted make it unlikely that the legislature would have depended solely upon the Interpretation of Legislation Act to extend the operation of paragraph (c) so greatly as to make it, in effect, a different kind of provision. It is not enough that, unless the singular includes the plural, some tax avoidance schemes may slip through the net, for, so extended, paragraph (c) would undoubtedly catch a large number of everyday business and professional arrangements, leaving the taxpayer's relief solely to the discretion of the Commissioner under sub-s.(1J).[14] Mr Berglund argued that, in contrast with its predecessor[15], that sub-section afforded substantial protection, but, in my opinion, the considerations which influenced this Court on the earlier occasion are equally applicable.[16] I say nothing as to the position under the legislation as it has recently been amended[17]

, except that sub-s.(1J) will hereafter have to be construed in the context afforded by the new provisions.[18]

Mr Berglund also advanced an argument based on the legislative history of paragraph (c). The argument may be summarized as follows. The predecessor of paragraph (d), s.9A(1)(c)(ii) as originally inserted by s.2 of the Pay-roll Tax Act 1974, referred to "a trade, business or profession" in the singular, but, it was said, the explanatory memorandum showed that those words were intended to cover a case where "one part of what is really the one organization is carried on by [one company or person] and the other part or parts is carried on by others". The example was given of a motor car business in which one person or company ran the new car section, another the used car section and another the repairs section. Accordingly, so the argument proceeded, the singular had included the plural in the predecessor of paragraph (d) and there was no reason why it should not have included the plural in the predecessor of paragraph (c). That predecessor was s.9A(1)(c)(i) as originally enacted in 1974. Like the present paragraph (c), it said "an employé of the employer is, or two or more employés of the employer are" and referred to "another person or other persons" but to "a trade, business or profession" in the singular.[19] In 1974 s.17 of the Acts Interpretation Act 1958 provided that the singular included the plural unless the contrary was "expressly provided".[20] The argument concluded that Parliament would not have intended to narrow the scope of the legislation when the present paragraph (c) replaced its predecessor in 1987.[21]

The answer to this argument, careful and ingenious as it is, is that the plain meaning of the present paragraph (c) is that it applies only in relation to a business in the singular. It is not just a matter of impression. The factors referred to above leave the matter in little doubt. In such a case the law is to be found in the statute and not in extrinsic material.[22] Were it otherwise, the costs of complying with the law and of its enforcement would become prohibitive. In any event the extrinsic material here is not uniformly of assistance to the Commissioner.[23] It may be that the vice of splitting a single business into several businesses, referred to in the explanatory memorandum and emphasized by the Premier in his second reading speech,[24] explains the choice of the expression "a trade, business or profession" in the singular in the old s.9A(1).

That conclusion is enough to dispose of the appeal; but Mrs Batrouney submitted that, even if "business" did include "businesses" in paragraph (c), the relevant employees here were not employed solely or mainly to perform duties for or in connection with the businesses carried on by the retailers. Instead, it was said, they were employed solely or mainly to perform duties for Muirs. When the case was before this Court on the earlier occasion a similar argument succeeded in relation to paragraph (d). The second question referred to in [7] above is whether paragraph (c) should be similarly construed, even though paragraph (d) requires the characterization of an agreement, arrangement or undertaking and paragraph (c) focusses on the purpose for which persons are employed. The argument that it should be so construed was rejected both by the Tribunal and by Mandie, J., but it is unnecessary for us to decide the question and I think it is better not to do so. New provisions were substituted for s. 9A(1A)(b), (c) and (d) by s.19 of the State Taxation Acts (Miscellaneous Amendments) Act 2003. If it is contended in future that the distinction drawn in the earlier case in relation to paragraph (d), or a similar distinction, is applicable to paragraph (c), that question will have to be answered by reference to the new paragraph (c), the context in which it finds itself and the explanatory memorandum to the State Taxation Acts (Miscellaneous Amendments) Act.[25]

