MacRobertson Miller Airline Services v Commissioner of State Taxation (WA) [1975] HCA 55

High Court of Australia Barwick C.J. Stephen and Jacobs JJ. MacRobertson Miller Airline Services v Commissioner of State Taxation (WA) [1975] HCA 55

ORDER Appeal allowed with costs. Order of the Supreme Court of Western Australia set aside and in lieu thereof order that the questions asked in the case stated be answered as follows:

(a) Whether the ticket is an agreement or memorandum of agreement?

Answer: No.

(b) Whether the ticket is chargeable with duty as assessed by the Commissioner?

Answer: No.

(c) If not, with what duty (if any) is the ticket chargeable under the Act?

Answer: None.

And that the appeal to the Supreme Court be allowed, the respondent to pay the appellant's costs of the appeal to be taxed with a certificate for second counsel.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 10 Barwick C.J.

The Stamp Act, 1921-1971 W.A. imposes stamp duty upon the instruments described in its Second Schedule, the duty being payable by the person or persons named in the appropriate margin of the schedule. The presently relevant item of the schedule is "agreement or any memorandum of an agreement under hand only " the duty being payable by "the parties thereto".

The Supreme Court (Jones J.) has found upon a case stated for the opinion of the Court that an airline ticket issued by the appellant to an intending passenger, was dutiable as "a memorandum of a completed agreement".

The appellant is the airline operator which issued the ticket. Its submission is that the ticket was not itself an agreement or a memorandum of an agreement within the scope of the relevant item in the Second Schedule of the Stamp Act. Its principal ground is that to proffer the ticket is to make an offer which is verbally accepted by its recipient. In such a situation it is claimed that cases such as Drant v. Brown [18] ; Hudspeth v. Yarnold [1] , and Beeching v. Westbrook [2] are authority for the proposition that the ticket is not dutiable. The respondent Commissioner disputes these submissions and supports the reasoning of the learned primary judge.