War Service Homes Commissioner v Collector of Imposts (Vic) [1920] HCA 10; (1920) 27 CLR 334 (5 March 1920)

HIGH COURT OF AUSTRALIA

The War Service Homes Commissioner against The Collector of Imposts for Victoria.

H C of A

On removal from the Supreme Court of Victoria.

5 March 1920

Knox C.J., Isaacs, Higgins, Gavan Duffy, Powers, Rich and Starke JJ.

Latham, for the War Service Homes Commissioner.

A. H. Davis, for the Collector of Imposts,

Knox C.J.

The only question for decision in this case is whether the transfer by Philpott by direction of Williams to the Commissioner is chargeable with any duty, and that has been narrowed down by the statement of Mr. Davis to the question whether the transfer is chargeable with duty in respect of the sale from Philpott to Williams. Mr. Davis does not claim that it is chargeable with any further duty. In my opinion the words of sub-sec. 3 of sec. 3 of the Stamps Act 1918 are clearly applicable and provide for duty to be charged on this transfer in respect of that sale. The matter comes before this Court as one involving a question of constitutional powers, the allegation being that the effect of the Stamps Act, if valid, is to impose a charge upon the Commonwealth or upon an instrumentality of the Commonwealth. I do not think that that question really arises. The plain fact of the matter is that the Commissioner has omitted to get from Williams the amount of duty chargeable in respect of this sale, which he might have insisted on getting from him as a condition of the transaction with him. The liability to pay the amount of duty payable on the sale by Philpott to Williams is by the terms of the Act imposed on Williams, and, if the duty has been paid out of the public funds, that payment was occasioned by the omission of the Commissioner to see that Williams paid the amount according to the ordinary course of conveyancing practice, and is not referable to the provisions of the Act of Parliament. I am, therefore, of opinion that the first question submitted by the special case should be answered: Yes, on the sale from Philpott to Williams.

Isaacs J.

As I understand, the matter is presented by Mr. Latham on behalf of the Commonwealth in two ways. First, he says that if this were a transfer to any ordinary individual the document would not be taxable. I do not think I need to say more than that I agree with what has fallen from the Chief Justice on that point. Sub-sec. 3, introduced by the amending Act of 1918, is an answer to it. That is not only made abundantly clear, I think, by the terms of that sub-section itself, but any possible argument throwing doubt upon its meaning is met by the unmistakable terms of sub-sec. 5. Then Mr. Latham, as I understand, took a second point: that this is not a transfer to an ordinary individual but to a Commonwealth official, and that, in effect, this transfer ought not to be regarded as taxable in the hands of the Commonwealth official, whatever it might be in the case of an ordinary individual. As to that I can only say that the case of The Commonwealth v. New South Wales[1] more than covers that point. Therefore I agree that the question should be answered as stated by the Chief Justice.

Higgins J.

I concur.

Gavan Duffy J.

I agree with what has been said by my brother Isaacs.

Powers J.

I agree.

Rich J.

The Commonwealth had it in its power to recover the amount of the duty from Williams, but omitted to do so. Having failed to take this ordinary conveyancing precaution, and having taken a transfer by direction of Williams, the case falls, as the Chief Justice has pointed out, under sec. 3 (3) of the Stamps Act 1918. With regard to the second argument submitted by Mr. Latham, I agree with what has been said by my brother Isaacs.

Starke J.

I agree.

Question 1 answered: Yes, on the sale from Philpott to Williams. Costs to be paid by Collector of Imposts.

Solicitor for the War Service Homes Commissioner, Gordon H. Castle, Crown Solicitor for the Commonwealth.

Solicitor for the Collector of Imposts, E. J. D. Guinness, Crown Solicitor for the State of Victoria.

[1] [1918] HCA 44; 25 C.L.R., 325.