1. At the hearing the applicant was represented by Mr C Zelestis QC and the respondent by Mr R LeMiere QC. Evidence in chief was called by the applicant from Mr A, the Tenure Manager in the Mineral Titles Division, Department of Minerals and Energy of Western Australia, Mr B, the Tenement Manager for Newcrest Mining W A Limited ["Newcrest"], Mr C, Properties Officer with Western Mining Corporation Ltd ["WMC"] and Mr D, joint Managing Director of the applicant. Seven exhibits were taken in and the Tribunal had before it the documents filed pursuant to s37 of the Administrative Appeals Tribunal Act 1975 ["the T documents"].
2. The object of Mr A's evidence was to establish that, when mineral leases and prospecting or exploration licences are granted by the State Minister for Minerals and Energy, roads are not excised therefrom. His evidence was to this effect. However, mining and prospecting activity would not be carried out on, or in close proximity to, roads without the express consent of the local shire council and subject to the Minister attaching whatever conditions are considered appropriate. If mining is to be carried out on a road then that approval would require the mining company to re-route the road, usually at its expense, as has happened on occasion. Further, in relation to mineral and prospecting leases, there is a general requirement that mining, exploratory or similar work be carried out.
3. Mr B and Mr C are respectively officers of the principals, Newcrest and WMC respectively, for which the applicant undertakes ore haulage from mines to processing plants and other related activities in the conduct of the mining operations of those companies. The object of their evidence was to establish that the various mineral leases, prospecting, exploration and miscellaneous licences ["the tenements"] are premises controlled by either principal or adjacent premises controlled by them.
4. Exhibits taken in the course of their evidence included Mines Department maps (Ex. A1) of the tenements belonging to the principals over which the applicant hauled ore and other products for the principals in their respective mining operations. These maps were supplemented by a "mud map" of the relevant area (Ex.R2) and a map of the south-west of the State (Ex. A7) to show the relative location of the tenements which included the mines and the respective ore processing plants.
5. Mr B is the Tenement Manager for Newcrest, responsible for that company's applications for tenements and ongoing administrative maintenance of those tenements. The latter responsibilities include ensuring rents are paid on time and that the required reports to the Department of Minerals and Energy are lodged. His evidence was that Newcrest's processing plant is located on one of that company's mineral leases, known as Slippery Gimlet, which lease is currently being mined along with other mineral leases. Those also mined by Newcrest during the relevant period covered by this application were the Ora Banda, Zuleika and Breakaway Dam tenements. In addition, Newcrest, which explores for and mines gold, holds other leases which, whilst not currently being mined, are the subject of exploration from time to time. Unproductive leases are surrendered as a matter of company policy. Total expenditure, including mining for each of the most recent years has approximated $34 million. However, the actual sites of the mining operations on Slippery Gimlet, Ora Banda, Zuleika and Breakaway Dam occupy only a relatively small area of the leases.
6. The "mud map", (Ex. R2), indicates roughly the juxtaposition of all the mines and the processing plants serviced by the applicant's vehicles. The Newcrest mines, called Breakaway Dam and Zuleika and their gold processing plant, are in the area known as Ora Banda. This map shows that Ora Banda is north of the township of Kalgoorlie. The Newcrest mines, their proximity to the Ora Banda processing plant and the nature of the roads over which the ore is hauled are as follows:

- Breakaway Dam to Ora Banda ~ 18 kilometres south east of Ora Banda, firstly over the mining lease, then roads on a miscellaneous licence and finally on public (shire) roads; and

- Zuleika to Ora Banda ~ 25 kilometres south west of Ora Banda, firstly over the mining lease, then roads on a miscellaneous licence and finally on public (shire) roads.

1. It is noted that haulage from the mine at Ora Banda to the processing plant there is within Newcrest mineral leases.
2. Haulage of ore from Ora Banda [reference: Map 6; M 24/29][1], Zuleika [reference: Map 4; M 16/45] and Breakaway Dam [reference: Map 2, M 16/106] mines, traverses both private roads on Newcrest's miscellaneous leases and public roads.
3. Mr C is responsible for the management of all WMC's tenements. WMC mines for both gold and nickel and, depending on the site of the mine, the ore is hauled to either the Kambalda or Kalgoorlie processing plant. The Kambalda processing plant is located north east of the East Kambalda townsite [reference: Map 23 on mineral lease ML 150] and the Kalgoorlie Nickel smelter is located on freehold title [reference: Map 15; CG Loc 100] near the town of Kalgoorlie. Nickel ore is crushed at the Kambalda plant and may be transported to the nickel smelter in Kalgoorlie for further processing. From there it is transported by rail to Kwinana for further processing, an operation in which the applicant is not involved. Some gold is produced at Kambalda and may also be produced as a by-product from the nickel refining process. The evidence is that the mine areas occupy only a relatively small part of the respective tenements and that the area of each of the Kambalda processing plant and the Kalgoorlie smelter is approximately 3 hectares.
4. Maps (Ex A1, maps numbered 1 to 37) depict the approximate location of mines. Mr "C"'s evidence is that WMC carries out mining in an area known as Widgie Dome, which covers mines at Mt Edwards [reference: Map 29, ML15/102], Wannaway [reference: Map 24; ML 15/89], Mariners [reference: Map 26; ML15/92] and Redross [reference: Map 23A;n ML 15/90]. It also mines at Blair [reference: Map 16, ML 26/220], Mt Burgess [reference: Map 7; ML 15/125] and St Ives which is a name given to a group of mines (called Defiance, Foster, Victory, St Ives, Junction and Lan Franchi [T, p.61]) in close proximity [reference: Maps 22, 23, 34 and 35]. Mines can produce ore for both nickel and gold.
5. The WMC mines, their proximity to the Kalgoorlie nickel smelter or the Kambalda processing plant, (which plants are about 50 kms apart with access by public roads) and the nature of the roads over which the ore is hauled are as follows:

- Mt Burgess to the Kalgoorlie nickel smelter - about 58 kms, traversed firstly over a road on a miscellaneous licence, then by the Coolgardie North Road, a public road, then by another miscellaneous licence road onto the Great Eastern Highway, a public road and finally onto another miscellaneous licence road to the smelter.

- Blair to the Kambalda nickel plant - about 41 kms to the north of the Kambalda nickel plant, traversed firstly, for about 5.9 km over a miscellaneous licence road, then on a public shire road for about 17.5 km onto a public road, the Kalgoorlie/Kambalda highway, for about 16.8 km to the plant.

- The Widgie Dome area, consisting of the Mt Edwards, Wannaway, Mariners and Redross mines are all located to the south of the Kambalda nickel plant, near the Coolgardie/Esperance Highway. Access to the plant is via that highway then onto the Emu Rocks Road. Access from each mine to the Coolgardie/Esperance Highway is via a miscellaneous licence road. The approximate distances from the plant are: Mt Edwards, 44 kms; Wannaway, 79 kms; Mariners, 63 kms; and Redross, 68 kms.