I turn to the third and fourth questions referred to in [7] above, namely whether the respondents need leave to cross-appeal and, if so, whether such leave should be granted. The relevant statutory provisions are s.148(1)(b) of the Victorian Civil and Administrative Tribunal Act and s.17A(3A)(a) and (4)(b) of the Supreme Court Act 1986. Section 148(1)(b) provides that a party to a proceeding in the Tribunal may, in certain cases, appeal to the Trial Division, on a question of law, from an order of the Tribunal in the proceeding if the Trial Division gives leave to appeal. Section 17A(3A)(a) provides that an order made by the Trial Division constituted by a judge on an appeal under s.148(1)(b) is not subject to appeal to the Court of Appeal except by leave of the Court of Appeal or by leave of the judge constituting the Trial Division. Section 17A(4)(b) provides that an appeal does not lie to the Court of Appeal, without leave of the judge constituting the Trial Division or of the Court of Appeal, from a judgment or order in an interlocutory application, being a judgment or order given by the Trial Division constituted by a judge. There are exceptions which are not relevant to the present case.

The respondents or some of them desired to cross-appeal in relation to three issues. The first concerned the application of the degrouping provisions in sub-s.(1J) as an answer to paragraph (c).[26] Should the other members of the Court agree in my conclusion above, the respondents will succeed on paragraph (c) and no question will arise as to the application of sub-s.(1J) as an answer to that paragraph.

The second and third issues both related to the seven respondents referred to in [5] above. They are all discretionary beneficiaries of the Muir Investment Trust, so I shall call them "the beneficiary companies". It will be recalled that the matter of the assessments against them was remitted to the Tribunal for the assessments to be adjusted and for further hearing. The second issue was whether Mandie, J. should have held that s.9A(1C)(e) could not apply to the beneficiary companies, because "it is not applicable to a trust that does not carry on a business". The third issue related to the application of the degrouping provisions in sub-s.(1J) as an answer to s.9A(1C)(e).

The Tribunal did not decide whether the beneficiary companies constituted a group pursuant to s.9A(1C)(e), because it held that all the respondents were to be grouped under paragraph (c). In relation to sub-s.(1J) the Tribunal said two things. First, if I understand its reasons correctly, it considered that it was impossible to be satisfied that the business of any of the retailers was carried on independently of, and was not connected with the carrying on of, a business carried on by Muirs. Accordingly the condition precedent to degrouping was not satisfied. Secondly, it said that, if it were wrong about the condition precedent, it would have exercised the discretion to degroup "no matter which basis may have been adopted to effect the grouping".

Mandie, J.'s conclusion on paragraph (c) meant that the applicability of s.9A(1C)(e) would have to be decided and he remitted that question to the Tribunal. In doing so, his Honour took a similar course to the course adopted by this Court when we decided that paragraph (d) was not applicable. He said nothing about sub-s.(1J), except that the remitter in relation to the assessments against the beneficiary companies would involve further hearing on all aspects, including degrouping under that sub-section.

Mrs Batrouney argued that leave to cross-appeal was unnecessary for two reasons. First, it was submitted that, whilst s.17A(3A)(a) of the Supreme Court Act required an appellant to obtain leave to appeal, it did not require a respondent to obtain leave to cross-appeal, and that, once leave to appeal was granted, a cross-appeal could be brought as of right. Secondly, it was submitted that Mandie, J. erred in not granting leave to appeal under s.148(1)(b) of the Victorian Civil and Administrative Tribunal Act on questions of law relating to s.9A(1C)(e) and sub-s.(1J) and that his Honour's implied refusal to grant such leave was a final order from which an appeal lay as of right.

In my opinion, both branches of that argument should be rejected. It would defeat the purpose of s.17A(3A)(a) if leave to appeal were necessary but leave to cross-appeal were not. The factors making it appropriate to grant leave to an appellant might be wholly inapplicable in relation to the different point sought to be raised by a respondent. Similar considerations apply to s.17A(4)(b), to which counsel said the argument would also apply.[27] She contrasted the silence of the Supreme Court Act on leave to cross-appeal with Order 70 Rule 6(4) of the High Court Rules, which provides that a cross-appellant will be entitled to proceed with the cross-appeal only if special leave, which may be sought when the appeal is called on for hearing, is granted. To my mind that sub-rule is consistent with my view. It presupposes that the grant of leave or special leave to appeal does not confer an entitlement to cross-appeal as of right.[28]

The second branch of the argument fails because, if an implied refusal of leave to appeal under s.148(1)(b) can be spelled out of Mandie, J.'s decision, that refusal was interlocutory. It did not "finally determine the rights of the parties in a principal cause pending between them".[29] The matter of the assessments of the beneficiary companies was remitted to the Tribunal. Moreover, it may well be that the refusal of leave to appeal would in any event be interlocutory because it would be theoretically possible to make a fresh application if circumstances changed, but that need not be decided. [30]

Leave to cross-appeal being necessary,[31] should such leave be granted? It was said that both the s.9A(1C)(e) and sub-s.(1J) points had good prospects of success and that the resolution of either of them in favour of the beneficiary companies would finally bring this litigation to an end. We were asked not to allow the matter to go back to the Tribunal for a third time with the prospect of a third appeal to the Trial Division and this Court.

