Southern Cross Community Healthcare Pty Ltd v Chief Commissioner of State Revenue [2021] NSWSC 1317

Supreme Court New South Wales

Medium Neutral Citation: Southern Cross Community Healthcare Pty Ltd v Chief Commissioner of State Revenue [2021] NSWSC 1317 Hearing dates: 10, 11, 12, 13, 27, 31 May, 21 June 2021 (Submissions 3 September 2021) Date of orders: 15 October 2021 Decision date: 15 October 2021 Jurisdiction: Equity Before: Emmett AJA Decision: The Court makes the following orders: (1) Direct the plaintiff, by no later than 4:00pm on 29 October 2021, to bring in short minutes to reflect the conclusions reached in these reasons; (2) The plaintiff pay the defendant's costs of the proceedings; and (3) Reserve leave to the parties to apply, by no later than 4:00pm on 12 November 2021, for further directions if there is a dispute as to the calculation of payroll tax or interest or as to the costs of the proceedings. Catchwords: TAXES AND DUTIES — payroll tax — liability — employment agents — interpretation of Payroll Tax Act 2007 (NSW), s 37(1) — meaning of "client" — whether workers provided in and for the client's business — whether quadripartite arrangements between attendant care worker, recipient of care, funder of care and provider of care workers are employment agency contracts TAXES AND DUTIES — payroll tax — liability — employment agents — exemptions — interpretation of Payroll Tax Act 2007 (NSW), Sch 2 cl 8 — meaning of "the Crown" — meaning of staff "employed in connection with" public hospitals or local health districts — meaning of work "in connection with the conduct" of public hospitals or health districts — whether exclusively engaged in relevant work TAXES AND DUTIES — payroll tax — liability — employment agents — exemptions — interpretation of Payroll Tax Act 2007 (NSW), s 40(2) — whether client declaration requirement essential to exemption availability — failure to obtain client declarations TAXES AND DUTIES — payroll tax — wages — payments under relevant contracts — interpretation of Payroll Tax Act 2007 (NSW), s 32(2)(b)(iii) — meaning of "90 days" — whether a "day" in a financial year is constituted by 8 hours of work however dispersed throughout the year or a 24 hour period during which any amount of work is performed TAXES AND DUTIES — payroll tax — wages — payments to contractors — independent contractors or common law employees — indicia of common law employment TAXES AND DUTIES — administration — interest — remission — Taxation Administration Act 1996 (NSW), s 25 — remittal of premium interest — conflicting factors — prior audits and investigations concluded payroll tax not payable — absence of full and frank disclosure — partial success on appeal Legislation Cited: A New Tax System (Australian Business Number) Act 1999 (Cth), ss 8, 18 Aged Care Act 1997 (Cth), Pt 3.2, Divs 8, 14, s 61-1 Area Health Services Act 1986 (NSW), ss 11, 25 Civil Procedure Act 2005 (NSW) Disability Act 2006 (Vic) Disability Inclusion Act 2014 (NSW), s 4 Disability Inclusion Regulation 2014 (NSW), Sch 1 Eight-hours Act 1916 (NSW) Government Sector Employment Act 2013 (NSW) Health Administration Act 1982 (NSW), s 9 Health Services Act 1988 (Vic) Health Services Act 1997 (NSW) Home Care Service Act 1988 (NSW), s 4 Interpretation Act 1987 (NSW), ss 5, 13 Miscellaneous Acts (Area Health Services) Amendment Act 1986 (NSW) Motor Accidents (Lifetime Care and Support) Act 2006 (NSW), ss 11C, 43(3) National Disability Insurance Scheme Act 2013 (Cth), ss 6, 13, 15 NSW Trustee and Guardian Act 2009 (NSW), ss 5, 11 Pay-roll Tax Act 1971 (NSW), ss 3C, 10 Payroll Tax Act 2007 (NSW), ss 3, 5, 6, 7, 8, 9, 10, 11, 13, 14, 17, 32, 33, 34, 35, 37, 38, 39, 40, 50, 51, 63, 100, Sch 2 cll 7, 8, 9, Sch 3 cl 8 Pay-roll Tax (Amendment) Act 1979 (NSW) Pay-roll Tax (Amendment) Act 1983 (Vic) Pay-roll Tax (Further Amendment) Act 