Davies and Jones v Western Australia [1904] HCA 46

Davies and Jones v Western Australia [1904] HCA 46 - HCA 1904 case summary — Zoe

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late of Fremantle, Western Australia, were called upon to pay H.C. or A. succession duty in Western Australia, upon the estate of their eae testator, including duty upon a sum of £8,055 representing the payres axp value of property passing under the will to one A. E. Davies, who - J°%#8 at the death of the testator was alleged to be a British subject T ; ( bond fide resident and domiciled in the State of Queensland. The Avsrratta. rate of duty for the estate in question according to the rules in the second schedule is 9 per cent., and A. E. Davies is a person occupy- ing to the deceased the relationship set forth in the third schedule. The Commissioner of Stamps demanded from the plaintiffs in respect of his share duty at the full rate of 9 per cent., which the plaintiffs paid under protest, and they now sue to recover one- half of that sum, claiming that under sec. 117 of the Constitution, A. E. Davies is entitled to the benefit of the provision in favour of persons bond fide residents of and domiciled in Western Aus- tralia. Sec. 117 is as follows: "A subject of the Queen resident in any State shall not be subject in any other State to any dis- ability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State." The defendants contend (1) that a privilege conferred upon a particular class of residents is not a discrimination within the meaning of sec. 117 of the Constitution, and that the real discrimination made by the Statute in question is not between residents of Western Australia and residents in other States, but between persons domiciled in Western Australia and other persons; and (2) that if the Western Australian Act offends against the Constitution it is the proviso only and not the prin- cipal enactment, under which duty is payable at 9 per cent., which is obnoxious to the rule, and that it must therefore be re- jected. It was further contended that the testator, who must be taken to have known the law, himself adopted the discrimination by giving a benefit to a person who, as he also knew, could not take it without becoming liable to the higher rate of duty. This last argument however was not pressed, and is obviously not tenable.

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H.C.or A. that the 117th section of the Constitution could not help th ae plaintiffs. 'To support this contention Mr. Draper, for the plai Dans AND tiffs, urged that the word "domiciled" was employed in Administration Act merely for the purpose of qualifying eword "residents" and that it had not in this connection 'Avstnatia. technical meaning which would be carried by the words "havin their domicil." It is possible indeed to read the qualification "bond fide" into a conjunction with "domiciled" as well as with "residents." ; The result of this process would be to help the plaintiffs' argu- ment so far as to deprive the word "domiciled" of all or part of what to my mind is its ordinary signification (at any rate in : Statute of a technical kind, such as this one), namely, " having their domicil"; that is, their domicil whether of origin or of choice. But with the qualification which the expression bond fide would attach to the word " domiciled," the character of mere intention - that is,the animusmanendi, would be sofar involved a to at least reduce the meaning to "having their domicil of choice, if indeed the word did not become merely an indication of more or less permanent residence. But I see no reason, in the context or otherwise, to suppose that the term "Lond fide" is intended to qualify anything more than the noun which immediately follows it - namely "residents." That word and "domiciled," being to legal minds distinctive in relation to each other, it is not easy to believe that they were selected by the draftsman only to be so qualified by one and the same term as to make it a question whether the legislative mind had not erroneously identified or, confused them. In my opinion the section intended that the persons to be preferred should be bond fide residents of Western Australia "having their domicil" in that State. Domicil of origin as well as domicil of choice would thus be included. And nothing has been suggested to render it even possible that the a lature intended strangely to discriminate against those born and - bred in Western Australia in favour of settlers choosing that State as their permanent home and making it their domicil. It appears then that the qualifications of bond fide residence i i Western Australia, and of domicil therein, have both been prescribed. True, they must concur to give a title to the

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their domicil in" or "whose domicil is in." The real question i what is the true interpretation of the word "domicil" in the context in which it stands. The word has a well known legal 'mea it also has acquired a popular meaning, A very good definitio showing both uses of the word is to be found in Dicey's Confli of Laws, at p.79: "The domicil of any person is, in gen the place or country which is in fact his 'permanent home, bu is in some cases the place or country which, whether it be in fae his home or not, is determined to be his home by a rule of Law The law ascribes to every man a domicil, that is to say, a countr by whose laws his rights of property are in certain respects to b regulated. For instance, questions arise as to the laws to b applied in the distribution of or succession to property on death of its owner, as to the laws which govern the validity of his will, or the liability of his property to legacy duty. None of these questions can be settled until it is determined in what country the deceased person was domiciled at the time of his death. ascertain therefore the country which the law ascribes to a man as his domicil at the time of his death well-known rules of law ar applied. Generally speaking the country in which a man perman- ently resides is his domicil, but that is not always so. Of this case of Winans v. Attorney-General (1) cited tous in argument a very strong illustration. Lord Westbury in Bell y. Kennedy (2 explains the distinction between residence and domicil. "R dence and domicil are two perfectly distinct things. It is neces in the administration of the law that the idea of domicil shoul exist, and that the fact of domicil should be ascertained, in order : determine which of two municipal laws may be invoked for purpose of regulating the rights of parties. We know very that succession and distribution depend upon the law of domicil. Domicil, therefore, is an idea of the law. It is the rela- tion which the law creates between an individual and a partie

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residents by virtue of residence must be equally accorded to 1 y the residents of other States. The word "resident" is not defined. As to what are its limitations, and to what extent, if at all, it corresponds to the word "citizen" as used in the American Constitution we are not called upon at present to decide. For the purposes of this case it is only necessary to say that the word has quite a different meaning from "domiciled" in its legal sense as I have explained. If the concession given by sec. 86 of the Western Australian Administration Act of 1903 were given "to all bond fide residents of Western Australia" coming within the named degrees of relationship to the testator, the plain- tiffs in this case would have good ground to complain that a dis- crimination contrary to the Constitution had been made against a resident of Queensland, but the section has not made the concession to all bond fide residents of Western Australia coming within the named degrees of relationship, but only to those who, in addition to being bond fide residents of Western Australia, are persons to whom the law ascribes Western Australia as their country of domicil. In my opinion the Constitution does not prohibit a State from conferring special privileges upon those of its own people whe,in addition to residence within the State,fulfil some other sub- stantial condition or requirement such as that which is made the condition of the concession allowed in this enactment. The power of raising money by probate taxation remains with the State of Western Australia, under section 107 of the Constitution, and the State can in raising that taxation make such concessions to, and confer such privileges on, its own people as it thinks fit so long as in doing so no provision of the Constitution is violated. As the enactment in question does not violate the Constitution it must stand good. It follows that the duty enacted by the probate officer was legally payable, that the plaintiffs' action must fail, and that judgment on jhe demurrer should be entered for the defendant.

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Before

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Judgment (160 paragraphs)