Chief Commissioner of State Revenue v E Group Security Pty Ltd [2022] NSWCA 115

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Chief Commissioner of State Revenue v E Group Security Pty Ltd [2022] NSWCA 115 Hearing dates: 23 June 2022 Decision date: 06 July 2022 Before: Bell CJ, Gleeson JA, Leeming JA Decision: 1. Grounds 1, 2 and 3 of the amended notice of appeal, dismissed with costs. 2. The balance of the appeal to be listed for directions before the Registrar on a date to be advised. Catchwords: TAXES AND DUTIES – payroll tax – employment agents – interpretation of s 37(1) of Payroll Tax Act 2007 (NSW) – where Chief Commissioner sought to overturn construction determined by UNSW Global Pty Ltd v Chief Commissioner of State Revenue [2016] NSWSC 1852 – construction consistently applied in subsequent cases – numerous subsequent amendments to legislation – some amendments had materially altered the operation of employment agency contract provisions – construction not shown to be unworkable or untenable – legislation harmonised with other jurisdictions – construction in UNSW Global not departed from Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW) COVID-19 Legislation Amendment (Emergency Measures – Treasurer) Act 2020 (NSW) Payroll Tax Act 2007 (NSW), ss 3, 3A, 3C, 36A - 42, 66B, Schedule 2 s 13B Payroll Tax Amendment (Jobs Plus) Act 2021 (NSW) Pay-roll Tax (Amendment) Act 1985 (NSW) Pay-roll Tax (Amendment) Act 1987 (NSW) State Revenue and Other Legislation Amendment Act 2019 (NSW) State Revenue Legislation Amendment Act 2017 (NSW) State Revenue Legislation Amendment (COVID-19 Housing Response) Act 2020 (NSW) State Revenue Legislation (Miscellaneous Amendments) Act 1998 (NSW) Cases Cited: Banfirn Pty Ltd v Chief Commissioner of State Revenue [2019] NSWSC 1058 Bayton Cleaning Company Pty Ltd v Chief Commissioner of State Revenue [2019] NSWSC 657; 109 ATR 879 Bonner v Chief Commissioner of State Revenue [2022] NSWSC 441 Chief Commissioner of State Revenue v Downer EDI Engineering Pty Ltd [2020] NSWCA 126 Compass Group Education Hospitality Services Pty Ltd v Commissioner of State Revenue [2021] QCA 98 Drake Personnel Ltd v Commissioner of State Revenue (Vic) (1998) 40 ATR 304 Drake Personnel Ltd v Commissioner of State Revenue (2000) 2 VR 635; [2000] VSCA 122 E Group Security Pty Ltd v Chief Commissioner of State Revenue [2021] NSWSC 1190 Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 221 CLR 309; [2004] HCA 40 H R C Hotel Services Pty Ltd v Chief Commissioner of State Revenue [2018] NSWSC 820; 108 ATR 84 Jackmain (a pseudonym) v R (2020) 102 NSWLR 847; [2020] NSWCCA 150 JP Property Services Pty Ltd v Chief Commissioner of State Revenue [2017] NSWSC 1391; 106 ATR 639 Olde English Tiles Australia Pty Ltd v Transport for New South Wales [2022] NSWCA 108 Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4 Securecorp (NSW) Pty Ltd v Chief Commissioner of State Revenue [2019] NSWSC 744 Southern Cross Community Healthcare Pty Ltd v Chief Commissioner of State Revenue [2021] NSWSC 1317 Southern Cross Group Services Pty Ltd v Chief Commissioner of State Revenue [2019] NSWSC 666; 110 ATR 16 UNSW Global Pty Ltd v Chief Commissioner of State Revenue [2016] NSWSC 1852; 102 ATR 577 Category: Principal judgment Parties: Chief Commissioner of State Revenue (Appellant) E Group Security Pty Ltd (Respondent) Representation: Counsel: S Balafoutis SC, A Byrne (Appellant) J Hmelnitsky SC, D Lewis (Respondent)