High Court of Australia GIBBS CJ Wilson, Brennan, Deane and DAWSON JJ Downland Publications Ltd v Deputy Commissioner of Taxation Gibbs CJ This appeal falls within such a short compass that it is possible to dispose of it immediately. The question for decision is whether the appellant is liable to pay sales tax in respect of sales of the publication Best Bets during the months of November and December 1979 and January 1980. That depends on whether the publication is covered by Item 51(1) or Item 54 of the First Schedule to the Sales Tax (Exemptions and Classifications) Act 1935 (Cth) as amended. If it is so covered, s 5(1) of that Act has the effect of exempting sales of the publication from sales tax. Best Bets is a weekly publication whose nature is described by the sub-title which appears on some of the copies as "the original pocket-size form guide". The nature of the publication and the manner of its distribution are fully described in the judgments given in the Supreme Court and it is unnecessary to repeat them in full. It should, however, be said that the publication contained a full list of each of the main horse race meetings to be conducted in Melbourne, Sydney, Brisbane and Adelaide on the Saturday following the Thursday on which it appeared and gave details of the times of the races and of the horses running, including the history of the performance of those horses in past races. It did not, however, include the name of the rider or owner or particulars of the owner's colours. The publication also gave information as to some trotting and greyhound races and included predictions and prophecies as to the possible results of various races. Item 51(1) commences with the following words: "Books, pamphlets, leaflets, periodicals, magazines and printed music, but not including (unless covered by any other item or sub-item in this Schedule) —" . Then follow a number of paragraphs, including para (b) to which I shall later refer. There is no doubt that Best Bets is a periodical within the meaning of Item 51. That item concludes with the words, "For the purposes of this item, 'periodicals' means any publications issued at regular intervals not exceeding three months". Best Bets is a publication issued at regular weekly intervals. The question then is whether the publication comes within the excepting words of para (b) which are as follows: "… programmes, schedules, syllabuses, guides or souvenirs of entertainments, amusements, exhibitions, competitions or sporting events." Even if Best Bets is not within Item 51, it will be exempt from sales tax if it falls within Item 54 which simply refers to "Newspapers". It was held by Gobbo J, and on appeal by a majority of the Full Court of the Supreme Court of Victoria, that Best Bets is a guide of sporting events within para (b) of Item 51(1) and therefore excepted from the exempting words of that item and that it is not a newspaper. Starke J, who dissented from the judgment of the majority of the Full Court, held that the publication is a newspaper. On behalf of the appellant it was first submitted before us that Best Bets does not come within the words of para (b). It was said that those words describe a class of publications issued in connection with, and closely connected with, the activities (such as sporting events) to which they relate and that the use of the preposition "of" indicates that there must be a close or direct connection between the publication and the sporting event to which it refers. In the context of para (b) the word "of" is not entirely appropriate when used in relation to "guides", although it is not inappropriate in its application to the other words of the paragraph, including "programmes". However, the relevant words of para (b) can only be understood as referring to guides to sporting events. The paragraph contains nothing to support the view that the publication must be an official one, in the sense that it is produced by or on behalf of those who organise the sporting event. It is sufficient if the publication is one of those described in the paragraph, for example if it is a programme or guide, and if it is prepared for use at or in connection with the sporting event or events to which it relates. Best Bets, in many if not most cases, is not used at the sporting events, viz the races, to which it refers. It could be used by those watching or listening to the races on television or radio but its main purpose seems to be to serve those persons throughout Australia who place bets on those events, whether at a TAB or in other ways. It contains information about the events which is intended to assist those who intend to bet on those events. In that respect it provides a guide to the races that will occur and to their possible outcome. I agree with the conclusion reached by Gobbo J and the majority of the Full Court — a conclusion based, as it must be, in part on impression — that the publication is a guide of sporting events within para (b) and therefore not exempt under Item51. Further, in my opinion, Best Bets answers the description of a programme of sporting events. It cannot be doubted that it contains the programmes both of the meetings and of the events to which it relates, and the fact that it contains other material as well does not mean that it ceases to answer the description, particularly when the other material is closely related to the events mentioned in the programmes. Is it then a newspaper within Item 54? In answering this question it is right to look at its form, its contents and its use, as Hood J pointed out in In Re Bradshaw's Guide; Ex parte Stillwell (1903) 29 VLR 415 at 418. In Rotary Offset Press Pty Ltd v DCT (Cth) (1972) 3 ATR 319 at 320; 46 ALJR 609 Stephen J said, "It seems to me that the test properly is one of popular usage and … that the matter is entirely a question of fact to be decided upon an inspection of the document guided by common knowledge". Notwithstanding the forceful dissenting judgment of Starke J, it seems to me that in popular usage Best Bets would not be called a newspaper. Its form is not that in which other newspapers appear in Australia. It contains some news of past events, not always recent, but does so only for the purpose of providing a guide to the performance of the horses which took part in the past events and are expected to take part in future events. The circumstances that it contains comments and is restricted to material of interest only to persons interested in racing and betting do not in themselves prevent it from being a newspaper, but the fact that all the contents are included either to provide a programme of meetings or events or for the purpose of assisting the reader to predict the winner of a race is relevant to the question whether the publication is a newspaper. The publication is intended to be used as a betting guide. All these circumstances make it impossible, in my opinion, to disagree with the conclusion reached in the Supreme Court that Best Bets is not a newspaper. For these reasons I would dismiss the appeal. Wilson J I agree with the reasons of the Chief Justice and would dismiss the appeal. Brennan J I agree and I have nothing to add. Deane J I also agree with the judgment of the Chief Justice. Dawson J I also agree.