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Queensland Chamber of Commerce and Industry Ltd v Commissioner of State Revenue

 

[2015] QSC 77

 

SUPREME COURT OF QUEENSLAND

  

PARTIES:

FILE NO/S:

Trial Division

PROCEEDING:

Appeal and application

DELIVERED ON:

13 April 2015

DELIVERED AT:

Brisbane

HEARING DATE:

5 November 2014

JUDGE:

Jackson J

ORDER:

The order of the court is that:

  1. The appeal is allowed in part.
  2. The appellant’s application for registration as an institution under Part 11A of the Taxation Administration Act 2001 (Qld) is remitted to the respondent for decision in accordance with these reasons.
  3. The parties make submissions as to other orders within five business days of this order.

CATCHWORDS:

TAX AND DUTIES – PAYROLL TAX – LIABILITY TO TAXATION – EXEMPTIONS – OTHER EXEMPTIONS – where the appellant was a company limited by guarantee – where the respondent is the Commissioner of State Revenue – where the respondent refused the appellant’s application to be registered as an institution under Pt 11A of the Tax Administration Act 2001 (Qld) – where the respondent’s refusal was based on the appellant’s constitution failing to satisfy the requirements of s 149C(5)(a) and (b) of the Tax Administration Act 2001 (Qld) – whether the appellant’s income and property was used solely for promoting its objects

TAX AND DUTIES – PAYROLL TAX – LIABILITY TO TAXATION – EXEMPTIONS – OTHER EXEMPTIONS – where the appellant was a company limited by guarantee – where the appellant sought to be registered as a charitable institution by the respondent under the Tax Administration Act 2001 (Qld) – whether the respondent can register a charitable institution under Pt 11A of the Tax Administration Act 2001 (Qld) from a date prior to Pt 11A coming into effect

Acts Interpretation Act 1954 (Qld), ss 14A, 14C, 20(2)(c)

Companies Act 1931 (Qld)

Corporations Act 2001 (Cth), Pt 10.1, ss 112, 117, 124, 125, 134, 136, 198A, 254SA, 1371, 1378

Duties Act 2001 (Qld) 

Land Tax Act 2010 (Qld), s 98, Sch 3

Payroll Tax Act 1971 (Qld), ss 9(1), 14, 104

Taxation Administration Act 2001 (Qld), Pt 11A, ss 18, 19, 20, 21, 70B, 70C, 149A, 149C, 149G, 168, Sch 2

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41, followed

ANZ Executors and Trustee Company Limited v Qintex Australia Ltd (receivers and managers appointed) [1991] 2 Qd R 360; [1990] FC 067, followed

Capricornia Credit Union v Australian Securities Investment Commission (2007) 159 FCR 69; [2007] FCAFC 79, applied

Chang v Laidley Shire Council (2007) 234 CLR 1; [2007] HCA 37, cited

CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2, applied

Cooper Brookes (Wollongong) Proprietary Limited v The Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297; [1981] HCA 26, followed

Houldsworth v City of Glasgow Bank (1880) 5 App Cas 317, referred to

K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309; [1985] HCA 48, applied

Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55, applied

Pilmer v The Duke Group Ltd (in liq) (2001) 207 CLR 165; [2001] HCA 31, considered

Pryke & Ors v Commissioner of State Revenue [2006] QSC 226, referred to

Re Heydon’s Case (1584) 3 Co Rep 7a, 7b; 76 ER 637, cited

Sojitz Coal Resources Pty Ltd v Commissioner of State Revenue [2015] QSC 9, referred to

Sons of Gwalia Ltd v Margaretic (2007) 231 CLR 160; [2007] HCA 1, referred to

Trevor v Whitworth (1887) 12 App Cas 409, considered

Webb Distributors (Aust) Pty Ltd v State of Victoria (1993) 179 CLR 15; [1993] HCA 61, referred to

Whitehouse v Carlton Hotels Pty Ltd (1987) 162 CLR 285; [1987] HCA 11, applied

COUNSEL:

L Harrison QC for the appellant/applicant

M Hinson QC for the respondent

SOLICITORS:

PPM Tax and Legal for the appellant/applicant

Cooper Grace Ward for the respondent

[1] Jackson J: The outcomes of this appeal and application turn on the extent of the operation of two provisions of the Taxation Administration Act 2001 (Qld) (“TAA”) in their application to payroll tax imposed under the Payroll Tax Act 1971 (Qld) (“PTA”).

[2] Under s 9(1) of the PTA, wages paid or payable by an employer for services performed or rendered by an employee may be liable to payroll tax.  However, s 14(2) of the PTA provides that the wages liable to payroll tax do not include wages paid or payable by a “charitable institution” to a person where the person is working exclusively for particular relevant purposes.  Section 14(9) defines “charitable institution” to mean an institution registered under the TAA, Pt 11A, other than a university or university college.

[3] The dispute between the parties is over the respondent’s refusal (in 2013) to register the appellant as an institution under Pt 11A of the TAA from 1 December 2007.

[4] There are two relevant questions thrown up by the statutory requirements for registration.  First, under its constitution, are the appellant’s income and property used solely for promoting its objects and is no part of its income or property to be distributed, paid or transferred by way of bonus, dividend or other similar payment to its members?  Secondly, when the respondent registers an institution as a charitable institution, can he or she state a date of registration in the notice of registration that is before the date when Pt 11A came into operation?

Facts

[5] The appellant is a company limited by guarantee.  It was incorporated in 1934.

[6] In the period relevant to these proceedings, the appellant had two differing constitutions.  The earlier constitution was adopted and effective until 27 November 2012 (“Former Constitution”).  The later constitution was adopted effective from 27 November 2012 (“November 2012 Constitution”).

