Commissioner for Stamp Duty for the State of Queensland v A. Raptis & Sons Holdings Pty Ltd B44/1997 [1998] HCATrans 98 (17 April 1998)

Office of the Registry

Brisbane No B44 of 1997

B e t w e e n -

COMMISSIONER OF STAMP DUTIES FOR THE STATE OF QUEENSLAND

Applicant

and

A.RAPTIS & SONS HOLDINGS PTY LTD

Respondent

Application for special leave to appeal

BRENNAN CJ

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 17 APRIL 1998, AT 11.44 AM

Copyright in the High Court of Australia

MR J.D. BATCH, SC: I appear for the applicant, your Honours, with MS E.M. O'REILLY. (instructed by the Crown Solicitor for the State of Queensland)

MR D.G. RUSSELL, QC: I appear for the respondent, with MR K.F. HOLYOAK. (instructed by Clayton Utz)

BRENNAN CJ: Yes, Mr Batch.

MR BATCH: Thank you, your Honour. Your Honour, in the last two days we have sent in to the Registry here in the Brisbane courthouse two further documents. On Wednesday we sent in a proposed amended application together with a proposed amended draft notice of appeal and a proposed amended summary of argument, and yesterday we sent in a proposed supplementary submission together with, on the first occasion, one case, Newcastle City Council v GIO, and yesterday a bundle of cases on the purposive approach to construction of statutes.

BRENNAN CJ: What document are we dealing with then, the proposed application - the amended applicant's summary of argument. Is that right?

MR BATCH: Yes, both documents of the last two days, if your Honours please. The formal document is the proposed amended application et cetera but the argument I wish to advance is that that was sent in yesterday headed "Supplementary Submissions".

BRENNAN CJ: You know the Court does try to look at these documents beforehand, Mr Batch. It is not satisfactory to get them at the last moment.

MR BATCH: No, I must apologise although may I say this, that what we have tried to do is to cut down any excess matters or matters that may not have been fairly arguable and just confine it to one narrow point.

BRENNAN CJ: Very well.

MR BATCH: The matter that your Honours concern a certain - do your Honours wish to read perhaps the supplementary submissions first.

BRENNAN CJ: Yes. Before we get into the question of purposive construction and so forth, would it not be just as well to have a look at the schedule itself.

MR BATCH: Yes, certainly, your Honour. Your Honours, I believe, have the blue statute reprint No 2. It is at page 306 of that pamphlet copy and your Honours will see that at the commencement of the head of charge "Conveyance or Transfer" there are heads of charge or subheads of charge (1)(a) and (1)(c). (1)(a) comprises:

property consisting solely of a mortgage -

et cetera, and (1)(c):

of property consisting solely of a security which is ancillary -

et cetera. The present application is wholly concerned with the word "solely" appearing in each of (1)(a) and (1)(c).

BRENNAN CJ: That is descriptive of the property and not of the instrument?

MR BATCH: It is descriptive of the instrument in so far as it says that the instrument is to consist solely of that property.

BRENNAN CJ: No it does not. It says property:

solely of a mortgage.

MR BATCH: Yes or -

of an interest in a mortgage secured on land -

and it therefore describes the conveyance or transfer. It is a conveyance or transfer of property that consists solely of those things.

BRENNAN CJ: That is right.

MR BATCH: I am at cross-purposes then, your Honour.

BRENNAN CJ: I think you are because your proposition is that the instrument must contain solely a conveyance or transfer of a mortgage.

MR BATCH: Yes, sorry. I am still at cross-purposes, your Honour. The instrument must contain a conveyance or transfer of property which consists solely of a mortgage or interest, et cetera.

BRENNAN CJ: Now this instrument, did it contain a conveyance or transfer of property which was a mortgage?

MR BATCH: Yes, several of them.

BRENNAN CJ: Several of them. Do you take any point on the fact that there was more than one mortgage?

MR BATCH: No.

