Smith's Snackfood Company Ltd v Chief Commissioner of State Revenue (NSW) [2013] NSWCA 470

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Smith's Snackfood Company Ltd v Chief Commissioner of State Revenue (NSW) [2013] NSWCA 470 Hearing dates: 9 July 2013 Decision date: 23 December 2013 Before: Beazley P at [1]; Gleeson JA at [2]; Sackville AJA at [235] Decision: (1) Appeal allowed. (2) Cross-appeal allowed in part as to Ground 1, but otherwise dismiss the cross-appeal. (3) Set aside orders 1 and 2 made by Gzell J on 13 September 2012. (4) In lieu of orders 1 and 2 referred to in Order 3, make the following orders: (a) that each of the following Notices of Assessment issued by the respondent to the appellant be set aside: (i) Notice of Assessment No 5654095 dated 12 January 2010 (the 2005 Assessment); (ii) Notice of Assessment No 5670903 dated 27 January 2010 (the 2006 Assessment); (iii) Notice of Assessment No 5653846 dated 12 January 2010 (the 2007 Assessment); (iv) Notice of Assessment No 5670885 dated 27 January 2010 (the 2008 Assessment); (v) Notice of Assessment No 5670880 dated 27 January 2010 (the 2009 Assessment); (b) that the respondent issue the appellant with a replacement Notice of Assessment for the relevant financial year in respect of each of the Notices of Assessment referred to in (a) above, as if the objection lodged by the appellant under s 86 of the Taxation Administration Act had been allowed in whole; (c) the respondent pay the appellant's costs of the proceedings in the Equity Division, other than the costs of Mr Feil's report. (5) The respondent pay the appellant's costs of the proceedings in the Court of Appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: TAXES AND DUTIES - payroll tax - liability to taxation - Payroll Tax Act 2007 - Payroll Tax Act 1971 - contractor provisions - whether contractors engaged under a "relevant contract" - whether appellant was supplied services ancillary to the conveyance of goods by means of a vehicle provided by the person conveying them - whether apportionment provisions of the Payroll Tax Acts should apply Legislation Cited: Accident Compensation Act 1985 (Vic), s 9 Payroll Tax Act 2007, ss 6, 7, 10(1), 13(1), 32, 35 Payroll Tax Act 1971, ss 3(1), 3A, 3AA, 6(1)(a), 7, 8 Payroll Tax (Amendment) Act 1986 Payroll Tax (Amendment) Act 1985 R v Khazaal [2012] HCA 26; 86 ALJR 884 Supreme Court Act 1970, s 101 Taxation Administration Act 1966, s 101(1)(d) Cases Cited: Accident Compensation Commission v Odco Pty Ltd [1990] HCA 43; 64 ALJR 606 Arnold v Minister Administering the Water Management Act 2000 [2008] NSWCA 338; 73 NSWLR 196 Baterham v Makeig [2010] NSWCA 86 Bridges Financial Services Pty Ltd v Chief Commissioner of State Revenue [2005] NSWSC 788; 222 ALR 599 Central Asbestos Co Ltd v Dodd [1973] AC 518 Certain Lloyd's Underwriters Subscribing to Contract No IHOOAAQS v Cross [2012] HCA 56; 293 ALR 412 Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 293 ALR 257 Commissioner of Taxation v Unit Trend Services Pty Ltd [2013] HCA 16; 297 ALR 190 Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588 Dungowan Manly Pty Ltd v McLaughlin [2012] NSWCA 180 Heperu Pty Ltd v Patricia Belle (No 3) [2013] NSWSC 1088 Koala Motels Pty Ltd v Chief Licensing Inspector (1977) 18 ALR 12 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390 Kuru v State of New South Wales [2008] HCA 26; 236 CLR 1 Macquarie International Health Clinic Pty Ltd v University of Sydney (1988) 98 LGERA 218 McCleary v Director of Public Prosecutions (Cth) (1998) 20 WAR 288 McFarlane v Kelly (1986) 85 FLR 357 Minister for Local Government v South Sydney Council [2002] NSWCA 288; 55 NSWLR 381 New South Wales Crime Commission v Ollis [2006] NSWCA 76; 65 NSWLR 478 Nix and Dunn v Pittwater Council (1994) 84 LGERA 199 NTL Australia Pty Ltd v Minister for Land and Water Conservation [2001] 112 LGERA 403 O'Grady v Northern Queensland Co Ltd [1990] HCA 16; 169 CLR 356 Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 Regina v Her Majesties' Treasury; ex parte Smedley [1985] QB 657 R v McMahon; ex parte Darvall [1982] HCA 56; 151 CLR 57 Repatriation Commission v Law (1980) 31 ALR 140 Roncevich v Repatriation Commission [2005] HCA 40; 222 CLR 115 The Noordam (No 2) [1920] AC 904 Tomanovic v Global Mortgage Equity Corporation Pty Ltd (No 2) [2011] NSWCA 256; 288 ALR 385 Waters v PC Henderson (Aust) Pty Ltd [1994] NSWCA 338; 254 ALR 328 Texts Cited: Macquarie Dictionary, 5th ed, 2009 Oxford English Dictionary, 3rd ed, 2000 Category: Principal judgment Parties: Smith's Snackfood Company Ltd (Appellant/Cross-Respondent) Chief Commissioner of State Revenue (Respondent/Cross-Appellant) Representation: Counsel: D Russell QC and D J Price (Appellant/Cross-Respondent) C Leggat SC and I Young (Respondent/Cross-Appellant) Solicitors: Johnson Winter & Slattery (Appellant/Cross-Respondent) I V Knight, Crown Solicitor (Respondent/Cross-Appellant) File Number(s): CA 2012/296415 Decision under appeal Citation: The Smith's Snackfood Company Ltd v Chief Commissioner of State Revenue (NSW) [2012] NSWSC 998 and 1116 Before: Gzell J File Number(s): 2010/307535