[7] Each of the constitutions had an objects clause in cl 3.1 as follows:
 

November 2012 Constitution

Former Constitution

(a) to promote and advance in a non-politically aligned manner:

(i)trade, commerce and industry; and

(ii) the interests of persons engaged in trade, commerce and industry,

in the State of Queensland, any other State or Territory of Australia, and internationally;

(b)  to promote or oppose legislative and other regulatory measures which affect the interests of Members, trade, commerce and industry;

(c) to influence government policy in the interests of Members, trade, commerce and industry;

(d)to promote public discussion of issues relating to trade, commerce and industry;

(e)to promote and advance the interests of employers and to encourage amicable relations amongst employers;

(f)to improve relations between employers and employees;

(g)to improve relations between persons at each level in the chain of production including producers, manufacturers, distributors, retailers and consumers;

(h)to represent Members and employers before any court, tribunal, commission or committee;

(i)to assist and advise Members and employers regarding workplace health and safety and any other issues relating to the conduct of trade, commerce and industry;

(j)to collect, organise and disseminate information relating to trade, commerce, industry and the objects of the Chamber. This may include establishing library collections, publishing literature, establishing internet sites and electronic media, and making or providing media comment;

(k)to promote and assist in the export and exhibition of Queensland and Australian goods and services;

(l)to encourage the study of trade, commerce and industry, including the undertaking or apprenticeships and traineeships;
 

(m) to:

(i)establish scholarships for educational purposes; and

(ii) award prizes for achievement in education, trade or commerce or industry;

 

(n) to establish or assist in establishing:(i) colleges or universities;

(i)industrial or scientific museums; or

(ii)organisations which conduct scientific or industrial research;

 

(o)to teach, test by examination the competence of persons, and issue certificates certifying the competence of persons, in fields relating to trade, commerce and industry;

 

(p)to act as mediator or arbitrator in settling disputes between Members or employees and their employees;

 

(q)to amalgamate or affiliate with, or assist any other person, whose objects are similar to the Chamber’s;

 

(r)to provide or facilitate the provision of benefits and discounts to Members with respect to the acquisition of goods and services;

 

(s)to assist or aid any charitable, educational or public purpose;

 

 

(t)to encourage social exchanges between Members; and

 

(u)such other matters as the Board, acting in the best interests of the Chamber and consistent with the existing Objects, shall determine from time to time.

(a) to promote and advance in a non-politically aligned manner:

(i)trade, commerce and industry; and

(ii) the interests of persons engaged in trade, commerce and industry,

in the State of Queensland, any other State or Territory of Australia, and internationally;

(b) to promote and advance the interest of employers and to encourage amicable relations amongst employers;
 

(c) to improve relations between employers and employees;

 

(d) to improve relations between persons at each level in the chain of production including producers, manufacturers, distributors, retailers and consumers;

 

(e) to promote or oppose legislation and other regulatory measures which affect the interests of Members, trade, commerce and industry;

 

(f) to influence government policy in the interests of Members, trade, commerce and industry;

 

(g) to promote public discussion of issues relating to trade, commerce and industry;

 

(h) to represent Members and employers before any court, tribunal, commission or committee;

 

(i) to assist and advise Members and employees regarding workplace health and safety and any other issues relating to the conduct of trade, commerce and industry;

 

(j) to collect, organise and disseminate information relating to trade, commerce, industry and the objects of the Chamber.  This may include establishing library collections, publishing literature, establishing internet sites, and making television and radio broadcasts;

 

(k) to promote and assist in the export and exhibition of Queensland and Australian goods and services;

 

(l) to encourage the study of trade, commerce and industry, including the undertaking of apprenticeships and traineeships;

 

(m) to:

(i)establish scholarships for educational purposes; and

(ii) award prizes for achievement in education, trade or commerce or industry;

 

(n) to establish or assist in establishing:

(i) colleges or universities;

(ii)industrial or scientific museums;

or

(iii)organisations which conduct scientific or industrial research;

 

(o)to teach, test by examination the competence of persons, and issue certificates certifying the competence of persons, in fields relating to trade, commerce and industry;

 

(p)to act as mediator or arbitrator in settling disputes between Members or employees and their employees;

 

(q)to amalgamate or affiliate with, or assist any other person, whose objects are similar to the Chamber’s;

 

(r)to encourage social exchanges between members;

 

(s)to provide or facilitate the provisions of benefits and discounts to Members with respect to the acquisition of goods and services;

 

(t)to assist or aid any charitable, educational or public purpose.

 

[8] Further, cl 6 of the constitutions provided:

“6.PROFIT AND ASSET DISTRIBUTION

6.1The Chamber must not distribute any profits of the Chamber by way of dividend or otherwise, to Members.

6.2Clause 6.1 does not prevent:

(a)payment of remuneration to Members who in their capacity as officers, employees, contractors or suppliers of the Chamber have provided goods or services to the Chamber;

(b)payment of rent to Members who have let property to the Chamber;

(c)payment of interest to Members who have lent money to the Chamber; or

(d)reimbursement of expenses to Members who have with the Chamber’s authority expended money in furtherance of the Chamber’s objects.

6.3If the Chamber is wound up, the remaining assets after satisfaction of all debts and liabilities will be given to an organisation having objects similar to the Chamber’s as determined by members of the Chamber in General Meeting.”

