Downland Publications Limited v. Deputy Federal Commissioner of Taxation.
Judges:Gobbo J
Court:
Supreme Court of Victoria
Gobbo J.
The plaintiff publishes each week for distribution in all States and Territories a printed publication entitled Best Bets. The plaintiff now seeks a declaration that Best Bets is exempt from the payment of sales tax on the basis that it is an exempt periodical or magazine or alternatively, a newspaper, within Items 51 and 54 respectively of the First Schedule to the Sales Tax (Exemptions and Classifications) Act 1935 of the Commonwealth.
It was common ground that the procedure by way of declaration was an appropriate one in the present circumstances. There was no dispute as to the sale value of the publication. It was also agreed that, if the exemption did not apply, the sales tax referred to in the writ in respect of the period November-January, 1980 was payable. Nor was there any dispute that the publication was a periodical within the definition contained in Item 51. The sole issue was whether or not the publication Best Bets was exempt. This largely turned on whether it was a programme or guide of a sporting event or sporting events.
The relevant portion of Item 51, which appears in Div. IX of the Sales Tax (Exemptions and Classifications) Act 1935-1973, is as follows:
``51(1) Books, pamphlets, leaflets, periodicals, magazines and printed music, but not including (unless covered by any other item or sub-item in this Schedule) -
- ...
- (b) programmes, schedules, syllabuses, guides or souvenirs of entertainments, amusements, exhibitions, competitions or sporting events.''
Best Bets is a pocket-sized publication, which is printed each Thursday in the Melbourne office of the plaintiff and distributed throughout Friday and Saturday morning to all parts of the Commonwealth. It is distributed along with certain newspapers, sometimes being newspapers published by the plaintiff itself or companies in the same newspaper group. The sole method of distribution is through newsagents. The publication is not sold within any racecourse but, on the occasion of a race meeting, the nearest newsagent will usually cause the publication to be sold by newsboys outside the racecourse. Detailed
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statistics were put in evidence before me that indicated the level of sales that occurred on such occasions. The numbers sold outside racecourses were of a quite trivial nature compared to the nationwide sales of the publication, which averaged slightly in excess of 50,000 copies per week.The publication Best Bets contains within it a full list of each of the main horse race meetings being conducted on the Saturday immediately following the publication. Usually there are four such meetings. In addition to the details of the horses starting in each of the relevant meetings in each State covered, the publication also sets out information about the starters in each of the main trotting meetings in each State. The details as to the races and horses are comprehensive to the extent that there is included the time of the particular race at the particular meeting, details about the distance and the identifying numbers of the horses and their barrier positions, the breeding and other details of the horse itself, the identity of its trainer and usually details as to the horse's performance at its last start. There is also set out the weight carried by the horse and some limited detail as to its placing at its last three starts. In respect of each horse, there is set out a commentary as to its past performance and a prediction couched in descriptive terms. The commentary generally contains some measure of reasoned opinion. In addition, there are a number of articles by turf commentators or personalities and also a series of predictions by colourful prophets writing under such titles as Madam X and Flash Freddie.
