Case: ICI Australia Operations Pty Ltd v Deputy Commissioner of Taxation (1987) 87 ATC 5110
Outcome: cited
Further as to Lindsay's case as to non-fulfilment of the statutory description of general-purpose road vehicle , the Commissioner drew attention nevertheless to dicta of the Full Court of the Supreme Court of Victoria in ICI Australia Operations Pty Ltd v Deputy Commissioner of Taxation (1987) 87 ATC 5110, where at 5112, Gray J (with whom Kaye J agreed) said: 'The test for inclusion in this category is that one can stipulate that the primary purpose of the vehicle and its customary use is to transport goods or persons in the course of commercial activity. In applying this test, the concept of "ordinarily used for" equals "whose primary but not necessarily exclusive purpose and customary use is". I say that because in my view the expression "ordinarily used" in the present context cannot be divorced from the concept of the primary purpose for which the vehicle is intended to be used and is in fact customarily used.' The Commissioner submitted on that footing that the expression general-purpose road vehicle is sufficiently wide as to connote any type of vehicle which travels on the road, provided it is used for the transport of persons or goods, irrespective of the vehicle not being capable of self-propulsion. Even if that be so, which in my opinion must be at least doubtful, the submission does not at least readily accommodate the statutory notion of a kind ordinarily used . A consideration of each of the descriptions of the relevant goods of Lindsay, at least when addressed individually, does not satisfactorily fulfil the ordinary or usual notion of vehicle, for instance as appearing in the Oxford and Macquarie dictionaries, nor that of road vehicle , so far as concerns the refrigeration unit and the rigid body in particular. The reefer is however at least more debateable as it potentially falls within the Macquarie Dictionary (Revised Third Edition) definition of vehicle as a 'carriage on wheels'. 21 The earlier foreshadowed s 13 of the STEC Act, which is headed Lower level operation of excluded property, and upon which the Commissioner placed reliance, provides as follows (so far as is material): '(1) In deciding whether exemption Item... 18... 36... applies, the exemption user cannot rely on: (a) the use of the exemption goods, so far as the use relates directly to: (i) excluded property; or ... (b) the use of other property so far as its use relates directly to: (i) excluded property; ... (2) In this section: excluded property means property that is expressly excluded from the exemption Item concerned....', ... The exceptions or non-inclusions thereafter set out refer to Items not here material. 22 The note to Item 36, which I have earlier substantially reproduced, makes reference of course to s 13 of the STEC Act which is not readily comprehensible in its scope of application, addressing as it does exemptions or exclusions from excluded property. Before addressing s 13, I should perhaps observe that at least no aspects of the so-called generally-excluded property , as exemplified in subss 12(2) and (3) of the STEC Act, are here relevant, referring as the same respectively do to 'motor vehicles covered by Item 1 in Schedule 5 (other than vehicles known as four-wheel drive vehicles)' or '[p]roperty... for use mainly for or in connection with the preparation or preservation of food or drink for human consumption, if the preparation or preservation takes place in: (i) a retail or catering establishment; or (ii) premises that are occupied in connection with a retail or catering establishment;...' Section 12 may therefore be put aside. 53 On the appeal in Hamersley Iron , Lush J (with whom Kaye J agreed) said at 607: 'The goods, so identified, are shown by the evidence to have been subjected to a desired change. If a chemical change is sought, the change wrought in the goods is a reduction of variability in the concentration of chemicals throughout the ore. If a change in form, nature or condition is sought, then the goods have been changed in such a way that, if they have not been made marketable, they have at least been made marketable to the better advantage of both seller and buyer. In a word, the change in the goods justifies the application of the word treatment to the mode of producing the change. If it be necessary, it should be held that in the context of item 14 chemical change is not of the essence of treatment.' And further at 607: 'Even if the decision on the meaning of "treatment" and the concept of what are the goods be rejected, the individual fragments of mineral are "processed" by the blending because they are, intentionally and usefully, re-arranged vis-&agrave;-vis one another.... The Commissioner contended that a change in form or nature of the goods was required, but that is inconsistent with [certain English authority decided in 1957]..., and can be regarded as consistent with such cases as [certain further English authority decided in 1956 and 1966] only if goods the subject of the operation are regarded as a general mass of useful goods together with dirt, waste or impurities, and not the separate individual pieces intended for delivery or sale.' Establishing and maintaining a requisite low temperature to foodstuffs, in order to preserve marketability, would seemingly satisfy the present Schedule 1 (ie Item 18(5)(c)) notions above addressed in those authoritative descriptions.