[9] On 30 November 2012, the appellant made a two part application to the respondent.  First, it applied for registration as an institution under Pt 11A of the TAA from an effective date of registration of 1 December 2007.  Secondly, it applied for a refund of payroll tax paid for the period from 1 December 2007 to 30 November 2012 (on the basis of the registration sought).  In effect, it amounted to an application for reassessment of the appellant’s assessments for payroll tax during that period.

[10] On 8 April 2013, the respondent decided to refuse the application.  There were two reasons.  Only part of one of them is now relevant.  It was that the appellant’s constitution did not satisfy the requirements of s 149C(5)(a) and (b) of the TAA for registration as an institution under Pt 11A.  The decision did not deal with the date of registration.

[11] Section 149C of the TAA provided as follows:

149CRestrictions on registration

(1) The commissioner may register the institution only if it is an institution mentioned in subsections (2) to (4). 

(2) Each of the following may be registered—

(a) a religious body or a body—

(i) that is controlled by, or associated with, a religious body; and

(ii) whose principal object and pursuit is the conduct of activities of a religious nature;

(b) a public benevolent institution;

(c) a university or university college;

(d) a primary or secondary school;

(e) a kindergarten;

(f) an institution whose principal object or pursuit is the care of the sick, aged, infirm, afflicted or incorrigible persons;

(g) an institution whose principal object or pursuit is the relief of poverty;

(h) an institution whose principal object or pursuit is the care of children by—

(i) being responsible for them on a full-time basis; and

(ii) providing them with all necessary food, clothing and shelter; and

(iii) providing for their general wellbeing and protection. 

(2) Also, an institution may be registered if its principal object or pursuit—

(a) is fulfilling a charitable object or promoting the public good; and

(b) is not a leisure, recreational, social or sporting object or pursuit.

(4)In addition, the trustees of an institution mentioned in subsection (2) or (3), other than a university or university college, may be registered. 

(5) However, an institution, other than an institution or trustee of an institution mentioned in subsection (2)(a) or (c), must not be registered unless, under its constitution, however described—

(a)its income and property are used solely for promoting its objects; and

(b) no part of its income or property is to be distributed, paid or transferred by way of bonus, dividend or other similar payment to its members; and

(c) on its dissolution, the assets remaining after satisfying all debts and liabilities must be transferred—

(i)to an institution that, under this section, may be registered; or

(ii) to an institution the commissioner is satisfied has a principal object or pursuit mentioned in subsection (3)(a); or

(iii)for a purpose the commissioner is satisfied is charitable or for the promotion of the public good.”

[12] Section 149G of the TAA provided as follows:

149G Notice of registration

(1) On registration of an institution, the commissioner must give notice to the institution of its registration.

(2) The notice—

(a) must state the date of registration; and

(b) may include any other information about the registration.

(3) The date of registration may be before the date of the application or notice.”

[13] On 27 June 2013, the appellant objected to the decision, setting out in detail the grounds of the objection and submissions in support of allowing it.  In effect the objection also sought reassessment of the appellant’s later assessments of payroll tax, including those for April and May 2013.

[14] On 14 November 2013, the respondent disallowed the objection.  The reasons were that the appellant’s constitution did not satisfy the requirements of s 149C(5)(a) and (b) of the TAA for registration as an institution under Pt 11A.  The decision to refuse the application for registration and the assessments for the whole of the relevant period were confirmed (that is the respondent confirmed the decision not to reassess them).

[15] The appellant appeals from the disallowance of the objection. In effect it seeks a reassessment of the assessments of liability to payroll tax from 1 December 2007 to 31 May 2013 together with a payment of interest on those amounts.

First question: “unless under its constitution”

[16] Part 11A of the TAA provides for part of the statutory scheme for exemption from payroll tax of wages paid by a “charitable institution”. It commenced on 30 June 2010.  Section 98 and Schedule 3 of the Land Tax Act 2010 (Qld) made the relevant amendments.  Before 30 June 2010, specific provisions of the PTA provided for a similar exemption from payroll tax of wages paid by an "exempt charitable institution". It will be necessary to say more about the replaced provisions in due course. 

[17] The mischief[1] which the 2010 Act was intended to remedy was that until 30 June 2010 there were separate and differing provisions for the exemption of charities from State taxes in the Duties Act 2000 (Qld), Land Tax Act 1915 (Qld) and the PTA.  Part 11A of the TAA was intended to replace them with a single uniform system applying to charitable institutions under each of those Acts.  According to the explanatory notes to the Land Tax Bill 2010, Pt 11A reflected the arrangements for registration of institutions under the Duties Act 2001 (Qld) provisions.

[18] It is common ground that the appellant is an institution mentioned in s 149C(3) of the TAA.  Such an institution may be registered under Pt 11A,[2] unless they must not be registered under s 149C(5) of the TAA.

[19] The issues between the parties as to the application of s 149C(5) are narrowed to whether s 149C(5)(a) and (b) are satisfied. It is common ground that s 149C(5)(c) is satisfied.

[20] The respondent disallowed the appellant’s objection to the respondent’s refusal to register the appellant as an institution under Pt 11A on the ground that the appellant did not satisfy the conditions required by s 149C(5)(a) and (b) that:

“…under its constitution…:

(a)its income and property are used solely for promoting its objects; and

(b) no part of its income or property is to be distributed, paid or transferred by way of bonus, dividend or other similar payment to its members.”

[21] In particular, the respondent made that decision because there were no express provisions of the appellant’s constitution stating those conditions.

[22] The appellant submits that s 149C(5) does not require such express provisions. 