BRENNAN CJ: So it consists of property solely of a mortgage.

MR BATCH: Yes. It also contained property that consisted solely of ancillary securities, if I can paraphrase (1)(c) that way.

BRENNAN CJ: So the instrument answered the description of (1)(a) and (1)(c)?

MR BATCH: If one reads (1)(a) and (1)(c) together.

BRENNAN CJ: Where is the difficulty.

MR BATCH: The difficulty is just that point your Honour has isolated. In my submission (1)(a) and (1)(c) are separate concessional heads of charge. (1)(a) must be read fairly on its natural grammatical meaning and (1)(c) must be read separately on its natural grammatical meaning and there was no justification in the Court of Appeal below for reading (1)(a) and (1)(c) as being joined by really the conjunction "or" which is absent there. In the joint judgment below the court said although the natural grammatical meaning favoured the Commissioner's argument, nevertheless, because of absurdity et cetera - I am paraphrasing that, of course - one should read (1)(a) and (1)(c) as if they were joined and considered together.

BRENNAN CJ: But what is the natural grammatical meaning if "solely" is descriptive of the property?

MR BATCH: It certainly does, your Honour, but, in my submission, it also relates back and describes the property and therefore the instrument. It does not only describe - - -

HAYNE J: But how can that be in the face of provisions such as section 15 of the Act that instruments containing, in effect, several distinct matters are to be charged separately? Why cannot one instrument contain matters subject to charge under (1)(a) and matters subject to charge under (1)(c)?

MR BATCH: Because, your Honour Justice Hayne, this is a special and particular concession that was brought in from the early 1980s and amended several times, as I hope to show your Honours, and it would override the general concept in section 15 which, I think I am correct in saying, has been there since the Act was enacted in 1894.

BRENNAN CJ: With the exception of section 15 as confined. There has to be an express provision to the contrary. Where is the express provision?

MR BATCH: In my submission, because of the way (1)(a) and (1)(c) are drafted, they are express, your Honour.

BRENNAN CJ: They are expressed but they are not expressed as an exception to 15, are they?

MR BATCH: Sorry they do not say, "This is an exception to section 15".

BRENNAN CJ: Well then how does section 15 come to be excluded?

MR BATCH: Your Honour, in my submission, the words at the start of section 15 except where it says, "express provision to the contrary is made" do not mean that the later contrary provision must mention by number the number of section 15. If there is an express provision elsewhere in the Act and especially, in my submission, a very specific, narrowly drafted clause decades later, that is an express provision within the meaning of section 15.

May I take your Honours to the history of the legislation to show your Honours the importance of the operation of the word "solely" in the way this provision has been amended from time to time by the Parliament. In the bundle of papers that we sent in some time ago, may I take the Court first to document No 5 which is a copy of a Stamp Act Amendment Act 1401 No 91 of 1981 and at the copy your Honours of page 978 of the amending Act near the top of the page the Court will see the first occasion on which the predecessor of what is now (1)(a) was introduced. The point I wish to make firstly is that this was an introduced concession for $5.00 only:

For each mortgage to which the conveyance or transfer relates -

which was a concession to the otherwise applicable ad valorem conveyance duty. Further, your Honours, the particular point is that the word "solely" was not part of the original (1) in 1981. This is a point which was not brought home to the Court of Appeal. In fact, I do not think it was, with respect, known at the time, given the way the matter was argued and the course of proceedings.

Can I take the Court then next to the next relevant amendment which is document No 6 which is the Amendment Act No 17 of 1984 and the Parliament then omitted the existing paragraph (1) and put in (1)(a) and a new (1)(b) and the Court will see that in the first line of (1)(a) the word "solely" was introduced for the first time into the provision. That, with respect, is an important point in our case that it was the absolutely clear intention of the Parliament, in our submission, that the word "solely" be given effect to because when previous (1) was re-enacted here as (1)(a) the word "solely" was introduced at a time when a new (1)(b) was being introduced.