- The St Ives nickel and gold operations are in relative close proximity to each other, in a southerly direction from the Kambalda nickel plant. Access is via private roads on miscellaneous leases which traverse mineral leases belonging to WMC. None of the haulage is over public roads and all is within a continuum of WMC's mineral leases, that is, to the gold treatment plant and to the Kambalda nickel plant. The approximate distance of these operations from the Kambalda plant is about 50 kms (reference: Ex. A1, Map 37). The Widgie Dome area of leases is less than 1 kilometre distance from the closest St Ives lease. However, to travel by road from one to the other covers a distance of at least 40 kilometres along the Coolgardie/Esperance highway and Emu Rocks Road to the Kambalda nickel plant which abuts the most northerly part of the St Ives leases.

1. Roads constructed on miscellaneous licences must be maintained by the licensee whereas shire roads can be maintained by both the applicant, as a condition for it having a road train licence, and also the shire council, to which rates are paid.
2. The mine areas of both principals are generally fenced for safety reasons (Breakaway Dam is an exception). Private roads into mine areas have signs to warn the public that they are private roads and some have gates.
3. The essence of Mr D's evidence is set out in some detail below since it is critical to considerations concerning the use of the applicant's vehicles and whether that use is within premises controlled by the principals or in going between adjacent premises.
4. Mr D is a joint managing director of the applicant and has been involved in its business for approximately 28 years. That business, so far as is relevant, is the transportation, under contract, of nickel and gold ores and sand from mine sites to processing plants. The business also involves the processing of waste products into blue metal for one of the principals and on its own account. Road haulage is undertaken for the principals and also on the applicant's own account in its processing and sale of blue metal. In addition to haulage from the mine sites mentioned in the evidence of both Messrs B and C, by-products of processing, aggregate and fines, are carted from the processing plants to the Widgie Dome mine sites as back-loads. Aggregate and fines are used to make mine site roads. Also, sand is transported from the Mt Burgess mine area to the Kalgoorlie nickel smelter. Sand is used for flux in processing.
5. As mentioned, the applicant hauls blue metal for one of the principals and on its own account. It produces blue metal, under licence, by crushing mine by-products in its plant at Kambalda. It transports blue metal to various WMC mine sites and also to its own customers in and around the Kalgoorlie area. The vehicles used for this operation are generally those which are to return to the Blair mine. This involves a diversion. Instead of turning east off the Kalgoorlie/Kambalda highway along Mount Martin Road to Blair, the vehicles continue along the highway and Anzac Drive for about 33 kms to the Kalgoorlie area to make the delivery before returning along that route to the Mount Martin Road turn-off. So, in effect, the 16.8 km stretch of the Kalgoorlie/Kambalda highway between the Kambalda nickel plant and Mount Martin Road, travelled in both directions (i.e. 33.6 kms plus the return distance from the crushing plant to the highway, in total about 14 kms), being about 48 kms, is the "back-load" part of an overall trip of about 178 kms, ending with a load of ore from Blair to the Kambalda nickel plant; (Ex. A7, p.12).
6. The evidence (Ex. A5.1 to 5.3; see below) shows the proportion of productive time of three selected vehicles used intermittently for blue metal cartage. These exhibits are tendered as evidence of typical truck usage patterns over five annual periods. Exhibit A5.2 indicates significant (9% for 1992-93) blue metal cartage use for truck T13 during the year of income in question, whereas for trucks T9 and T15,[1] the usage is not significant (being about 1%). Mr D estimated that the applicant hauled about 200,000 tonnes of blue metal annually, of which WMC used about three-quarters. The remaining quarter was sold to customers in and around the Kalgoorlie area. A minor part of this haulage was done by sub-contractors to the applicant.
7. The applicant's blue metal crushing plant is located at the WMC "mullock" stockpile, on freehold at the site of the old Dirkin mine [reference: Map 22, Hampton Loc 48]. The haulage from this site to the applicant's crushing plant is over a distance of about 6 km [Ex. A7, p12] covering 2.4 km over WMC freehold property [Hampton Loc 48] and 3.6 km over WMC mineral lease, ML 149. From there the blue metal, bound for WMC mines, is delivered on demand to mines at Blair, Widgie Dome, St Ives and Karnelia which, like St Ives, is on WMC roads across its mineral leases. These trips are always organised as back-loads after having delivered ore to the Kambalda nickel plant.
8. In addition to carting ore and blue metal, the applicant also carts processing plant waste materials to the mullock dumps near the Kambalda processing plant. These waste materials are used for back-fill in WMC's underground and open cut mining operations. The waste (called slime) is carted as back-loads from the plant to the various mine sites.
9. The evidence is that the applicant's vehicles are designed for ore haulage rather than blue metal haulage, the latter requiring a lighter steel and therefore enabling a higher tonnage to be carted.
10. Further, the applicant is required by the relevant shire council to maintain shire roads over which it uses its road-trains (as part of the road-train licence) and the miscellaneous licence roads belonging to WMC and Newcrest, as part of the haulage contracts. The public roads and highways are maintained by the government. Further, the mineral leases and miscellaneous leases are generally over pastoral land.
11. The applicant employs 14 trucks, 10 of which are road trains. This review concerns objection decisions in relation to sales tax charged on parts purchased in April, May and June 1993, for repair of these trucks.
12. Summaries of productive hours of three of the applicant's trucks were produced in evidence (Ex. A5.1 - A5.3) as depicting typical use of its trucks for five annual periods ending 30 June, for 1990/91, 1991/92, 1992/93, 1993/94 and 1994/95. These show productive hours of use, that being described as when the trucks are on a cartage job. Non-productive time, which includes maintenance and idle time, is not reflected in the summaries. The summaries show, for each selected vehicle, its recorded productive hours of use in relation to haulage for WMC, Newcrest and blue metal to other than WMC customers. The schedules show the productive hours for the vehicle in relation to each of the mines, back-loads and what has been termed "WMC-Kambalda" (Mine Lease Roads) use. These schedules are complemented by those tendered as Ex. R1 (see footnote 2).