[23] The appellant submits that the phrase “unless… under its constitution” in s 149C(5) should be construed as equivalent to “unless pursuant to its constitution”, so that if the appellant’s income and property are used solely for promoting its objects and that is the legal effect of what the constitution authorises to be done, the requirement in par (a) is satisfied.  Similarly, the appellant submits that if the effect of what is provided in the constitution is that no part of its income or property is to be distributed, paid or transferred by way of bonus, dividend or other similar payment, the requirement in par (b) is satisfied.

[24] The respondent submits that the phrase “unless… under its constitution” should be construed as equivalent to “unless its constitution provides that”, so that nothing less than express provisions setting out the conditions in pars (a) and (b) will do.

[25] The task of statutory construction must always begin with a close examination of the statutory text.[3]  Section 149C(5) operates to specify mandatory requirements that must be satisfied before an institution can be registered as a charitable institution.  An institution “must not be registered unless, under its constitution” three conditions are satisfied, as set out in pars (a), (b) and (c).

[26] Paragraphs (a) and (b) use different verb forms.  In par (a), the condition is that “its income and property are used” for a purpose.  Putting the contextual effect of "under its constitution" to one side, the meaning of the verb form “are used” is that the use presently exists.  In contrast, in par (b) the condition is that “no part of its income or property is to be” dealt with in the ways stated.  The meaning of that verb form is that the condition is in the future.

[27] However, in my view, it is unlikely that par (a) is intended to operate only upon a presently existing state of affairs. There are several contextual reasons.  First, the condition in par (a) is to operate as a qualifying condition before an institution can be registered as possessing the particular status of a charitable institution for tax purposes, by reference to its constitution. Whether or not the income and assets are being used in a particular way in fact is a matter of fact.  That state of fact exists or not irrespective of what the constitution either authorises or provides.  Secondly, par (b) operates in the future.  Thirdly, in par (c) the condition is that the assets “must be transferred” in a particular way.  The ordinary meaning of that verb form is that the condition is to operate in the future.  Fourthly, s 149A(2)(b)(i) of the TAA requires that an application for registration must be supported by a copy of the institution's constitution.  It does not require evidence that the institution in fact has been complying with its constitution as to par (a). It follows, in my view, that par (a) should be construed as providing that under the institution's constitution the institution's income and assets are to be used solely for promoting its objects.

[28] The preposition “under” is in such common usage, with a meaning that depends on the context, that it may seem unhelpful to refer to its ordinary meaning.  Of the numerous common dictionary definitions of “under” the most useful are that “under” may mean “in accordance with” or “authorised or attested by”.[4]  Fowler’s Modern English Usage,[5] says that there is a fairly clear distinction between “under” and “below” because the latter is concerned with differences in level while the former “is concerned with superposition and subjection, and suggests some interrelation”.

[29] The submissions of the parties do not really engage one another at this level.  Both sets of submissions construe the phrase “unless, under its constitution” as requiring that the conditions provided for in pars (a) and (b) must be in accordance with the applicant’s constitution.  The point of departure between them is the respondent’s submission that, in addition, the constitution must expressly provide for those conditions.

[30] A natural observation to make, when closely analysing a text of this kind, is that if the drafter intended to require that the constitution must contain express provisions, it would have been simple enough to say so.  For example, it would have been simple enough to provide in s 149C(5) that an institution must not be registered “unless under its constitution, however described, provides that…”.

[31] The appellant deploys a contextual submission about the statutory history of exemption of charitable institutions from payroll tax.  Before the introduction of Pt 11A of the TAA, s 14(1)(f) of the PTA operated to exclude some institutions from the defined category of an “exempt charitable institution” for the purposes of that Act by providing that:

“(f)   an institution is not an [exempt charitable institution]… unless the constitution, by whatever name called, of that institution, provides-

(i) that the income and property of the institution is [sic] to be used and applied solely for the promotion of the objects of the institution and that no portion of the income or property will be distributed, paid or transferred by way of dividend, bonus on otherwise amongst it members; and

(ii) that on dissolution the assets of the institution remaining after satisfaction of all liabilities must be transferred to some institution having similar objects…” (emphasis added)

[32] Section 14(1)(f) was repealed by the amendments made by s 98 and Schedule 3 of the Land Tax Act 2010 (Qld), commencing on 30 June 2010.   In other words, s 149C(5) of the TAA replaced of s 14(1)(f) of the PTA.  But the text of s 149C(5) does not expressly provide, as the former s 14(1)(f) did, that the relevant conditions must be things that the constitution “provides”.[6]

[33] As the plurality judgment in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory)[7] made clear, “[h]istorical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text.”[8]  Nevertheless, in the application of the common law of statutory interpretation in this country, it is permissible to look to the statutory history of a provision as relevant context.  Cooper Brookes (Wollongong) Proprietary Limited v The Commissioner of Taxation of the Commonwealth of Australia[9] is identified as being in the vanguard of the development of the modern approach to statutory interpretation.[10]  It is an example of a case where the history of the provision was examined to assist in ascertaining its meaning.  It was also a case concerned with the construction of a detailed qualifying provision of a complex taxation statute.

[34] However, the context provided by a replaced provision should be approached with some caution.  For example, a newer Act may adopt similar but different expressions because of a more modern drafting style.   Section 14C of the Acts Interpretation Act 1954 (Qld) (“AIA”) expressly provides that if a provision enacted later appears to express the same idea in different words for the purpose of implementing a different legislative drafting practice, such as the use of a clearer or simpler style, the ideas must not be taken to be different merely because different words are used.

[35] In that respect, it may be useful to have regard to the context of the use of the relevant words or expressions elsewhere in the Act under consideration.  In the TAA, “under” is used in many sections, particularly to identify where a stated condition exists or action takes place under a revenue law or assessment.  However, “provides” is not generally used.  The exception is s 78, which refers to a law that “provides” for certain things to be a recognised law of the State.