The title and subtitle of the publication are Best Bets... your quick-reference pocket-size form guide. The table of contents for the issue for Saturday, 26th January, 1980 is typical of the other issues tendered and reads:
``CONTENTS
Your Stars Tell ..................... 2
Top Four ............................ 3
National TAB Guide .................. 4
Melbourne Quadrella ................. 5
Dandy Dan's Doubles ................. 5
Tips from Tracks .................... 6
John Russell ........................ 7
Caulfield Races .................. 8-17
Randwick Races .................. 18-24
John Tapp .......................... 25
Victoria Park ................... 26-32
Sandown Park Dog Tips .............. 28
Jockeys' Poll ...................... 29
Madam X ............................ 31
John O'Neil ........................ 33
Eagle Farm Races ................ 34-41
Vince Curry ........................ 42
Flash Freddie ...................... 42
Harold Park Trots ............... 43-48
Moonee Valley Trots Quadrella ...... 48
Moonee Valley Trots ............. 49-54
How To Read Your Guide ............. 54
Albion Park Trots ............... 55-60
Trotting TAB Guide ................. 61
Index ........................... 62-63''
There was oral evidence called on behalf of the plaintiff largely to establish formal matters of proof. Part of this evidence, however, had a measure of contention about it. I refer to the evidence from an experienced racing journalist, Mr. Taylor, who had a close knowledge of the setting up and development of the publication. Some of his evidence was objected to on the ground that it was directed to explaining the purpose with which the publication was produced and which market it was intended to serve. It was said that this amounted to evidence as to the subjective purpose of those responsible for the publication, a consideration which was irrelevant, as Gibbs J., as he then was, pointed out in
D.F.C. of T. v. Rotary Offset Press Pty. Ltd. 71 ATC 4170 at pp. 4175-4176. I received the evidence subject to objection. I accept the view that a witness cannot give evidence as to the purpose of a publication if that evidence is directed to establish the character or nature of the publication. The function or nature of the publication is to be established by objective criteria and that is a matter for decision by the Court. At the same time, it is in my view open to a party to describe the contents of the publication and to explain the selection of such contents made during the preparation and development of the publication. It is somewhat artificial to examine the contents and format of a publication in the abstract, as it were, without knowledge of the habits and needs of the readers of the publication. Again, it is often not possible to identify function in the abstract without some evidence that contains an element of purpose. Such evidence in my view is useful and admissible provided it is
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not treated as answering the ultimate question as to the character and nature of the publication, as that question is for the Court alone to decide. Thus, I do not reject evidence that particular features of the publication assist punters in a particular way, nor do I reject evidence that particular features serve the needs of particular classes of punters. But I do not treat descriptions of original purpose, much less compendious claims as to the character of the publication, as admissible to determine the ultimate issue I have to determine. To that extent I exclude evidence as to purpose contained in the evidence of Mr. Taylor.On behalf of the plaintiff it was submitted that the words in Item 51(1)(b) should be read together, not in isolation from one another. It was said that the terms in subpara. (b) were in the nature of synonyms for a particular type of publication conventionally issued in association with the activities listed. Best Bets was said not to have the necessary connection with a sporting event as it was not a programme of the event, nor was it a guide of an event or a series of events. The word ``of'' was important as this was said to postulate a direct connection such as would be true of the programme published by the organisers of a sporting event for use at or in connection with that event. There was the alternative argument that the publication was a newspaper within the meaning of Item 54. But as to this argument it was recognized by the plaintiff that I was constrained by the decision in this Court in
Henderson v. Wilson (1944) V.L.R. 144 where it was held that a sporting paper having considerable similarity to Best Bets was not a newspaper either in the ordinary sense of a newspaper or within its meaning in the Police Offences Act.
On behalf of the Commissioner of Taxation it was submitted that Best Bets was a guide to or of a race meeting or race meetings. It was put that it was also a programme and that it was no less a programme because it contained material such as predictions not usually found in a programme. As to the publication being a guide, it was submitted that a guide was an aid to participation - whether by watching or listening or betting. A further alternative argument was that betting itself was an entertainment and also that pool betting based upon the use of a totalizator system was a competition and that Best Bets was plainly a guide to such competition. Reliance was placed on decisions as to the nature of the pools system of betting, in particular
Elderton v. United Kingdom Totalisator Co. (1946) 1 Ch. 57. See too the discussion in
Davison Faulkner Pty. Ltd. v. Totalizator Agency Board (1971) V.R. 274.
Neither party submitted that there was any authority that was really relevant to the issue before me, though it was urged on behalf of the Commissioner of Taxation that I should follow the approach adopted by Gibbs J. as he then was in
D.F.C. of T. v. Rotary Offset Press Pty. Ltd. 71 ATC 4170. His Honour had before him the question as to whether a particular publication used to provide information as to properties for sale was advertising matter within the meaning of Item 51. His Honour said at p. 4175 as follows:
``In my opinion, however, the subjective purpose of those responsible for the publication is not the test in deciding whether a periodical falls within para. (e). In para. (f) purpose is expressly referred to but para. (e) looks to the nature of the matter itself. The question whether a periodical is `advertising matter' seems to me to depend on whether the periodical, viewed objectively and without regard to the actual intentions of those publishing it, answers that description. In other words, if the periodical on its face appears to be designed to promote the sale of property by means of public announcement that it is for sale, and by giving a description of its qualities and a statement of its price, it is `advertising matter' notwithstanding that its publication was, in fact, promoted not only by the desire to sell the property, but for other purposes as well. Of course, the publication has to be viewed in the light of those surrounding circumstances which are rendered admissible by the ordinary rules governing the admissibility of extrinsic evidence for the purposes of construing a document.''