1. From the evidence the Tribunal finds the following facts:
   1. The applicant's relevant business, using general purpose road vehicles (being heavy haulage trucks and road trains) is

- haulage of ore, under contract to Newcrest and WMC from their various mines to the respective treatment plant;

- haulage of sand used for flux, under contract, from stock piles belonging to WMC to treatment plants;

- haulage of WMC's slime and other waste, under contact, from mine sites to waste dumps;

- haulage of waste from waste dumps at the Kambalda nickel smelter, under licence to WMC, to the applicant's blue metal crusher;

- haulage of blue metal under contract, to WMC mines;

- haulage and sale of blue metal to customers in and around the Kalgoorlie township; and

- maintenance of shire roads and private roads traversed in the course of the haulage business;

1. haulage takes place over various tenements belonging to Newcrest and WMC and on public highways and shire roads, some of which traverse Newcrest or WMC leases or licences;
2. roads constructed on miscellaneous licences and mineral leases are private roads, either fenced (in actively used pastoral districts) or sign- posted to indicate their private nature, and whilst not available for use by the public are in fact the subject of unauthorised use by the public;
3. haulage to Newcrest's treatment plant at Ora Banda from Breakaway Dam and Zuleika mines traverses both private and shire roads, the latter constituting 50% and 27% respectively of the journey[2];
4. haulage to the Kalgoorlie nickel smelter from WMC's Mt Burgess mine traverses private roads and highways, the latter constituting 37% of the journey ;
5. haulage from WMC's Blair mine to the Kambalda nickel plant traverses private roads and the Kalgoorlie/Kambalda highway, the latter constituting 61% of the journey;
6. haulage from the St Ives mines to the St Ives gold treatment plant and from those mines to the Kambalda nickel plant is on private roads traversing WMC mineral leases;
7. haulage from WMC's Widgie Dome mines at Mt Edwards, Wannaway, Mariners and Redross to the Kambalda nickel plant traverse private roads, the Coolgardie/Esperance highway and Emu Rocks road. The percentage of those journeys on public roads are: from Mt Edwards, 50%; Wannaway, 44%; Mariners, 58%; and Redross, 54%;.
8. haulage of blue metal to customers in and around Kalgoorlie is not undertaken for an "exemption user" as that term is defined in Chapter 1, Subchapters 1 (Mining) and 1.5 (Miscellaneous), of the Sales Tax (Classifications and Exemptions) Act 1992_, [the Exemptions Act"];_
9. maintenance of the shire and private roads carried out by the applicant under contract to WMC are operations which would ordinarily be done by WMC in the course of its mining business;
10. the Widgie Dome group of mineral leases and those known as St Ives are geographically less than 1 kilometre apart at their nearest point; however, to travel by road from one group to another requires a trip of at least 40 kilometres;
11. the shortest geographical distance (not the shortest road distance) between the various mines and the respective processing plant are: Breakaway Dam, 16.2 kms; Zuleika, 17.4 kms; Mt Burgess, 45 kms; Blair, 31 kms; Mt Edwards, 35 kms; Wannaway, 53 kms; Mariners, 49 kms; Redross, 56 kms; and St Ives, 22 kms [Ex. A4];
12. all tenements held by Newcrest and WMC respectively are integrated into their respective mining and ore processing businesses in relation to which the applicable State law compliance requirements are met. Both Newcrest and WMC surrender any such lease or licence which is not considered productive, potentially productive or integral to its business;
13. at the time the applicant purchased the relevant parts for which sales tax exemption is claimed, it intended that the vehicles to be repaired using those parts would be used in carrying on its business, as described above, into the foreseeable future; and
14. the applicant uses 14 general-purpose road vehicles in its haulage business, none of which is exclusively dedicated to a particular route.

24 An assessable dealing is not taxable if:

(a) the goods are covered by an exemption Item that is in force at the time of the dealing; and

(b) all the requirements of that Item have been met at or before the time of the dealing.

4(1) Schedule 1 has effect for the purposes of those parts of the Assessment Act that refer to exemption Items. The Schedule does not by itself have the effect of exempting an assessable dealing from sales tax.

4(2) In broad terms, Schedule 1 has the following effects (through the Assessment Act):

(a) if all the requirements of an exemption item are satisfied at or before the time of an assessable dealing, the dealing is not taxable;

(b) a non-lease AOU is not taxable if, at the time of the AOU, the applier has the intention of satisfying the requirements of an exemption item.

(c) - (ca) not relevant

(d) an intention to satisfy the requirements of an exemption Item can be a ground for quoting;

...

The terms "AOU" and "non-lease AOU" are defined in s5 of the Assessment Act as:

(5) ...

"AOU" means application to own use.

"non-lease AOU" means an application to own use that does not consist of the granting of a lease;

Schedule 1 of the Exemptions Act contains the following relevant items:

(1) goods for use by a person ("the exemption user") mainly in carrying out one or more of the following activities:

(a) mining or prospecting operations in the course of a business of carrying out mining or prospecting operations;

(b) not relevant

(c) an activity that is ancillary (as defined in section 10) to one or more activities covered by paragraph (a) or (b);

(d) an activity that is ancillary (as defined in section 10) to one or more activities covered by paragraph (c).

(2) Eligible raw materials and parts (as defined by section 11) in relation to activities covered by subitem (1).

(a) generally-excluded property (as defined by section 12);

(b) a general-purpose road vehicle, unless it is for use exclusively:

• (i) within premises controlled by the exemption user and used by the exemption user mainly in carrying out one or more activities covered by subitem (1); or

• (ii) in going between adjacent premises covered by subparagraph (i); or

• (iii) for a combination of both;

and is not for use, to any extent, in any part of premises described in subparagraph (i) that is used, or for use, mainly in connection with a township, accommodation complex or similar place;

(c) goods for use mainly in connection with administrative activities (other than activities covered by paragraph (1)(c) or (d).

(4) In this Item, "mining or prospecting operations" means:

(c) exploring or prospecting for deposits that are to be recovered by mining or quarrying operations.

(1) goods for use by a person ("the exemption user") mainly in carrying out one or more of the following activities:

(a) storing, handling, transporting or dispatching qualifying goods of the exemption user on premises that are controlled by the exemption user, except where the storing, handling, transporting or dispatching is on premises, or parts of premises used mainly in connection with the retail sale of goods at those premises to the general public;

(b) an activity that is ancillary (as defined in section 10) to one or more activities covered by paragraph (a);

(c) an activity that is ancillary (as defined in section 10) to one or more activities covered by paragraph (b).

(2) Eligible raw materials and parts (as defined in section 11) in relation to activities covered by subitem (1).

(3) This Item does not cover:

(a) not relevant

(b) a general-purpose road vehicle, unless it is for use exclusively:

(i) within premises that are controlled by the exemption user (not including so much of those premises as is used, or for use, mainly in connection with the retail sale of goods at those premises to the general public); or

(ii) in going between adjacent premises covered by subparagraph (i); or

• (iii) for combination of both.

ITEM 36_:_ [Subcontractors]

(1) Goods ("the exemption goods") for use by a person ("the exemption user") mainly in carrying out one or more activities described in subitem (1) of exemption Item 1, ..., 28, ..., on behalf of one or more other persons ("the principals"). For this subitem to apply, either the condition in subitem (2) of this Item or the conditions in subitem (3) of this Item must be met for each activity ("countable activity") that is relied on to establish that this subitem applies.

(2) If the exemption goods were for use by the principal concerned mainly in carrying out the countable activity at the place at which the activity is to be carries out by the exemption user, the exemption goods would (in relation to the principal) be covered by the Item in which the countable activity is referred to.