[36] The interpretation of s 149C(5) that will best achieve the purpose of the Act is to be preferred to any other construction: s 14A(1) of the AIA.  However, the purpose of a taxation provision is often to delineate between the conditions that bring a taxpayer or transaction to tax, on the one hand, or exempt them from tax on the other hand.  In such a context, there is often no general purpose of the Act of assistance.[11] The answer must be driven by the statutory text in the context of the rest of the Act and any relevant extrinsic materials.

Corporations Act

[37] Both parties sought to derive assistance for their submissions from the law of corporations.  The constitution of the appellant operates under the Corporations Act 2001 (Cth) (“CA”).  In particular, both parties referred to provisions of the CA and cases dealing with the capacity and powers of a company and restrictions applying thereto.

[38] Before turning to those arguments and provisions, it is relevant to note that the Corporations Act 2001 (Cth) is not the only relevant legislative context for the constitutional power of a body corporate that may be registered as an institution under Pt 11A.  For example, the Associations Incorporation Act 1981 (Qld) provides for the incorporation of an association which might qualify under Pt 11A of the TAA. 

[39] Under the CA, it is no longer necessary that a company limited by (shares or) guarantee must have a constitution, in the way that a company once was required to have a memorandum of association.[12]  A company, including a “company limited by guarantee”,[13] can be registered under s 112 of the CA, but registration does not require a constitution: s 117 of the CA.  Under s 134 of the CA, a company’s internal management may be governed by the provisions of the Act that apply to the company as replaceable rules, by a constitution or a combination of both.

[40] Section 136 of the CA provides for the means by which a company may adopt a constitution, either before or after the company is registered.  The appellant was not registered under the CA.  It was originally registered on 5 October 1934. At that time the Companies Act 1931 (Qld) provided for the registration of a company in Queensland.  That Act required a company to have a memorandum and articles of association.  The transitional provisions of the successive iterations of companies legislation between then and 1998 continued and applied that constitutional structure.  As at 30 June 1998, the appellant was taken to be registered as a company under the “old corporations legislation”[14] with its memorandum and articles of association operating. From 1 July 1998, s 1415 of the then applying Corporations Law provided that the memorandum and articles of association of a pre-existing company were to be taken to make up its constitution after that date. 

[41] The transitional provisions of the CA now provide for the constitutional composition of a company that was registered before the CA came into force. Section 1378 of the CA continues registration of the company.  The complex provisions of Pt 10.1 of the CA continue the effect of the now repealed old corporations legislation, including s 1415 of the Corporations Law.

[42] There is thus no legal requirement that a company limited by guarantee have a constitution.  There are, however, restrictions imposed by the CA upon the internal management of a company limited by guarantee.  Section 124(1) of the CA provides that such a company does not have the power to issue shares.  Under s 254SA of the CA, it is now provided that a company limited by guarantee must not pay a dividend to its members.  That section applies to companies incorporated after 28 June 2010.

[43] In summary, there are no specific provisions of the CA that income or property of a company limited by guarantee are to be used solely for promoting its purposes or objects or that no part of the income and property of a company limited by guarantee is to be distributed, paid or transferred to members, except for the effect of the sections mentioned.

[44] The parties made submissions as to the effect of s 124 of the CA.  Sections 124 and 125 of the CA provide:

“124Legal capacity and powers of a company

(1) A company has the legal capacity and powers of an individual both in and outside this jurisdiction. A company also has all the powers of a body corporate, including the power to:

(a)  issue and cancel shares in the company;

(b)  issue debentures (despite any rule of law or equity to the contrary, this power includes a power to issue debentures that are irredeemable, redeemable only if a contingency, however remote, occurs, or redeemable only at the end of a period, however long);

(c)  grant options over unissued shares in the company;

(d)  distribute any of the company's property among the members, in kind or otherwise;

(e)  grant a security interest in uncalled capital;

(f)  grant a circulating security interest over the company's property;

(g)  arrange for the company to be registered or recognised as a body corporate in any place outside this jurisdiction;

(h)  do anything that it is authorised to do by any other law (including a law of a foreign country).

A company limited by guarantee does not have the power to issue shares.

Note: For a company's power to issue bonus, partly--paid, preference and redeemable preference shares, see section 254A.

(2) A company's legal capacity to do something is not affected by the fact that the company's interests are not, or would not be, served by doing it.

(3)  For the avoidance of doubt, this section does not:

(a)authorise a company to do an act that is prohibited by a law of a State or Territory; or

(b) give a company a right that a law of a State or Territory denies to the company.

125Constitution may limit powers and set out objects

(1)  If a company has a constitution, it may contain an express restriction on, or a prohibition of, the company's exercise of any of its powers. The exercise of a power by the company is not invalid merely because it is contrary to an express restriction or prohibition in the company's constitution.

(2)  If a company has a constitution, it may set out the company's objects. An act of the company is not invalid merely because it is contrary to or beyond any objects in the company's constitution.”

[45] The respondent submits that because s 124(1)(d) of the CA provides that a company may distribute any of the property of the company’s property among its members, in kind or otherwise, and s 124(2) of the CA provides that the company’s power to do so is not affected by the fact that it is not in the company’s interests, the appellant has the power to distribute any of its property among the members in kind or otherwise.