Could I go then next, your Honours, to document 8 and that is an Amendment Act of 1985, No 90. At that time the Parliament introduced (1)(c) and from its introduction the word "solely" always appeared in the first line of (1)(c) so, in our submission, the Parliament has continued its deliberate expression of intention from 1984 when in 1985 it introduced (1)(c) and brought in a - discontinued the requirement of being "solely" of property et cetera.

BRENNAN CJ: Where do we find this?

MR BATCH: That is in document No 8 at page 1401.

HAYNE J: I think your Honour and I are working off a different document 8s.

BRENNAN CJ: Yes, it is document 9 in ours.

MR BATCH: I am sorry, it should - - -

BRENNAN CJ: .

MR BATCH: I withdraw that. It is the first sheet of document 9, I am sorry, with the tab. Page 1401 in the top right-hand corner of that photocopy. (1)(c) comes in and it has got the word "solely". It is continuing, in our submission, the Parliament's intention from 1984 when "solely" was put into (1)(a). At that point then, your Honours, there are (1)(a) which says "solely"; (1)(b) that does not say anything about "solely" and deals with other matters, trustee, et cetera and then (1)(c) which also says "solely" so that, in our submission, that Parliament has said (1)(a) has to be a "solely" matter, (1)(b) is not "solely" at all, it is general compared to (1)(a) and (c) and (1)(c) is "solely". That, in our opinion, is a clear expression of intention that the three items have to be dealt with separately because two are "solely" and one is not.

Just to complete that, your Honours, in 1990 in the Amendment Act No 40 of that year, a copy of which is document 11, at page 844 of that Act the Parliament simply omitted (1)(b) leaving the provision in its present form as the Court has already seen in the reprint so that the general provision (1)(b) goes out but the Parliament does not change its deliberate introductions of the word "solely" into (1)(a) and (1)(c).

The Court was made aware of the 1985 amendment, of course, and it relied on certain Hansard. In our submission, the Hansard though really is actually silent on this point of "solely".

BRENNAN CJ: What you have shown us really reinforces the proposition I was putting to you before. This deals with conveyances or transfers of particular kinds of property, to wit that which is solely mortgage and that which is solely security.

MR BATCH: Ancillary security.

BRENNAN CJ: Ancillary security. So if you have a mortgage and A is the mortgagor and chooses to transfer or convey it to B, then the transfer or conveyance falls within this exemption. The same, mutatis mutandis, with respect to paragraph (c). The proposition for which you are contending is that if they do this in relation to those two pieces of property by one instrument then it loses the exemption.

MR BATCH: Yes, that is my contention, yes.

BRENNAN CJ: The language simply does not support it. It is simply descriptive of the property which must be the subject of the conveyance or transfer. So long as the property is "solely" a mortgage and so long as the property is "solely" an ancillary security, if you transfer them you are entitled to this benefit. The instrument which transfers them is entitled to this benefit and if it has the two characters then 15 comes into play and each of them is entitled to this benefit.

MR BATCH: May I take you to the judgment below, your Honours, on this - - -

BRENNAN CJ: That is because the judgment below seems to half accept your proposition.

MR BATCH: That is why I wanted to go to it. Quite.

BRENNAN CJ: Yes, I can understand it but it is not going to help you much, is it?

MR BATCH: Well I was looking there for help.

BRENNAN CJ: I can understand that too but you do not get it, I do not think.

MR BATCH: Your Honour, I really cannot take that point any further.

BRENNAN CJ: I do not think you can.

MR BATCH: I have said it several times. I do not want to say it a third or fourth time.

BRENNAN CJ: I think you have gone about as far as you can go.

MR BATCH: I have no further submissions then, your Honours.

BRENNAN CJ: I do not think we need to call on you, Mr Russell.

The decision of the Court of Appeal was correct. Accordingly special leave is refused.

AT 12.01 PM THE MATTER WAS CONCLUDED