I have come to the view that Best Bets is a guide of a sporting event or sporting events. The word ``guide'' in the context of Item 51(1)(b) connotes compendious information
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of the event. I recognize that mere information that may relate to an event would not suffice, nor would mere information about an event such as a publication that contained an account of a past sporting event. The information that is both compendious and assists, providing it is in respect of the event and for use at, or in connection with, the event, would in my view be capable of amounting to a guide of the event. It is not necessary that there has to be a greater direct connection with the event in question, nor that the publication be produced by the organiser of the event or have some official character about it in that regard. That would involve restricting the words so that a guide became the guide of a sporting event.The publication here contained elaborate factual material about the sporting event in question that had the function of assisting the reader in ascertaining the details of the event and, if the reader so chose, to listen to a broadcast of an event. It was a publication issued before the event and in respect of it. Furthermore, it was a publication that contained material that was also capable of assisting in any participating in an activity that was invariably an adjunct of the sporting event, namely betting on the event.
It is true that the publication here contains much commentary but it does not lose its character as a guide because it contains a considerable amount of commentary that is in the nature of advice. This commentary was not mere criticism, nor was it mere narrative. It was directed to advise and assist, and thus to guide. At the same time it is not every publication containing advice and assistance that constitutes a guide. Thus a publication may contain information, such as an account of the work of a composer, that assists in following a particular entertainment such as an opera by that composer. Such a publication would not, in any meaningful sense, be a guide, even though it may be information that assists in enjoying the entertainment and even though it was issued before the entertainment. It could not properly be said that that was a guide, the predominant character of which was to act as a guide in respect of an entertainment. For the same reason I reject the argument of the Commissioner that a guide is merely an aid to participation. That is too wide a meaning to adopt in this context. Best Bets, however, is in my opinion a publication that, by its detailed provision of data in respect of the race meetings to be held thereafter and by reason of the assistance capable of being given by such data and the manner in which it was set out, constitutes a guide of the race meetings in question.
This conclusion renders it unnecessary to decide whether Best Bets is not also a programme within the meaning of Item 51(1)(b). The plaintiff's case on this argument was stronger, however, since it was able to point to a considerable number of matters that were not to be found in Best Bets which one might expect to find in a programme of a race meeting. I note that Best Bets was not issued by the organisers of the meeting, nor was it distributed at, or specifically for, the particular venue of the race meeting. It did not contain an essential item of information for those wishing to view the race or races at the meeting itself, namely the colours worn by the jockeys. It may therefore properly be said that there was only a limited connection between the publication and the sporting event, and that more was required in order to constitute the publication a programme. I do not, however, have to decide this matter, having regard to my view that the publication Best Bets is otherwise within Item 51(1)(b). For the same reason I do not have to decide the further alternative argument of the Commissioner that Best Bets was a guide of a competition, namely the competition of pool betting, in which all those betting on the totalizator were engaged. This was an ingenious argument but it seems somewhat stilted to treat pool betting as a competition in general parlance. Pool betting does not readily sit beside the other words in subpara. (b) and it is to be noted that the decisions relied upon as to such betting constituting a competition related to the word ``competition'' where it was used with a special statutory meaning and not in general parlance.
It only remains to deal with the alternative argument put on behalf of the plaintiff that the publication Best Bets was a newspaper within the meaning of Item 54. I see no sufficient reason why I should not follow the decision in this Court in Henderson v. Wilson (1944) V.L.R. 144, where a
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publication having considerable similarity to the one in issue before me was held not to be a newspaper.It follows that the plaintiff's claim for a declaration fails and that the plaintiff's action is to be dismissed with costs.
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