Taxation, Commissioner of (Cth) v Bayly [1952] HCA 31

High Court of Australia Williams J. Taxation, Commissioner of (Cth) v Bayly [1952] HCA 31

ORDER Judgment for the plaintiff for £870 13s. 0d. with costs.

Cur. adv. vult.

J Williams delivered the following written judgment:—

June 23 Williams J

This is an action in which the Deputy Commissioner of Taxation for the State of New South Wales of the Commonwealth of Australia is suing the defendant who is the secretary of the Wellington Combined Race Club to recover thirteen separate amounts totalling £1,018 17s. 5d. alleged to be due as entertainments tax in respect of thirteen race meetings held by the club on certain dates between 13th October 1943 and 22nd September 1948. The defendant is sued as the proprietor of these entertainments. Under the Entertainments Tax Assessment Act 1942-1949, s. 4, "proprietor" includes, in relation to any entertainment, any person responsible for the management thereof. No objection has been taken to the form of the action which is in effect an action against the club.

The action has now been settled with respect to the amounts sued for in respect of the meetings held on 21st and 22nd September 1948 on the basis that the defendant will pay the amount of £99 8s. 1d. claimed in respect of 21st September and the plaintiff will waive his claim to the amount of £148 4s. 5d. claimed in respect of 22nd September. It is therefore only necessary to deal with the first eleven amounts. They fall into three categories—(1) those claimed in respect of the meetings held on 13th October 1943, 10th August and 16th November 1946; (2) those claimed in respect of the meetings held on 1st, 2nd and 21st May; 12th July; 16th August; and 15th November 1947; and (3) those claimed in respect of the meetings held on 29th March 1947; and 21st February 1948.

The action has been tried without pleadings. If there had been pleadings it would have been apparent that the real issue between the parties was whether the defendant was entitled to a refund of tax under the provisions of s. 18 of the Act. This section provides so far as material that where the commissioner is satisfied that the whole of the net proceeds of an entertainment are or will be devoted to public, patriotic, philanthropic, religious, or charitable purposes and that the whole of the expenses of the entertainment do not exceed 50 per cent of the receipts, he shall repay to the proprietor the amount of the entertainments tax in respect of the entertainment. The section contemplates that the tax has already been paid and obliges the commissioner to refund the tax in the circumstances mentioned. This is presumably because the tax is usually paid in advance by stamping the admission tickets but the Act also provides machinery for the proprietor making returns of the admissions and paying the tax after the entertainment and this was the course adopted in the present case.