[46] Section 124 of the CA is directed to capacity and power in the sense of the now abolished ultra vires doctrine in company law.  It removes the invalidity that formerly attached to an ultra vires exercise of power by a company.  It does not make every exercise of power to distribute a company’s property lawful.  It does not speak to abuse of power or contravention of the prohibitions contained in the CA or other Acts or laws.  The difference lies in the validity of a transaction which contravenes a restriction in the company’s constitution or imposed on the exercise of a power of the company by statute or the common law or equity.  Because of s 124, any contravention of that kind is not void because it was ultra vires.  That does not mean that the contravention is generally lawful. 

[47] Whether or not a company has an express provision in its constitution positively requiring that the company’s income and property be applied for a particular purpose or negatively prohibiting the use of its income and property for other purposes, the effect of s 124 of the CA is that a contravention of the provision does not make a contravening transaction void. Once that point is reached, it is difficult to accept that the operation of the requirements under s 149C(5)(a) or (b) of the TAA is necessarily informed by the extent of the corporate capacity conferred under s 124 of the CA.

[48] The respondent submits that the appellant as a company limited by guarantee can capitalise profits, because s 254SA of the CA provides that a company can capitalise profits.  That may be accepted in the sense of the accounting division between capital represented by the assets included in the balance sheet of the company and the profits derived and included in the company’s profit and loss statement that typically form the company’s financial statements.  However, it is not true that the appellant can do so by the issue of shares.  A company limited by guarantee is prohibited from issuing shares. 

[49] The respondent did not identify how s 245SA of the CA assists in finding the answers to the first question.  In my view, a capitalisation of profits does not constitute “use” of a company’s income or profit’s under s 149C(5)(a) of the TAA.  Nor would it constitute “distribution, payment or transfer… to” any members under s 149C(5)(b) of the TAA.

Limits of proper exercise of corporate power

[50] The parties’ submissions also ranged fairly widely about the principles relating to the maintenance of capital that used to apply to the exercise of a company’s powers under the doctrines known as the rule in Houldsworth v City of Glasgow Bank[15] and as the rule in Trevor v Whitworth.[16]

[51] It is unnecessary to discuss either case or “rule” in any detail.  Houldsworth decided that the contract now contained in s 140 of the CA, “impliedly restricted the use of the company’s property to the achievement of the company’s objects and those objects would not include the payment of damages to a member who had been induced by fraud to become a member.”[17]  Trevor v Whitworth decided that a company limited by shares lacks the power to purchase its own shares, which would create the appearance of a greater issued share capital than is represented by the company’s assets.[18] 

[52] It should not be overlooked that both “rules” were decisions about the limits of corporate power in the context of the legislation providing for the incorporation of companies at the times when the cases establishing the rules were decided.

[53] The principle and scope of the decision in Houldsworth has long been controversial.  As well, it has been affected by statutory change.  The High Court has had two occasions to consider its modern scope and basis in Webb Distributors (Aust) Pty Ltd v State of Victoria[19] and Sons of Gwalia Ltd v Margaretic.[20]

[54] The development of the principle that informed Trevor v Whitworth and the statutory provisions that applied when it was decided and that were introduced later is summarised in the following passage from Pilmer v The Duke Group Ltd (in liq):[21]

“The need to maintain capital led to the conclusion that a limited company could not lawfully acquire its own shares - again because creditors are ‘entitled to assume that no part of the capital which has been paid into the coffers of the company has been subsequently paid out, except in the legitimate course of its business’. It led to the statutory prohibition upon companies purchasing, dealing in, taking security over, or giving financial assistance in connection with the acquisition of, their own shares.”[22] (footnotes omitted)

[55] There is no longer a blanket prohibition against a company limited by shares purchasing its own shares.  That subject matter is now extensively regulated by provisions of the CA that had no counterpart when Trevor v Whitworth was decided.  There are detailed provisions permitting and regulating a reduction of share capital, share buy-backs and otherwise dealing with transactions affecting share capital in Ch 2J of the CA.  The CA also now operates without any requirement that a company limited by shares must have a nominal share capital.  Shares of a company have no par value: s 254C of the CA. That too was not the case when Trevor v Whitworth was decided. 

[56] There is a wider relevant principle regulating the affairs of companies, including a company limited by guarantee. The powers of management of the business of a company (not in liquidation) are held by the board of directors or equivalent.[23] The directors exercise those powers as a constitutional organ of the company, usually to the exclusion of the powers of the general meeting of members.[24]  The powers of management include the powers to use the company’s income and property and the powers, if any, to distribute pay or transfer income or property to members. For example, see s 198A of the CA (a replaceable rule), under which the directors may exercise all of the powers of the company except any powers that the CA or the company’s constitution (if any) requires the company to exercise in general meeting. 

[57] But neither the board of directors on behalf of a company nor the company in general meeting has unlimited powers.  The relevant constraint is that the company cannot lawfully give away its property, including income, for any unauthorised purpose.  It would be a breach of the directors' duties to do so in exercising their powers of management.[25]  Nor do the shareholders or members have that power. The point was made by McPherson J in ANZ Executors and Trustee Company Limited v Qintex Australia Ltd (receivers and managers appointed):[26]

 

“But a shareholder’s freedom to exercise his vote as he pleases does not mean that in law he can accomplish everything that takes his fancy. The right to vote is, it is true, a species of property that can be exercised at will, and it may confer control over the affairs and property of the company; but it does not follow that the holder may always do whatever he pleases with the corporate assets. For they are the property of the company and not of the shareholder, who has no legal or equitable interest in them: Macaura v. Northern Insurance Co. [1925] A.C. 619, at 626. That is the inescapable consequence of treating the company in law as an entity distinct from its members. For this reason there are some things that shareholders cannot do.”[27]

[58] This is the substance of a point sought to be made by the appellant about the income and property of the appellant being used solely for its objects.  If a company had no particular objects, then it might be said that the legal capacity and powers of an individual conferred by s 124 of the CA will justify giving away its income and property and not applying them to any particular objects, whether solely or otherwise.  But I do not have to consider that question.  The appellant had the objects set out in its constitutions.

