Deputy Commissioner of Taxation (NSW) v. Zest Manufacturing Co Pty Ltd
(1949) 79 CLR 16623 ALJ 520
(Judgment by: Williams J)
Between: Deputy Commissioner of Taxation (NSW)
And: Zest Manufacturing Co Pty Ltd
Judges:
Latham CJ
Rich J
Dixon J
McTiernan J
Williams JWebb J
Judgment date: 12 December 1949
Judgment by:
Williams J
Mr. White submitted an attractive argument in favour of providing cheap food free of sales tax for trout, perch and carp, and for goldfish and other types of ornamental fish living in captivity in hatcheries. The food in question is scientifically prepared and sold to proprietors and controllers of hatcheries where such fish are bred and kept in captivity pending their liberation to stock streams or reservoirs or their sale for ornamental purposes. The success of the argument depends upon whether such foods are foods for livestock within the meaning of the item described as foods for livestock in par. 6 (4) of Div. 1 of the First Schedule to the Sales Tax (Exemptions and Classifications) Act 1935-1947. Mr. White relied on the meaning of livestock in the Oxford Dictionary, which defines livestock to include animals of any kind kept or dealt with for use or profit. The fish in question are animals, they are alive and they are dealt with for use or profit. It there was no controlling context, this definition might, I think, be wide enough to include such fish. Section 3 (2) of the Act provides that the heading to any schedule to the Act or to any division in any schedule to the Act shall not be read as affecting the interpretation of that schedule or of any item in that schedule. We must not therefore pay any regard to the heading of Div. 1 "Agricultural Machinery, Implements, Equipment and Materials." But we must pay regard to the contents of the paragraph in which the item occurs. Paragraph 6 is headed "Goods (and parts therefor) for use in the maintenance of livestock." This heading is innocuous. But the paragraph refers specifically to horses, cattle, sheep and pigs. It includes amongst the items:
- (7)
- Preparations for use in the prevention, cure or eradication of diseases or pests in livestock;
- (8)
- Rock salt and licks for livestock;
- (12)
- Tar brands, fire brands, tattoo brands, ear pliers, ear tags and ear markers, for marking or branding livestock.
It was not suggested that the goods described in the paragraph, particularly those described in items (7), (8) and (12), would be used in the maintenance of the relevant fish. Then there is item (13), perhaps an unlucky one for the fish, which includes in goods for use in the maintenance of livestock veterinary instruments, appliances and materials of a kind ordinarily used by veterinary surgeons. Veterinary surgeons would not, I should think, ordinarily include fish amongst their patients. The context of the paragraph brands, I think, the livestock intended to benefit. Fish have a natural aversion to being caught. In the present case it is desired to catch the fish in the network of exemptions, but in my opinion the attempt fails. The paragraph as a whole and its component parts is appropriate only to animals which inhabit the land and quite inappropriate to animals which inhabit the water. (at p176)
The question asked in the case stated should be answered in the negative and there should be judgment for the plaintiff for 106 pounds 5s. 3d. with costs. (at p176)