(3) All the following conditions must be satisfied:

(a) the countable activity is to be carried out by the exemption user on premises controlled by the exemption user;

(b) the exemption goods are not for use by the exemption user mainly in connection with any business of the exemption user that involves selling goods (other that qualifying goods of the exemption user);

(c) the goods would be covered by exemption Item 28 (in relation to the principal concerned) if:

• (i) the goods were for use by the principal mainly in carrying out the countable activity on premises at which the activity is to be carried out by the exemption user; and

• (ii) those premises were controlled by the principal.

(4) Subitems (2) and (3) are to be applied on the assumption that the principal concerned is registered at all relevant times.

(5) Eligible raw materials and parts (as defined in section 11) in relation to activities covered by subitem (1).

Sections 11 and 12 of the Exemptions Act relevantly provide_:_

11(1) Any subitem in Chapter 1 that refers to ... parts in relation to specified activities is to be read as referring to the following goods:

(a) ...

(b) goods for use by the exemption user exclusively as parts for goods/equipment for use by the exemption user mainly in carrying out one or more of the specified activities;

(c) ...

11(2) In this section:

"goods/equipment" mean goods, or machinery, implements or apparatus.

12(1) The following property is generally-excluded property:

(a) motor vehicles covered by Item 1 in Schedule 5 (other than vehicles known as four-wheel drive vehicles):

(b) ...

(c) ...

(d) ...

1. Item 1 of Schedule 5 to the Exemptions Act refers to "luxury motor cars" and does not apply to the applicant's road vehicles for which the subject parts have been purchased.

1. Notwithstanding that the onus of proving that the respondent's objection decision is wrong, rests with the applicant (s14ZZK of the Taxation Administration Act 1953), since the respondent made the relevant decision its submissions are summarised first.
2. The principal submission of the respondent is that, as a preliminary matter, the correct or proper interpretation of the statutory provisions requires the vehicles to be used exclusively under contract to the principals. That submission is examined first.
3. The respondent submits that subitem 36(1) of Schedule 1 to the Exemptions Act requires that for the parts in question to be exempt from sales tax they must, in the present context, be covered by exemption Items 1 or 28 in relation to each countable activity. A "countable activity" is prescribed by either subitem 36(2) or (3) and refers to the activities of the principals in carrying on their businesses. The respondent submits that for the applicant to succeed one of two tests must be satisfied:
   • (i) the parts, if purchased by the principals for their use would be covered, in this context, by Items 1 or 28; or,
     • (ii) the parts are for a countable activity of the principals carried out by the applicant on premises controlled by the principals; the parts are not for use by the applicant mainly in connection with a business which involves the sale of goods; and the parts, if purchased by the principals, would be for a use covered by exemption Item 28.
4. In the case of general purpose road vehicles or parts for their repair, exemption subitems 1(3)(b) and 28(3)(b) require that they be used exclusively in carrying out countable activities within premises controlled by the exemption user; or exclusively in going between adjacent premises controlled by the exemption user; or exclusively in relation to a combination of those two requirements. Should the general purpose road vehicles be used by a contractor for a principal in carrying out its countable activities then Item 36 requires that to be the exclusive use of those vehicles. The respondent submits, on the facts:

- that the requirements of Item 36 are not met because the applicant's general purpose road vehicles are not used exclusively in carrying out countable activities for the principals.

1. It submits that this is the correct interpretation of Item 36 which depends on Items 1 or 28 in the present context.
2. It is submitted that, if the Tribunal accepts this interpretation, that is the end of the matter and the decisions under review must be affirmed. This obtains because the evidence is that the applicant's use of the vehicles is not exclusive to the undertaking of countable activities for the principals, but includes some use in transporting blue metal in and around Kalgoorlie for sale, which is not a countable activity.
3. The respondent relies on a second submission in the event that the Tribunal rejects the first or finds that "exclusively" does not mean "without exception" such that minor or insignificant non-complying use would not disqualify either the principal or contractor. In this event its submission is:

- a combination of abutting mineral leases, and/or exploration, prospecting and miscellaneous licences ["tenements"], do not constitute "premises" as required by the legislation;

- the two principals' respective tenements are not "controlled" by them; and

- in any event the mining and processing areas are not adjacent.

1. In a related context, the Tribunal notes that exemption Item 1 is further qualified in that, should the general-purpose road vehicles be used to any extent in any part of premises controlled by the exemption user mainly in connection with a township, accommodation complex or similar place, then the vehicles or parts do not qualify for exemption. In this respect the evidence is that the town of Ora Banda (reference: Ex. A1, Map 1) is within the Newcrest mineral leases and the town of Widgiemooltha (reference: Ex. A1, Map 29) is between WMC's Widgie Dome area leases and its St Ives leases. Otherwise none of the leases or licences in question contains a township, accommodation complex or similar place although the blue metal sales require transport in and around the Kalgoorlie township.
2. In sum, therefore, the respondent submits in the alternative - on the evidence, the vehicles in question, whilst mainly used in contract work for the principals, insofar as that use is concerned, are not used exclusively on premises controlled by Newcrest and WMC respectively or in going between adjacent premises controlled by those principals. Accordingly, it follows that the parts in question do not qualify for exemption from sales tax.
3. Whilst the applicant's submissions turn on an interpretation of the same statutory provisions upon which the respondent relies, paradoxically it submits that the exclusivity requirement for general-purpose road vehicles, pursuant to exemption sub-items 1(3)(b) and 28(3)(b), in respect of the principals for each countable activity, has no overall application to the sub-contractor's (i.e. the applicant's) use of the vehicles and parts. It submits that it is sufficient to meet the requirements of Item 36 that the applicant mainly, as distinct from exclusively, uses its general purpose road vehicles on contract work for the principals in carrying out their countable activities. The applicant maintains that the various mineral leases, exploration, prospecting and miscellaneous licences are premises in relation to each discrete mining area, which are controlled by the principals respectively and in the context of the legislative provisions, they are adjacent. Therefore, it submits, the vehicles, whilst used under contract for the principals, are used exclusively either within, or in going between, adjacent premises controlled by them.

1. The Tribunal deals first with the matter of the correct interpretation of the relevant statutory provisions. In context, it examines the following question:

IS THE USE OF THE APPLICANT'S GENERAL PURPOSE ROAD VEHICLES FOR THE PURPOSES OF TRANSPORTING BLUE METAL FOR SALE IN AND AROUND KALGOORLIE SUFFICIENT TO DISQUALIFY THE APPLICANT FROM EXCLUSIVE USE OF THOSE VEHICLES IN TERMS OF ITEM 36?