[59] For the purposes of these proceedings, the relevant finding, as a matter of mixed fact and law, is that the appellant was required to use its income and property solely for promoting its objects.  The question remains whether that is under its constitution within the meaning of s 149C(5) of the TAA where there is no provision of the constitution that expressly says so.

Cases

[60] The appellant relied on a number of cases where “under” has been construed as equivalent to “pursuant to” in particular contexts: re Trevanion,[28] R v Clyne; ex p Harrap,[29] Gilbert v Western Australia,[30] Chan v Cresdon,[31] Energy Resources of Australia Ltd v Federal Commissioner of Taxation,[32] TAB Ltd v Racing Victoria Ltd[33] and Davis v City North Infrastructure Pty Ltd.[34]

[61] The respondent, in turn, relied on some of those cases and a number of other cases where “under” has been construed: Federal Commissioner of Taxation v Sara Lee Household and Bodycare (Australia) Pty Ltd[35] and Griffith University v Tang.[36]

[62] Other cases can only be illustrative.  They are not of sufficient assistance in construing s 149C(5) of the TAA to warrant setting out passages taken from them in these reasons.

Conclusions on the first question

[63] In my view, the better conclusion upon the first question is that s 149C(5) of the TAA does not require that the constitution of the appellant as an institution must expressly provide that its income and property are to be used solely for promoting its objects or that no part of its income or property is to be distributed, paid or transferred by way of bonus, dividend or other similar payment to its members. 

[64] The ordinary meaning of “unless under the constitution…” does not require an express provision.  It includes a case where the effect of the constitution in the framework of the relevant statutory and common law is that those conditions are satisfied.

[65] Further, I am not satisfied that the change of the text from the now repealed s 14(1)(f) of the PTA to s 149C(5) of the TAA is to be explained by a more modern drafting practice or style but without any change of ideas.

[66] Thus, the conditions under s 149C(5)(a) and (b) of the TAA might exist under the appellant's constitution without being expressly specified in it, if the legal effect of the constitution's provisions is that those conditions are met.

[67] Turning to s 149C(5)(a) of the TAA, the purpose of the paragraph is that the income and property of the institution are to be solely devoted to its objects.   Nothing in the appellant’s constitution expressly deals with whether its income and property are to be used solely for promoting its objects.  However, that is not a surprise, since it is the law in any event. Statute, common law and equity relating to a company's constitutional powers operate consistently with that.  Thus, the appellant’s constitution has the effect that its income and property are to be used solely for promoting its objects.  To the extent that it might be relevant, as a matter of fact, the appellant has used its income and property solely for promoting its objects.

[68] The purpose of s 149C(5)(b) of the TAA is that no part of the appellant’s income or property is to be distributed, paid or transferred by way of bonus, dividend or other similar payment to its members.  Clause 6.1 of the appellant’s constitution prohibits the distribution of profits.  It does not expressly deal with income or property as such, although profits will be derived from cash-flow, including income, and a payment is a transfer of property. 

[69] Although a payment may be made to a person who is a member of the appellant as provided for in cl 6.2 of the constitution, none of those payments is one made to the payee as a member or by reason of membership.  The payments may be made for remuneration for goods or services supplied, rent, interest or reimbursement of expenses made with authority and in furtherance of the objects of the appellant.  In each case the appellant's obligation to make the payment is based in consideration moving from the payee.  Such a payment does not constitute a distribution, payment or transfer by way of bonus, dividend or other similar payment to a member.

Second question: date of registration before 30 June 2010

[70] If the appellant was entitled to be registered as an institution under Pt 11A of the TAA, was the respondent empowered to state a date of registration in the notice of registration before 30 June 2010?

[71] The appellant submits that nothing prohibits the respondent from doing so and that the text of s 149G(3) of the TAA does not provide for a limit on a date of registration before the application for registration or notice of registration.  The respondent submits that although a date before the date of the application or notice may be given, the date must not be before 30 June 2010 when the relevant amendments including s 149G of the TAA commenced.

[72] In my view, the structure or overall scheme of the amendments made to the imposition of payroll tax when Pt 11A was introduced to the TAA on 30 June 2010 is significant.

[73] First, s 14(1) of the PTA was repealed. It had provided for the exemption of an “exempt charitable institution” from liability to payroll tax on wages.  Secondly, the definition of “charitable institution” in s 14(9) of the PTA replaced s 14(1).  As a result of the change, the operation of the exemption from liability to payroll tax on wages as a charitable institution turns on registration under Pt 11A of the TAA as an institution. Thirdly, s 168 of the TAA, operating as a transitional provision, affected the institutions registered under Pt 11A of the TAA.  Under s 168, an institution that had received an exemption from payroll tax under the PTA before 30 June 2010 because it was an exempt charitable institution under the PTA is taken to be registered under Pt 11A.

[74] As at 30 June 2010, these provisions were intended to transition from the old “exempt charitable institution” regime to the new “charitable institution” regime after that date.  In that context, s 149G of the TAA provides that the date of registration under Pt 11A of the TAA may be a date before the date of application for registration.  No earliest date is specified.

[75] The appellant submits that the earliest date is five years before the application for registration.  The respondent submits that the earliest date is 30 June 2010. The respondent’s submission is that since Pt 11A and the relevant amendments to the PTA which applied it to the imposition of payroll tax commenced on 30 June 2010, s 149G of the TAA should not be construed so as to operate in relation to the imposition of payroll tax at any earlier date.  