Important though those considerations are, we could not allow a cross-appeal unless the learned primary judge erred. In my opinion, his Honour did not err. He was entitled to remit the question of the applicability of s.9A(1C)(e), which the Tribunal had not decided. The Tribunal had decided that the condition precedent in sub-s.(1J) could not be satisfied, but only, I think, as an answer to paragraph (c). That is so notwithstanding the Tribunal's intimation that, if it could, it would have exercised its discretion favourably to the respondent "no matter which basis may have been adopted to effect the grouping". A decision on the applicability of sub-s.(1J) in relation to the beneficiary companies, if paragraph (c) did not apply to them but s.9A(1C)(e) did, would have been premature, as Mandie, J. recognized when he expressly said that the remitter would encompass all aspects, including degrouping under sub-s.(1J). The Tribunal will not be bound on the remitter by anything it has said so far about that sub-section. There was no occasion to grant leave to appeal under s.148(1)(b) in relation to s.9A(1C)(e) or (1J). His Honour not having fallen into error, leave to cross-appeal must be refused.

For these reasons, I would dismiss the appeal, dismiss the cross-appeal as incompetent and refuse leave to cross-appeal. That will mean that the order for remitter in relation to the assessments against the beneficiary companies will remain, but it may be that the parties should consider the utility of proceeding further. The main issues, affecting all the respondents, were those relating to paragraphs (c) and (d). They have been determined and, as it happens, remedial legislation has been enacted. All that is left is the applicability of other provisions of s.9A to the beneficiary companies. The perceived difficulty[32] and the expense of resolving that question may not be worthwhile now that the main issues have been settled. At the end of the day, however, that is a decision for the parties and not for the Court.

I have had the advantage of reading in draft the judgment of Callaway, J.A. and, for the reasons therein given, I agree that the appeal and cross-appeal should be dismissed and that leave to cross-appeal should be refused.

[1] I would add, for completeness' sake only a reference to the meaning of "expressly provided" (to the contrary, etc.) in Energy Brix Aust. Corporation Pty. Ltd. v. National Logistics Coordinators (Morwell) Pty. Ltd. [2002] VSCA 113; (2002) 5 V.R. 353 at 360 [13] fn.16 and the cases there cited.

[2] Pursuant to s.30(2) during the period with which we are concerned but now pursuant to s.8A.

[3] The Muir Electrical Co. Pty. Ltd. v. Commissioner of State Revenue [2001] VSCA 86; (2001) 4 V.R. 70 at fn.5.

[4] The Muir Electrical Co. Pty. Ltd. v. Commissioner of State Revenue at [1], [17]-[19] and [21].

6] The Muir Electrical Co. Pty. Ltd. v. The Commissioner of State Revenue (No. 2) [2002] VSC 224.

[7] The Muir Electrical Co. Pty. Ltd. v. Commissioner of State Revenue (Vic.) (1998) 99 A.T.C. 2083.

[8] The expression "9 or" was omitted from sub.s (1) on 25th June 1996, when s.21(a) of Act No. 10 of 1996 came into operation.

[10] I deliberately omit the test which their Lordships said may often be helpful. That test, proffered by the Board in Sin Poh Amalgamated (H.K.) Ltd. v. Attorney-General of Hong Kong [1965] 1 W.L.R. 62 at 67, is decisive if the hypothetical question is answered in the affirmative, but it is of limited utility in other cases, particularly as it says "would" rather than "might". Sometimes one simply does not know what the legislature would have done if an amendment had been proposed that would change the character of the legislation. Compare [[] below.

11] This example comes from s.9A(1C)(a), which it was unnecessary to set out above.

[12] That does not exclude a partnership: see the definition of "person" in s.3.