1. The Tribunal adopts the interpretation of Item 36 advanced by the respondent.
2. Although Item 36 exempts from sales tax, goods mainly used by the exemption user (that is, the applicant) in carrying out one or more countable activities described in subitem (1) of Items 1 and 28 (for the present purposes), it is qualified because, in relation to each countable activity, all of the conditions specified in subitems 1(3) or 28(3) must be met. For the purpose of the present analysis it is assumed that the provisions of subitems 36(3)(a) and 36(3)(b) are met[2]. However, the provisions of subitem 36(3)(c) require that for the exemption to apply to the applicant, in relation to both principals, the goods would be covered by Item 28 mainly in carrying out the countable activities[2].
3. Item 28 provides exemption in relation to goods for use by a person mainly in carrying out specified activities which include transporting qualified goods. However, subitem 28(3)(b) states that Item 28 does not cover a general-purpose road vehicle unless it is for use exclusively within premises or in going between adjacent premises controlled by the exemption user.
4. Therefore, whilst goods used by an exemption user (under both Items 1 and 28) qualify for exemption from sales tax even if only mainly (that is, more that 50% as defined in s3(2) of the Exemptions Act) used in carrying out, in the present instance, mining or prospecting operations, there is an exception for general purpose road vehicles. In their case they must be used exclusively as stated.
5. The Tribunal finds that the legislation in this respect is not ambiguous. It observes that this interpretation is consistent with the general tenor of the relevant statutory provisions. It would seem strange, in the alternative, that for a general purpose road vehicle owned by a mining company to be exempt from sales tax it must be used exclusively for countable activities, whilst one owned by another need only be used mainly under contract for countable activities. That result must be unintended as it would provide a competitive advantage to contractors of entities carrying out mining activities as against the entities themselves carrying out the same operation.
6. However, the Tribunal is of the view that "exclusively", in the context of the use of general purpose road vehicles devoted to mining operations, ought not be construed strictly literally. It would seem reasonable that incidental or insignificant use should not operate to deny an otherwise qualifying use. For instance, if a vehicle should need to travel away from the mine site for repairs or to make an occasional trip to the town dump or be used occasionally for charitable or community purposes, such incidental and minor use, in a pragmatic sense, ought not disqualify the user who would otherwise comply.
7. By reference to Ex. A5.1 - A5.3, being records of typical truck usage, it is evident that the use of the vehicles for cartage of blue metal, that is, the only use not exclusive to contract work for the principals, during the year ended 30 June 1993 (the relevant year in question) was 1% for vehicle T09, 9% for vehicle T13 and 1% for vehicle T15. The evidence is that these three vehicles typify the overall use of all 14 vehicles. However, having regard to the provisions of s24 of the Assessment Act and subsections 4(1) and (2) of the Exemptions Act, one needs to consider the facts at or before the time of the assessable dealing. In the previous year vehicle T13 was used for 19% of its productive time hauling blue metal, a not insignificant proportion of its use.
8. Having regard to the de minimis doctrine, "exclusively" should be, at least, considerably more than "mainly" (the other relational word used in the provisions) but not necessarily 100%. Words synonymous with "mainly" often used in revenue statutes are "primarily" and "principally" but those do no more than connote something more than 50%. Given that it may be reasonable, in some circumstances, to accept "exclusively" as something less than 100%, one needs to make a subjective judgement about appropriate non-exclusive circumstances. The Explanatory Memorandum accompanying the Sales Tax Amendment Bill (No.3) 1991, the Bill which became the Sales Tax Amendment Act (No2) of 1991 which amended the predecessor 1935 legislation, states:

"Exclusive use within eligible premises

Whilst ordinary meaning of "exclusive use" would suggest 100% use of the goods is required, the term has been interpreted by the courts to be subject to the de minimus (sic) non curat lex doctrine.

This means that occasional, irregular or insignificant use away from premises will not disqualify a general purpose road vehicle from exemption from tax.

Examples of use away from premises that would be acceptable as irregular and insignificant include:

• yearly motor vehicle registration tests;
• necessary servicing of the vehicle away from the premises;
• emergency situations where a vehicle is required to be taken 'off site'.

Examples of uses away from premises that would not satisfy the exclusive use test are:

• pick up and delivery vehicles which regularly leave the premises to pick up materials from suppliers etc;
• the garaging of vehicles off premises at employees' or other residences;
• travel between goods producers' premises where those premises are not contiguous." [Note that the word "contiguous" has been substituted by "adjacent" in the 1992 Exemptions Act.]"

1. These are examples only and do not presume to be an exhaustive list of acceptable exceptions. However, they imply a sense of necessity arising as ancillary to the qualifying use. The exceptional use made by the applicant in this case was for commercial purposes - to sell its blue metal to customers in and around Kalgoorlie. The evidence is that whilst the time spent on this activity was relatively minor in comparison to that spent on the principals' countable activities, the use was frequent if not regular. Usage, in terms of time, at or before the assessable dealing of between 19% and 9% of one (sample) vehicle's time, in the opinion of the Tribunal, is neither ancillary to the countable activity use nor insignificant.
2. Therefore, as the applicant's use of its vehicles in carting blue metal for sale disqualifies it from exemption from sales tax under subitem 36, the answer to the primary question is "yes". This, of itself, is sufficient for the Tribunal to affirm the decisions under review.
3. Should, however, the Tribunal be wrong in its interpretation of the scope of Item 36 in relation to the use of the applicant's general purpose road vehicles, or in its interpretation of the meaning of the word "exclusively," in context, then it needs to go further. Should the preferable view of the statutory provisions be that as submitted by the applicant - that it is sufficient for the applicant to use its vehicles mainly under contract work for the principals - then the Tribunal must examine the evidence in relation to whether that use is within or in going between adjacent premises controlled by the principals. In this respect the Tribunal first considers the scope of the phrase "premises controlled" and then the meaning of "adjacent premises" in context.

WHAT ARE THE RELEVANT PREMISES CONTROLLED BY THE PRINCIPALS FOR THE PURPOSES OF SUBITEMS 1(3)(B) AND 28(3)(B) OF SCHEDULE 1 TO THE EXEMPTIONS ACT?

1. Sales tax exemption provisions in relation to mining are intended to encourage the production of minerals in Australia and should be construed and applied liberally (see FCT v ICI Australia Ltd 72 ATC 4213 at pp. 4216, 4227; [1972] HCA 75; (1972) 127 CLR 529 at pp. 563; 581, as cited with approval by Beaumont J in FCT v Reynolds Australia Ltd & Ors 87 ATC 5018 at 5022 and Burchett J at 5030).

Also, in Reynolds, Beaumont J said (at 5022):

"In determining whether the [sales tax] exemption is applicable, it is appropriate to have regard to practical and businesslike considerations and, for this purpose, to look at the matter in the context of the taxpayer's activities as a whole (see Lockhart J in FCT v Northwest Iron Co Ltd 86 ATC 4202 at 4210-4211)."

