Ocean Steamship Co Ltd v Federal Commissioner of Taxation [1918] HCA 62; (1918) 25 CLR 412 (14 October 1918)

HIGH COURT OF AUSTRALIA

The Ocean Steamship Company Limited Appellant; and The Federal Commissioner of Taxation Respondent.

H C of A

On appeal from the Supreme Court of Western Australia.

14 October 1918

Barton, Gavan Duffy and Rich JJ.

Draper K.C. (with him Boultbee), for the appellant Company.

Pilkington K.C. (with him Thomas), for the respondent.

Draper K.C., in reply.

The following judgments were read:—

Barton J.

It must be assumed that the Legislature in framing this section (Income Tax Assessment Act 1915-1916, sec. 22) had in mind the ordinary maritime law. See Duranty v. Hart, where Lord Kingsdown[1], for the Judicial Committee, pointed out that, so far from a master being bound to tranship his cargo, "his first duty was to carry his cargo to its destination in the same bottom, unless under the greatest difficulty." And the section in its phraseology seems to keep that principle in view. The appellant Company was carrying as shipowner "goods shipped in Australia," and was under a duty to make a return of the "full amount payable to him ... in respect of the carriage" of the goods. The passage just quoted follows the ordinary definition of freight, and means the freight payable to the shipowner in or out of Australia on the goods. It was contended that the words "owner of any ship" should be read so that the singular includes the plural. But that construction is not to be adopted if the contrary intention appears (see Acts Interpretation Act 1901, sec. 23); and the contrary intention does, I think, appear upon reference to sub-secs. 3, 4 and 5. The words "the ship" there employed clearly refer to the ship mentioned in the first sub-section, that is to say, the particular ship which carries the goods from Australia. When carriage by that ship is over, it seems to me that the section applies no further. If the Legislature intended to include "on-carriage" after transhipment even on a vessel of the same owner, it would probably have said so; but at least the section cannot be construed as if it had said so. If the first sub-section, taken by itself, led to any ambiguity, which I doubt, no such difficulty appears when the whole section is read together. I think, therefore, that it is only the freight to Singapore in respect of which the assessment can be made.

Gavan Duffy J.

In my opinion the facts of this case do not bring it within sec. 22, which refers only to freight earned on vessels actually shipping goods in Australia. I agree with the proposed order.

Rich J.

I also agree. The section under consideration was not designed to, and does not, in my opinion, cover the case of transhipment. It only contemplates the contract of carriage being performed by the same bottom—the ship which leaves Australia.

Appeal allowed. Judgment appealed from discharged with costs. Appellant's objection upheld, and assessment reduced by five per cent. on £20,158 accordingly. Respondent to pay costs of appeal.

Solicitors for the appellant, Parker & Parker.

Solicitor for the respondent, Gordon H. Castle, Crown Solicitor for the Commonwealth, by Moss, Dwyer, Unmack & Thomas.

[1] 2 Moo. P.C.C. (N.S.), at p. 319.