EIE Ocean BV v Commissioner of Stamp Duties [1995] QSC 150

TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION MACKENZIE J APN No 5 of 1993 EIE OCEAN BV and COMMISSIONER OF STAMP DUTIES BRISBANE .. DATE 26/07 /95 JUDGMENT 1 REVISED COPIES ISSUED State Reporting Bureau Date -<1// q- I 9 J ( Applicant Respondent 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Televhone: (07) 227 4360. Facsimile: (07) 227 .li.1i.~2 -- 1 of 7 -- 260795 sgb (Mackenzie J) HIS HONOUR: In this matter I make the following orders: in relation to the trademark question, I order that the Commissioner include in the case stated the documents relating to the trademarks. As to the other issue concerning paragraph 27, I dismiss the 10 application. I publish my reasons. As the parties expressed a wish to make submissions concerning costs once the decision had been delivered, I will receive submissions from the parties in that regard no later than 14 20 days after the delivery of these reasons. If such submissions are not received within that time I will proceed on the assumption that the party not making submissions does not wish to do so. MR ALEXANDER: When Your Honour made the original order on 25 February 1994 there was a stay of the commissioner signing a stated case until the determination of the application. That has now been determined. We would ask for an extension of the stay until a final determination of the matter, either by the expiration of the appeal period or on determination of appeal. HIS HONOUR: I extend the stay to the expiry of the appeal period and give liberty to apply. JUDGMENT 2 30 40 50 60 -- 2 of 7 -- <sc 15/iso IN IBE SUPREME COURT OF QUEENSLAND Brisbane A.P.N. No. 5 of 1993 Before the Hon. Mr Justice Mackenzie [E.I.E. Ocean B.V. v. Commissioner of Stamp Duties] BE1WEEN: E.I.E. OCEAN B.V. Applicant COMMISSIONER OF STAMP DUTIES Respondent JUDGMENT- MACKENZIE .l Judgment delivered 26/7/1995 CATCHWORDS: Counsel: Solicitors: Hearing date: STAMP DUTIES - case stated - whether documents relating to trademarks which may affect valuation of land and subsequent duty should be included in the case stated. JUDICIAL REVIEW - wonting of case stated - whether reviewable matter. R. Gotterson Q.C. and H. Alexander for applicant K. Dorney Q.C. and J. Logan for respondent Mallesons Stephen Jaques for applicant K.O'Shea Crown Solicitor for respondent 20 April 1995 -- 3 of 7 -- IN TIIE SUPREME COURT OF QUEENSLAND Brisbane [E.I.E. Ocean B.V. v. Commissioner of Stamp Duties] BE1WEEN: E.I.E. OCEAN B.V. COMMISSIONER OF STAMP DUTIES JUDGMENT - MACKENZIE J. Judgment Delivered 26 July 1995 A.P.N. No. 5 of 1993 Applicant Respondent This matter was previously before me in February 1993, when the Commissioner of Stamp Duties was restrained from presenting a case stated in the form then proposed or in any other form until determination of applications for statutory order and order of review, or earlier order. In my reasons delivered on that occasion I exhorted the parties to engage in further discussions with a view to narrowing the issues and the area of dispute now has been narrowed to two matters. The applicant contends that para.30 of Schedule B to the further amended application for statutory order and order for review (amended on 18 August 1994 pursuant to order of that date), should be included in the case stated. The effect of the proposed paragraph is to annex documentary evidence concerning certain trademarks as to which there is a difference -- 4 of 7 -- 2 of opinion in relation to their effect on the relevant valuation. The respondent Commissioner opposes the inclusion of para.30 and resists the notion that the documents are relevant. The applicant opposes inclusion of cl.27 in the Commissioner's latest draft which is in the following form:- "27. After further consideration of the issues and after discussions with Ernst & Young of the matters which were later contained in their written report of 5 July 1991 (annexure "W"), the Commissioner issued to E.I.E.O the Notice of Default Assessment dated 30 May, 1991 (annexure "D"), on or about 27 June 1991." The applicant submitted that the reference to "the matters which were later contained in" the report should not be made. Mr Treganza, legal adviser in the Office of State Revenue, was cross examined on his affidavit to establish what discussions had been held with Ernst & Young at relevant times. The applicant's argument really was that there was a concern that it might be concluded from the form of words that everything in the report had reached a degree of finality in verbal discussions prior to the issue of assessment, whereas the formal report was issued after that date. It is not easy to see how an objection of the kind made fits comfortably within an application for judicial review. However Mr Dorney Q.C., for the Commissioner, was disposed to concede that if it was thought that the reference to "matters" was too wide, the use of the word "conclusions" in lieu was acceptable in view of the evidence. In my view the cross examinatio11 of Mr Treganza_did not establish that each and every matter contained in the report was discussed but the tenor of his evidence was that the discussion ranged over the ultimate conclusions of the report and on that basis the use of that word would appear to reflect the evidence more accurately. If the Commissioner is prepared to adopt that, there can be no cause for complaint on the part of the applicant. Returning to the issue relating to the trademark documents, the applicant's submission was that in reliance on a statement in Re. Sharpe (1944) St.R.Qd. 26, the Commissioner had an -- 5 of 7 -- 3 obligation to state all the facts affecting liability to duty not merely such facts as supported his claim to duty. I am not convinced that Re. Sharpe was attempting to lay down precisely the proposition upon which Mr Gotterson Q.C. really relies in this case. The way in which consideration of the valuation for stamp duty purposes proceeded is a little curious. The trademark documents were never actually presented to the Commissioner. Nor were they sought, the Commissioner relying on the opinion that as a matter of law they had no effect on the valuation of the land. The point in issue between the Commissioner and the applicant is whether the trademarks have independent value which should be deducted from the value of the land (as the applicant contends) or whether (as the Commissioner contends) they inhere in the land and have no existence or value independent of it. As I have said the Commissioner's view was formed without recourse to the documents and the insistence that they should not be referred to reflect an expression of a proposition of law made without recourse to the documents. When inquiry was made of counsel for the applicant why the documents had not been presented to the Commissioner, his response was effectively that the Commissioner had powers to obtain them if desired, but had chosen not to do so. Notwithstanding this course which, as events have proved, is fraught with complications for the applicant, I am unable to find anything which necessarily requires that a document sought to be included in the case stated on the basis that it is relevant has to be in the hands of the Commissioner before it can be included. It is quite plain that there was an issue as to the effect of the trademarks upon the valuation of the land. The Commissioner chose to resolve that as a matter of law without recourse to the documents. The applicant chose not to submit the documents to the Commissioner in support of its argument. The practical consequence of not including the documents in the case stated by way of annexure is that the Court of Appeal will if it feels necessary to have recourse to the documents -- 6 of 7 -- 4 to determine that issue, be deprived of them unless it has means of getting them. The appropriate principle to be applied in determining the content of the case stated in this case is to ensure that all documents which are alleged to be relevant to the proper resolution of the issues pertaining to duty payable are included in the case stated so that the Court of Appeal may have access to them if necessary. That principle has not been applied by the Commissioner, and the proper resolution of the matter is to order that the Commissioner include in the case stated the documents relating to the trademarks. As to the other issue concerning para.27, I am not satisfied that there is any reviewable matter under The Judicial Review A et. The complaint is about a form of expression rather than any matter which falls within the purview of The Judicial Review A et. The parties expressed a wish to make submissions concerning costs once the decision had been delivered. I will receive submissions from the parties in that regard no later than 14 days after the delivery of these reasons. If such submissions are not received within that time, I will proceed on the assumption that a party not making submissions does not wish to do so. -- 7 of 7 --