1. The Tribunal, guided by Beaumont J's approach in Reynolds, at p.5022, finds that the ultimate question of characterisation in the present case, one of degree and judgment, is whether the relevant tenements are premises controlled by the principals.
2. The word "premises" is not defined in either the Assessment Act or the Exemptions Act. "Controlled" is defined inclusively in subsection 3(2) of the Exemptions Act as:

3(2) In this Act unless the contrary intention appears**:** ..."controlled", in relation to premises, includes owned or leased**;**

1. The crucial question is whether the principals' mines, their respective processing plants and the integrated (in a business sense) exploration, prospecting and miscellaneous licences are together to be regarded as "premises". Burchett J provides a relevant and instructive analysis in Reynolds case where his Honour states (at 5033-5034):

"The word 'premises' has a long history of use as a wide and general word referring to land or land and buildings. This is a secondary meaning derived from the fact that the lands referred to in a deed of grant were set forth in that part of the deed technically called the premises. In Blackstone's Law of England vol.2, p.298 the premises of a deed are said to contain, in addition to the names of parties, recitals of such matters 'as are necessary to explain the reasons upon which the present transaction is founded', and the consideration, 'the certainty of the grantor, grantee and the thing granted' was, of course, the land conveyed, which might or might not have buildings erected on it. The development in language which followed is explained by Lord Goddard CJ in Gardiner v Sevenoaks Rural District Council (1950) 2 All ER 84 at p.85 where he said:

' 'Premises' is, no doubt, a word which is capable of many meanings. How it originally became applied to property is, I think, generally known. It was from the habit of conveyancers when they were drawing deeds of conveyance referring to property and speaking of 'parcels'. They set out the parcels in the early part of the deed, and later they would refer to 'the said premises,' meaning strictly that which had gone before, and gradually by common acceptance 'premises' became applied, as it generally is now, to houses, land, shops, or whatever it may be, so that the word has come to mean generally real property of one sort or another. There is no doubt that from time to time the word 'premises' has been given different meanings, either extended or more restricted.'

Lord Goddard went on to hold that, in an Act restricting the use of premises for the storage of film, 'Parliament intended to use the widest possible word'. He held that a cave, to the entrance of which a door had been attached, constituted premises within the meaning of the Act.

In Phonographic Performance Ltd v Pontin's Ltd (1967) 3 All ER 736, Cross J held that a considerable area of land, containing chalets capable of accommodating over 1,000 people, a cafe, a shop, a bar, a swimming pool, tennis courts and other structures, could not be regarded as a number of separate and distinct premises, but should be regarded, as a whole, as one 'premises'. He took into account the common purpose, of a sort of seaside hotel, to which all these things were devoted.

It seems to me that the integrated activity carried on over the whole of a continuous area of land does, in the present case, assist in correct characterisation of the whole area as relevantly 'premises'."

"Premise", in the context of land, is defined in the Macquarie Dictionary, Second Edition, as:

" premise ... 2. (pl) a. the property forming the subject of a conveyance, b. a tract of land, ... "

This definition merely links the word "premises" with "property". In the Northwest Iron Co case, Lockhart J said, in relation to provision of the Income Tax Assessment Act 1936 dealing with mining operations:

"A mining property is an area of land on which mining operations are being carried on: FCT v Broken Hill Pty Co Ltd (1967-69) CLR 240 ["the BHP case"] per Kitto J at pp.245 and 245; Barwick CJ, McTiernan and Menzies JJ at 275. A mining property may cover part only of a large tract of land. Several parcels of land over which a person who is working a mine on one of them may form one mining property. It is in each case a question of fact and depends on whether mining operations are being carried on either upon the land or in such circumstances that for practical purposes the relevant land is integral with other land on which such operation exist: BHP case per Kitto J at pp. 245 and 246."

1. In the Tribunal's opinion, his Honour's reference to a "mining property" can be appropriated to the concept of "premises" as referred to in subitems 1(3)(b) and 28(3)(b) of Schedule 1 to Exemptions Act, especially as that provision particularly embraces "mining or prospecting operations", which the Tribunal interprets as "mining and prospecting operations" by reason of the definition in subitem (4) of Item 1: (see also Lee J's reasons in Robe River Mining Co Pty Ltd v FCT 90 ATC 5028 at 5040).
2. The statutory reference to "premises" in relation to the use of general purpose road vehicles is that they be used within premises controlled by the exemption user or in going between adjacent premises used for mining or prospecting operations. In practical and businesslike terms, the use of general purpose road vehicles of the kind in question, (heavy haulage stand alone vehicles and road trains), is to transport ore taken from either an open cut or an underground mine on a mineral lease, to the processing plant, which, in these instances, is located on another mineral lease. Transport in this manner is presumably the most economical way to convey the ore.
3. Evidence indicates that both principals maintain their respective tenements, not presently mined, for exploration, prospecting or future mining. To do this they must meet certain State compliance requirements which involves annual expenditure in respect of each lease. The relative position of a mine and the processing plant is determined by practical and businesslike factors. These two locations can be joined by a continuum of leases, as is the case for WMC's St Ives location.
4. The Tribunal finds that "premises", in the present context, includes adjoining mineral leases being mined, mineral leases held for mining or prospecting operations, exploration or prospecting licences and integral miscellaneous licences and the lease or freehold on which is located the processing plant.
5. Therefore, the St Ives group of leases continuing through WMC leases and licences to the Kambalda nickel processing plant form "premises".
6. However, the route taken from the Mt Burgess mine to the Kalgoorlie nickel smelter is not exclusively over mining tenements but includes main roads so it would not be "within premises" in that sense.
7. Similarly, the relevant premises for the Blair mine and the Widgie Dome group of mines do not extend uninterrupted to the Kambalda nickel plant as these are interspersed by public roads. The route from those mines to the processing plant is not within premises of the principal.
8. On the other hand, both the Breakaway and Zuleika mines contiguous with the Ora Banda processing plant through a succession of mining tenements (which expression includes miscellaneous licences), form two distinct premises of the principal - the Breakaway/Ora Banda premises and the Zuleika/Ora Banda premises.
9. The definition of "controlled", in relation to premises, includes premises either owned or leased. In this context, the tenements are for "mining or prospecting operations", and are in a loose sense "leased". However, for reasons stated below, mining tenements which include public roads, to that extent, despite ss.66, 67 and 91 of the Mining Act 1978 (WA), are not controlled by the lessee.
10. Ore hauled from Mt Burgess traverses parts of the Coolgardie North Road and the Great Eastern Highway; from Blair, parts of the Kalgoorlie/Kambalda Highway; and from Widgie Dome, parts of the Coolgardie/Esperance Highway and Emu Rocks Road. These carriageways are public highways or roads, which, if they occur on a mining tenement, do so only because they were not specifically excised by the State Minister for Minerals and Energy when the lease was granted. Nevertheless, those carriageways remain in the absolute control of either the State of Western Australia or the local shire council. They are not controlled by either of the principals which, as distinct from their private roads on miscellaneous licences, do not maintain them. The carriageways are unrestricted public roads whose maintenance is funded, presumably, from government revenue or shire rates.
11. In relation to the cartage of ore from the mines at Breakaway Dam and Zuleika mines to the Ora Banda processing plant, that usage is over both miscellaneous licence roads and shire roads. The evidence is that the shire roads in question are maintained by the applicant under contract to the relevant principal, as a condition of its being granted the licence. Therefore, both routes are "controlled" by the principal. However, vehicles operated at those locations are required to travel public roads from the applicant's depots at either Kalgoorlie or Kambalda, so to that extent their usage is not within premises controlled by the principal.
12. The Tribunal therefore finds that the principals' mining tenements, with the exclusion of those over public carriageways, are "controlled" by them within the meaning of Item 1 of Schedule 1 to the Exemptions Act.
13. Therefore, the Tribunal finds that the relevant premises of the principals which are controlled by them respectively are:

