Deputy Commissioner of Taxation (NSW) v. Zest Manufacturing Co Pty Ltd

(1949) 79 CLR 166
23 ALJ 520

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(Judgment by: Dixon J)

Between: Deputy Commissioner of Taxation (NSW)
And: Zest Manufacturing Co Pty Ltd

Court:

Judges: Latham CJ
Rich J

Dixon JMcTiernan J
Williams J
Webb J

Hearing date: December 12 1949
Judgment date: 12 December 1949

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Judgment by:
Dixon J

The question for decision is whether the defendant is liable for sales tax upon certain goods which the defendant manufactures and sells. The goods consist of scientifically prepared foods for fish such as trout, perch and carp and for gold fish and other similar types of ornamental fish known as exotics. The sales with which we are concerned are sales of such food to the proprietors and controllers of hatcheries where fish of these kinds are kept in captivity. The purchasers breed and regulate the breeding of such fish in the course of carrying on business as breeders and vendors of the fish. The defendant denies that the sales are subject to sales tax on the ground that the goods are exempted by the Sales Tax (Exemptions and Classifications) Act 1935-1947. The exemption upon which reliance is placed is of "foods for livestock." It is said that the fish for which the food is bought are "livestock," at all events in the hands of the purchasers. The word "livestock," according to its dictionary meanings, describes domestic animals generally; animals of any kind kept or dealt in for use or profit; the animals on a farm; and is also used as a collective term for horses cattle and sheep bred for use or profit: Oxford English Dictionary s.v. "livestock" and "stock," par. 54. It does not strike me as in accordance with ordinary English usage to apply the word to fish; though perhaps there is not much reason why the expression should not be extended to include fish, if the context and subject matter suggested it. In my opinion, however, the context is quite opposed to assigning to the word "livestock" a meaning wide enough to include fish. The exemption is the fourth of the items contained in clause 6 of Div. 1 of the First Schedule of the Act. Clause 6 is as follows:

"Goods (and parts therefor) for use in the maintenance of livestock, viz.: - (1) Bullnose punches (2) Dips and washes for cattle or sheep (3) Drenching guns and syringes (4) Foods for livestock (5) Lamb-marking cradles (6) Marking and branding oils (7) Preparations for use in the prevention, cure or eradication of diseases or pests in livestock (8) Rock salt and licks for livestock (9) Rugs for horses, cattle, sheep and pigs (10) Sheep and stock feeders for use in agricultural industry (11) Sheep jetting plant (12) Tar brands, fire brands, tattoo brands, ear pliers, ear tags and ear markers, for marking or branding livestock (13) Veterinary instruments, appliances and materials of a kind ordinarily used by veterinary surgeons." (at p173)

This context is anything but aquatic or ichthyological. It suggests broad acres and rural pursuits. For poultry farming a separate exemption is given by the second item of clause 11 of Div. 1. Clause 11 covers - (1) poultry imported for breeding purposes, (2) foods for poultry, (3) poultry farmers' equipment and (4) preparations for diseases in poultry. (at p173)

I see in clause 6 no indication of a policy of exempting foods for all living creatures which man may use or profit by, but rather of a policy of exempting foods used in raising what in Australia would ordinarily be called "stock." (at p173)

In my opinion the defendant's claim to the exemption fails and the question in the case stated should be answered - No. (at p173)