[14] Similarly, it is not enough to say that paragraph (c) would still be a provision directed to the purpose for which persons are employed. Section 185 would still have been a provision directed to the compulsory acquisition of shares.

[15] The degrouping provision included in s.9A, as originally inserted by s.2 of the Pay-roll Tax Act 1974, required the employer to satisfy the Commissioner, among other things, that the relevant trade, business or profession was not carried on with an intention of avoiding or evading the payment of tax.

[16] The Muir Electrical Co. Pty. Ltd. v. Commissioner of State Revenue at [1], [14] and [21].

18] Commissioner of Stamps (South Australia) v. Telegraph Investment Co. Pty. Ltd. [1995] HCA 44; (1995) 184 C.L.R. 453 at 463 and 479.

[19] Section 3 now defines "business" to include a trade or profession.

[20] See, however, Eades v. Sundowner Caravan Parks Pty. Ltd. [1983] VicRp 48; [1983] 1 V.R. 514 at 519 and the cases there cited and compare Shanmugam v. Commissioner for Registration of Indian and Pakistani Residents [1962] A.C. 515 at 526-527, Roy Morgan Research Centre Pty. Ltd. v. Commissioner of State Revenue [2001] HCA 49; (2001) 207 C.L.R. 72 especially at [11] and Fernandez v. Director of Public Prosecutions [2002] VSCA 115; (2002) 132 A.Crim.R 270 at fn. 37.

[22] The Muir Electrical Co. Pty. Ltd. v. Commissioner of State Revenue at [15]. See also Re Bolton; ex parte Beane [1987] HCA 12; (1987) 162 C.L.R. 514 at 518, 532 and 547 and R. v. Best [1998] 4 V.R. 603 at 610.

[23] I put to one side the question of the extent to which, or the caution with which, extrinsic material may be used when it dates from an era when its use was largely confined to identifying the mischief to which an Act was directed. See now s.35(b) of the Interpretation of Legislation Act.

[24] Hansard, Legislative Assembly, 23rd October 1974 at 1504-1505.

[25] The explanatory memorandum shows that the new provisions were substituted as a result of the decision of this Court in the earlier case and the decision of Mandie, J. the subject of the present appeal. Language was included in the new paragraph (d) to negate the argument under consideration. Similar language was not included in the new paragraph (c). It may be that Parliament thereby impliedly approved Mandie, J.'s rejection of the argument in relation to paragraph (c). Compare Re Alcan Australia Ltd.; ex parte Federation of Industrial, Manufacturing and Engineering Employees [1994] HCA 34; (1994) 181 C.L.R. 96 at 106-107 and the cases there cited.

[26] The issue was raised in the respondents' notice of contention but it was really a cross-appeal point. If the respondents had succeeded on it, the order made by Mandie, J. would have had to be varied. See Rule 64.17 of the Supreme Court (General Civil Procedure) Rules 1996.

[27] If Crombie v. Uniting Church in Australia Property Trust (W.A.) (1997) 17 W.A.R. 291 at 307F is, properly understood, to the contrary, I would respectfully decline to follow it. See also Capital Finance Corp. (Australasia) Pty. Ltd. v. Peter Pan Management Pty. Ltd. [2003] VSCA 93 at [11].

[28] See also Director of Public Prosecutions v. United Telecasters Sydney Ltd. [1990] HCA 5; (1990) 168 C.L.R. 594 at 602.

[29] Hall v. Nominal Defendant [1966] HCA 36; (1966) 117 C.L.R. 423 at 443. See also Little v. State of Victoria [1998] 4 V.R. 596 at 597-598 and the cases there cited.

[30] Postiglione v. R. [1997] HCA 26; (1997) 189 C.L.R. 295 at 305. Compare Roy Morgan Research Centre Pty. Ltd. v. Commissioner of State Revenue at [23].

[31] If the appeal is dismissed, it may be that the proper order would be an order granting leave to appeal with any necessary extension of time, rather than an order nunc pro tunc granting leave to cross-appeal, but nothing turns on that and the point need not be considered further..

[32] The Tribunal said that it had a lot of difficulty with the s.9A(1C)(e) point and related issues, which it described as a "smorgasbord of turgid exotica", and said that it was not alone.

Supreme Court (General Civil Procedure) Rules 1996

At a glance

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Before

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Judgment (69 paragraphs)

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Legislation Cited (2)