- the Breakaway Dam and Zuleika mines and that principal's processing plant at Ora Banda are within premises controlled by it;

- the St Ives group of mines and the Kambalda nickel plant are within premises controlled by that respective principal;

1. However, it finds that none of the following is within premises controlled by the respective principal tenement holder, because each route traverses public carriageways:

· Mt Burgess mine to Kalgoorlie nickel smelter;

· Blair mine to Kambalda nickel smelter;

· Widgie Dome area mines to Kambalda; and

· Ora Banda to the applicant's depots at either Kalgoorlie or Kambalda.

1. Those findings, that the vehicles are not exclusively operated within premises controlled by the principals, are not sufficient to conclude the matter. It is sufficient to comply with the requirements of subitems 1(3)(b) and 28(3)(b) if the use of the vehicles in going between controlled premises is adjudged as in going between such premises as are adjacent.
2. As foreshadowed, it is also necessary to consider the matter of "adjacency" in this context.

ARE THE PREMISES MENTIONED ABOVE, WHICH INCLUDE THE ORE PROCESSING PLANTS, "ADJACENT" TO EACH OTHER?

1. This question has two distinct parts for the present purposes:

(1) Are the Mt Burgess, Blair and Widgie Dome area mines adjacent to their respective processing plant (the latter not being within premises controlled by WMC)?

(2) Are all the mines and the relative processing plants, in context, adjacent?

Since "adjacent" is not defined in the statute it takes on its ordinary meaning. It is defined in the Macquarie Dictionary, Second Edition as:

"adjacent, adj. lying near, close, or contiguous; adjoining; neighbouring: a field adjacent to a main road."

1. It is not uncommon to find the word used in revenue statutes in the context of mining operations - for example it is found in the Income Tax Assessment Act 1936, Division 10, Mining and Quarrying, instances of which are in the definition of "housing and welfare" in s122 ("residential accommodation ... at a place adjacent to, ... mining operations; ... health, educational and recreational ... facilities ... at a place adjacent to, ... mining operations); and in s164(7) of the Customs Act 1901, where, in relation to other operations connected with mining operations, paragraph (ca) states "... being operations carried out in, or at a place adjacent to, the area in which the dressing or beneficiation occurs;". "Mining operations" is defined in subsection 164(7) as "... and includes other operations ... that are carried out in, or at a place adjacent to, the area in which the ... mining occurs."
2. The Tribunal was directed, by the applicant, to several authorities in this regard. These are considered below. The applicant submitted, that the object of Items 1, 28 and 36 exemptions is to encourage mining (c.f.ICI Australia and Reynolds Australia). The use of the word "adjacent", in relation to the use of vehicles, is to ensure their use within the mining industry is not exempt from sales tax unless the use is exclusively in mining or prospecting operations. In a mining industry context subitem 28(3)(b)(ii) cannot be discerned entirely arbitrarily. Rather, it was submitted, the sub-item embodies a flexible standard of proximity which is able to take full account of the relevant exemptions. As such, it may extend to premises which are separated by large distances since the Parliament cannot have been ignorant of the fact that, with respect to Item 1, mining economics will itself impose a sensible limit on transport operations between mining and processing sites. The word "adjacent", it was submitted, ought not be construed narrowly in these contexts but beneficially. The submission is that "adjacency" should be determined by reference to the overall proximity, in a relative not absolute sense, of the mines and processing plants. This requires reference to not only spatial factors but also to business and economic considerations. Therefore, all journeys are either within premises (e.g. those relating to the St Ives group of mines and the Ora Banda mines) or involve going between adjacent premises.
3. The Tribunal understands this submission to require it to disregard the absolute distances as evidenced but to find that mining tenements of a particular miner are adjacent if it is economical to haul mined ore to the processing plant, bearing in mind that mines are generally located in remote areas. The Tribunal cannot adopt this as a relevant determinative test. The test of adjacency is geographically spatial rather than one of economics although the latter factor may have an influence in remote areas. If it was economic to transport ore say, from the North West of Western Australia to Perth where it is beneficiated, one could hardly say those two locations are therefore adjacent. Economic determinants are dictated by market forces and it could not be that Parliament had only those matters in mind when formulating the legislation. In this respect it is of interest that the Explanatory Memorandum accompanying the Sales Tax (Exemptions and Classifications) Bill 1992, which became the Exemptions Act, states at paragraph 5.42:

"Adjacent premises: The reference in the existing law to contiguous premises will be changed to adjacent premises.

Reason for change: Adjacent is a more commonly used word. This change will not alter the scope of the current exemption.

1. The relevant item, as it appeared in the predecessor legislation, was amended by the Sales Tax Laws Amendment Bill (No.3) 1991 which became the Sales Tax Amendment Act (No.2) of 1991 amending the then current 1935 legislation. The Explanatory Memorandum had this to say about "contiguous premises", the term then used but replaced in the 1992 legislation as mentioned above:

"As discussed earlier, general purpose road vehicles are eligible for exemption within the main categories of eligible business goods where used exclusively within certain premises.

However, in some cases, such vehicles may be used exclusively within, or between, adjacent or adjoining production premises which may, for example, be separated only by a public road. ...

Clause 14 allows exemption for general purpose road vehicles that are for use exclusively both within and in going between "contiguous" areas.

'Contiguous premises' is an established sales tax concept. Other exemption items in which the term 'contiguous' occurs include the aids to manufacture definition[2], which allows exemption for storage of raw materials and work-in-progress in the manufacturing premises 'or premises contiguous to any such premises'.

The term 'contiguous' has been subject of judicial interpretation in other legislation, and consistent with the existing sales tax law, the term will not be defined in this Bill.

The term covers travel between adjacent or abutting premises which are owned, leased or controlled by the goods producer concerned. ...

Remote Areas

In remote areas, premises separated by short distances may also be treated as being contiguous. For example, mining leases separated by 5 kilometres of desert in the remote outback would be considered to be contiguous premises. Travel exclusively within and between the two leases would qualify vehicles for exemption. However, the two leases would not be considered to be contiguous if they were separated by a township."

