Western Australian Turf Club v Commissioner of Taxation (Cth) [1978] HCA 13

High Court of Australia Barwick C.J. Stephen, Jacobs, Murphy and Aickin JJ. Western Australian Turf Club v Commissioner of Taxation (Cth) [1978] HCA 13

ORDER Appeal dismissed with costs.

Cur. adv. vult.

1978, April 26 Barwick C.J.

In this appeal I have had the advantage of reading the reasons for judgment prepared by my brother Stephen. I agree with his conclusion that the appellant is not "a public authority constituted under any Act or State Act" within the meaning and operation of s. 23 (d) of the Income Tax Assessment Act 1936, as amended ("the Act").

Apart from its function of licensing horse races under the Racing Restriction Act, 1917 W.A. ("the Racing Restriction Act "), the appellant clearly, in my opinion, had no function of a public or governmental nature. My brother Stephen's analysis of the powers and functions of the appellant, apart from the licensing of horse-races, amply demonstrates that conclusion. The case thus resolves itself into one in which an unincorporated body operating for the benefit of its members, though with some obligation to admit the public to its racecourses, has been given by statute the function of granting licences for the holding of race meetings, a function unproductive of revenue or profit to the unincorporated body.

In considering whether this function may be considered to be public in its nature, I am content to assume that an unincorporated body may be constituted in a relevant sense a public authority "under" a statute, without having derived its existence from any statutory source. Of that proposition, as at present advised, I am not wholly satisfied. The proposition really rests upon expressions in the reasons for judgment in Renmark Hotel Inc. v. Federal Commissioner of Taxation [1] and upon the significance—to my mind, an unusual significance—given to the word "constituted" in cases such as In re East and West India Dock Co. [2] , and Swain v. Southern Railway Co. [3] . But, assuming the validity of the proposition for the purposes of resolving this appeal, it must indeed be rare that an unincorporated body becomes a public authority by reason of statutory powers or functions given to it. Rich J.'s remark that such a result was "conceivable" rather suggests the rarity of the occasion.