Tasty Chicks Pty Limited and Ors v. Chief Commissioner of State Revenue
Lower Court Judgment
Supreme Court of New South Wales (Court of Appeal)
(Giles JA, Macfarlan JA, Handley AJA)
Statutes — Acts of Parliament — Interpretation — Taxation and duties — Appeal and new trial — Powers of court — Substituted verdict or judgment — Section 97 of Taxation Administration Act 1996 (NSW) ("Act") allows taxpayer to apply to Supreme Court for review of decision of Chief Commissioner the subject of an objection — Section 97(4) of Act provides review by Supreme Court taken to be an appeal for purposes of Supreme Court Act 1970 (NSW) — Commissioner issued payroll tax assessments grouping first and second applicants with partnership and other companies —Commissioner disallowed applicants' objections — Applicants sought review by Supreme Court pursuant to s 97 of Act — Trial judge re-exercised discretion under de-grouping provisions and, contrary to Commissioner, held first and second applicants should be de-grouped — Court of Appeal held review under s 97 of Act an appeal in ordinary sense meaning Court not entitled to re-exercise discretion under de-grouping provisions and substitute its decision for that of Commissioner — Whether appeal instituted in Supreme Court pursuant to s 97 of Act an appeal by way of hearing de novo — Whether applicants required to prove that determination of Commissioner under review pursuant to s 97 of Act attended by error — Whether Avon Downs v Pty Limited v FCT (1949) 78 CLR 353 and House v The King (1926) 55 CLR 499 apply in proceedings under s 97 of Act in respect of Court's review of discretionary determination made by Commissioner — Affinity Health Pty Limited v Chief Commissioner of State Revenue (2005) 205 ATC 4637 — Act, ss 96 and 97 — Supreme Court Act 1970 (NSW), ss 19(2) and 75A.
Words and phrases — "appeal", "review".
10/06/2011 Hearing (SLA, Sydney)
22/06/2011 Notice of appeal
08/07/2011 Written submissions (Appellants)
29/07/2011 Written submissions (Respondent)
08/09/2011 Hearing (Full Court, Canberra)