1977 (NSW) Public Sector Employment and Management Act 2002 (NSW) Public Sector Employment Legislation Amendment Act 2006 (NSW) Public Service Act 1999 (Cth) Social, Community, Homecare and Disability Services Industry Award 2010, cl 25.1 State Insurance and Care Governance Act 2015 (NSW) State Revenue Legislation Amendment Act 2005 (NSW) State Revenue Legislation Further Amendment Act 1999 (NSW) State Revenue Legislation (Miscellaneous Amendments) Act 1998 (NSW) Statute Law (Miscellaneous Provisions) Act 2016 (NSW), Sch 4 cl 2 Superannuation Guarantee (Administration) Act 1992 (Cth), s 12 Supreme Court Act 1970 (NSW) Taxation Administration Act 1996 (NSW), ss 3, 10, 18, 21, 22, 24 ,25, 86, 91, 94, 95, 97, 100, 103, 103A, 104, 105, 101, 119 Cases Cited: Adams Bidco Pty Ltd v Chief Commissioner of State Revenue [2019] NSWSC 702 Bayton Cleaning Company Pty Ltd v Chief Commissioner of State Revenue (NSW) [2019] NSWSC 657; (2019) 109 ATR 879 Bridges Financial Services Pty Ltd v Chief Commissioner of State Revenue [2005] NSWSC 788; (2005) 222 ALR 599 Burswood Management Ltd v Attorney-General (Cth) (1990) 23 FCR 144 Commissioner for Superannuation v Miller (1985) 8 FCR 153 Deputy Commissioner of Taxation v Clark (2003) 57 NSWLR 113; [2003] NSWCA 91 Drayton v Martin (1996) 67 FCR 1 Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd (2015) 228 FCR 346; [2015] FCAFC 37 Grain Growers Ltd v Chief Commissioner State Revenue (NSW) (2016) 93 NSWLR 415; [2016] NSWCA 359 Harrington Park Children Services (NSW) Pty Ltd v Chief Commissioner of State Revenue [2008] NSWSC 266; (2008) 71 ATR 143 Hollis v Vabu Pty Ltd (2001) 207 CLR 21; [2001] HCA 44 HRC Hotel Services Pty Ltd v Chief Commissioner of State Revenue (NSW) [2018] NSWSC 820; (2018) 108 ATR 84 Jamsek v ZG Operations Pty Ltd (2020) 279 FCR 114; [2020] FCAFC 119 Lease A Leaf Property Pty Ltd v Chief Commissioner of State Revenue [2011] NSWADTAP 41; (2011) 85 ATR 273 Leffanue v Southern Cross Community Health Care Pty Ltd [2020] FWC 3122 Moore Park Gardens Management Pty Ltd v Chief Commissioner State Revenue [2006] NSWCA 115; (2006) 62 ATR 628 Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465 Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497; 1 All ER 433 Smith's Snackfood Co Ltd v Chief Commissioner State Revenue [2012] NSWSC 1116; (2012) 90 ATR 342 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; [1986] HCA 1 Tasty Chicks Pty Ltd v Chief Commissioner State Revenue (NSW) (2011) 245 CLR 446; [2011] HCA 41 Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 Trust Co of Australia Ltd v Chief Commissioner of State Revenue [2002] NSWADT 21 UNSW Global Pty Ltd v Chief Commissioner of State Revenue [2016] NSWSC 1852; (2016) 104 ATR 577 Winston-Smith v Chief Commissioner of State Revenue [2018] NSWSC 773; (2018) 108 ATR 63 WorkPac Pty Ltd v Rossato [2021] HCA 23; (2021) 95 ALJR 681 Texts Cited: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 21 November 1979 New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 14 October 1998 New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 7 March 2006 Theodor Mommsen, Paul Krueger and Alan Watson (eds), The Digest of Justinian (1985, University of Pennsylvania Press) 19.2.9.5; 19.2.19.9; 19.2.19.10; 19.2.35.pr; 19.2.22.2; 19.2.51.1 World Health Organisation, "Continuity and Coordination of Care: A Practice Brief to Support Implementation of the WHO Framework on Integrated People-centred Health Services" (2018, Geneva) WW Buckland, A Textbook of Roman Law: From Augustus to Justinian (3rd rev ed, 1963, Cambridge University Press) Category: Principal judgment Parties: Southern Cross Community Healthcare Pty Ltd (Plaintiff) Chief Commissioner of State Revenue (Defendant) Representation: Counsel: E Collins SC with C Burnett SC and A Hammond (Plaintiff) R Seiden SC with D Mitchell and D Woods (Defendant)