1. The predecessor statutory term "contiguous premises" was replaced by "adjacent premises" in the legislation now being considered. However, it is useful to consider what the courts have said in relation the notion of contiguous or the scope of the term "adjacent premises".
2. The issue in Robe River Mining Co Pty Ltd (supra) was not adjacency but, in part, whether the constituent parts of the railway used to transport ore over 190 kilometres from the mine site to the crushing and blending facility were exempt from sales tax as machinery etc for use in carrying out mining operations or in the treatment of the products of those operations. The railway was constructed on leased areas which were contiguous and stretched from the mine to the port destination. It was held that the transportation was within premises. The Tribunal can draw no relevant conclusion from this decision other than, in remote area mining, a distance of 190 kilometres across contiguous leases, to transport ore for processing, does not detract from the character of the operation as integral to mining and treatment of the ore.
3. Residential accommodation provided by the taxpayer, BHP Minerals Limited, in the central highlands of Queensland at Capella and Emerald, being respectively about 50 kilometres and 60 kilometres from the mine site has been held, for the purpose of ss.122 and 122A of the Income Tax Assessment Act 1936, to be adjacent to the site of the mine within the definition of "housing and welfare". In a majority decision of the Federal Court in FCT v BHP Minerals Ltd 83 ATC 4407, Toohey and Lockhart JJ decided that the word "adjacent" (in the context of the Income Tax legislation) should be interpreted broadly. In s122, it is used in the sense of "near" or "close". It does not require contiguity or abutment nor does it necessarily require very close proximity. It is sufficient that the residential accommodation is near or close to the mine site; (ref: CCH headnote at 4407-8). In the course of their Honours joint judgment they cited with approval the following passage from the Judicial Committee of the Privy Council in Mayor of Wellington v Mayor of Lower Hutt [1904] AC 773 at p.775-776, a case concerning the matter of financial contribution by adjacent districts in relation to the construction of bridges by municipal councils :

"'Adjacent' is not a word to which a precise and uniform meaning is attached by ordinary usage. It is not confined to places adjoining, and it includes places close to or near. What degree of proximity would justify the application of the word is entirely a question of circumstances ..."

1. Toohey and Lockhart JJ then proceeded to acknowledge that where a word, such as "adjacent", is not defined in the statute the first task is to consider the ordinary meaning and "then see if that meaning needs to be displaced or qualified in some way by the context in which it appears" (p.4413). They reflected on synonyms such as "neighbouring", "adjoining" and "contiguous" and observed that each of these suggests a degree of connection whereas "adjacent" is a word capable of a broad connotation.
2. In two customs duty cases decided together by this Tribunal, Re: Westrail and Collector of Customs [1994] AATA 177; (1994) 36 ALD 158 and Re: Alcoa of Australia Ltd and Collector of Customs (AAT 7764) the word "adjacent" was considered in relation to whether certain activities remote from the beneficiating process for alumina were connected to and adjacent to the mining operations. The cases resulted in a finding that the operations were connected to the mining and beneficiation of the ore and were adjacent. In the Alcoa case it was decided that the conveyor belt system used to transport the crushed ore, which extended about 14 kilometres from the point of mining to the processing plant, was connected with the mining and processing operations at a place adjacent to the area in which mining occurred. In the Westrail case it was decided that the dedicated railway line from the port to the refinery, used to transport caustic soda, (an important ingredient in the processing operation), from a wharf more than 40 kilometres away to the processing plant, was connected with and adjacent to mining operations. Adjacency in those cases was found, therefore, by reason of an integrated activity.
3. That is not the case here. Paragraphs (iv), (v), (vi) and (viii) of the findings of fact above indicate that a considerable part of each journey, other than from the St Ives group of mines to the Kambalda nickel smelter, is over public roads. The distances travelled over public roads predicates that the various mine sites and processing plants are not adjacent. These mines are all in a district containing main public roads. The townships of Kalgoorlie and Kambalda, spatially, lie between Ora Banda and Mt Burgess on the one hand and Blair, the Widgie Dome mines and the St Ives mines on the other. Also, the townsite of Widgiemooltha lies between the Widgie Dome the St Ives group of tenements and the township of Ora Banda is in close proximity to Newcrest's processing plant there.
4. Therefore, at best, only some of the use of the vehicles in question is within premises controlled by the principals or in going between adjacent premises controlled by the principals. This is insufficient to meet the requirements of subitems 1(3)(b) and 28(3)(b) and therefore Item 36 such that the parts in question are exempt from sales tax.

(1) The applicant's use of the relevant general purpose road vehicles is not exclusively for mining and prospecting operations carried on by the principals. Therefore, the requirements of Item 36 of Schedule 1 to the Exemptions Act are not met and the parts in question are not exempt from sales tax.

(2) In any event, the use of the relevant general purpose road vehicles, insofar as that use relates to contracts for the principals, is neither within premises controlled by those principals nor in going between adjacent premises.

(3) In finding that the various mine sites are not all adjacent to each other nor all adjacent to their respective processing plants, the Tribunal simply notes that, if the evidence had been that dedicated vehicles were used exclusively hauling ore from the St Ives group of mines to the Kambalda nickel smelter, then such vehicles (and hence parts for their repair) would qualify under Item 36 of Schedule 1 to the Exemptions Act, because the St Ives group of mines and the Kambalda nickel smelter are within premises controlled by the respective principal.

88. For the above reasons the objection decisions under review are affirmed.

I certify that this and the 34 preceding pages are a true copy of the decision and reasons for decision herein of Deputy President T E Barnett, Associate Professor S D Hotop (Senior Member), Associate Professor R D Fayle (Senior Member)

Signed: .....................................................................................

Solicitor for the Respondent Australian Government Solicitor

[1] These are references to Exhibits A1 and A7. The prefix "M" and "ML" refer to mineral leases, the latter signifying that it is held under a State Agreement Act. The prefix "P" indicates a prospecting licence, "E" an exploration licence and "L" a miscellaneous licence.

[1] Besides Ex. A5, three schedules were tendered,(Ex. R1) also prepared by the applicant, depicting the time each of the three vehicles spent on mineral leases, exploration or prospecting licences or miscellaneous licence as compared with time spent on public roads. The schedules show the time, in hours and as a percentage of the total, for each vehicle by month for the calendar years 1991 to 1994 inclusively.

3 These distance percentages have been calculated from the information provided in Ex. A7. The percentages are based on the proportion of the journey on public roads not traversing mineral leases belonging to Newcrest and WMC respectively.

4 However, clearly, whether the conditions of subitem 36(3)(a) are met is contentious and is discussed later in these reasons in relation to the evidence.

5 It is assumed, for argument&#8[2]s sake, that the requirement relating to transport on premises controlled by the principals is met.

6 It is noted that the amended provisions of the 199[2] Exemptions Act are embodied in Sub-Chapter 1.2: Manufacturing and industrial etc, in particular, for the present purposes, Item 18, subitem (3)(b) (supra).