[76] On 29 June 2010, the wages liable to pay payroll tax did not include the wages paid or payable by an “exempt charitable institution” to a person during a period when the person was engaged exclusively in the relevant kinds of work.  From 30 June 2010, the wages liable to pay payroll tax did not include the wages paid or payable by a “charitable institution” to a person engaged exclusively in the relevant kinds of work. 

[77] Despite the apparent similarity between the two regimes, there are differences between the requirements to qualify as an “exempt charitable institution” in the period before 30 June 2010 and the requirements to be registered anew as an institution under Pt 11A after 30 June 2010. 

[78] That point alone is an answer to the question whether registration under Pt 11A of the TAA can antedate 30 June 2011.  The effect of registration under Pt 11A is that an institution is a “charitable institution”, not that it is an “exempt charitable institution”.  Until 30 June 2010, it was only the wages of an “exempt charitable institution” that could be exempted from the liability to payroll tax under the PTA.  There is no provision that if an institution is registered under Pt 11A it is to be taken to be an “exempt charitable institution” for the purposes of the PTA as it operated prior to 30 June 2010. 

[79] In my view, even if the date of registration under Pt 11A were able to be a date before 30 June 2010, that would not avail the appellant.  The back-dating would still only have the effect of making the appellant a “charitable institution” as that defined expression operates in s 14(2) of the PTA, commencing on 30 June 2010.  That might affect whether relevant wages are not liable to payroll tax under s 14(2) of the PTA after that date.  But it will not make the appellant an “exempt charitable institution” under s 14(2) of the PTA as it operated before 30 June 2010.

[80] The disputed facts in this case illustrate the claimed difference.  There is some dispute whether the appellant was registered as an exempt charitable institution under s 14(1) of the PTA as it applied up to 30 June 2010.  Absent registration, the wages paid by the appellant were liable to payroll tax.  If the appellant was not in fact registered as an exempt charitable institution before 30 June 2010, it was not entitled to exemption from liability for payroll tax before that date.

[81] Nevertheless, the appellant submits that the ability to register an institution anew after 30 June 2010 can result in a registration which antedates 30 June 2010, and that the effect is that a liability to taxation which was imposed before that date would be retrospectively altered.

[82] Adapting the language from a case that considered legislation that had some similar operational characteristics to the present:

“In no sense did the changes made by the [2010 amendments] provide that at some date prior to the enactment of [the 2010 amendments] the law should be taken to have been that which it was not.  What those amendments did was to alter the law that was to apply… after the date on which those provisions of [the 2010 amendments] came into force.”[37]

[83] More generally, the effect of an amendment that alters the incidence of a tax does not ordinarily affect a right, privilege or liability acquired, accrued or incurred under the Act before amendment.[38]

[84] Another aspect of the extent of the retrospective change of rights and obligations which follow from the appellant’s construction of s 149G of the TAA is that the appellant claims to have the date of registration backdated to 1 December 2007.  That date is five years before the date of the appellant’s application for registration as an institution under Pt 11A of the TAA. 

[85] Section 21 of the TAA provides that:

 

21Time for reassessment decreasing liability for tax

 

(1) A reassessment decreasing a taxpayer’s liability for tax must be made in the limitation period.

(2)However, if, within the limitation period, the taxpayer asks for a reassessment to decrease the taxpayer’s liability, the reassessment may be made after the limitation period.

[86] The dictionary to the TAA defines “limitation period” as:

“…for a reassessment, means 5 years after the assessment notice for the original assessment was given.”[39]

[87] The appellant chooses 1 December 2007 as the date for registration because five years is the “limitation period” defined in the dictionary to the TAA.  Under s 21 of the TAA, a reassessment decreasing a taxpayer’s liability for tax must be made within the limitation period. That period may be extended to a date before the limitation period if the taxpayer asks for a reassessment to decrease the taxpayer’s liability for tax on a date within the limitation period.

[88] Section 21 operates as a limit on the commissioner’s power to make a reassessment.  Otherwise, under s 17 of the TAA, the commissioner may at any time make a reassessment of the taxpayer’s liability for tax.  As ss 18 and 19 of the TAA show, the power under s 17 is discretionary, not a matter of right on a taxpayer’s part.

[89] Section 20(2) of the TAA provides:

“(2) If any legislative change made after an original assessment is made affects the legal interpretations and assessment practices to be applied under subsection (1), the reassessment must, to the extent that the interpretations and practices are changed because of the legislative change, be made in accordance with the changed interpretations and practices.”

[90] The appellant relies on s 20(2) of the TAA as applying to the right it claims to a reassessment of the assessments for the period from 1 December 2007 to 30 June 2010.  Section 20(2) of the TAA is concerned with legal interpretations and assessment practices that are affected by any legislative change made after an original assessment.  However, in my view, an amendment of the substantive law as to the liability for tax made after an original assessment does not affect a legal interpretation or assessment practice, within the meaning of s 20(2) of the TAA.  As stated above, in my view, the appellant’s contentions necessarily involve a retrospective substantive amendment of its liability to payroll tax.

[91] As an alternative argument, the appellant sought to characterise the statutory changes made on 30 June 2010 as procedural.  In my view the amendments to s 14 of the PTA and the insertion of Pt 11A of the TAA were not procedural.  As previously mentioned, s 168 of the TAA applies to an exempt charitable institution that has received an exemption from payroll tax before 30 June 2010 and provides that it is taken to be a registered institution under Pt 11A.  Apart from that case, the new provisions do not simply substitute a new procedural process for registration.  The status of being registered as an institution under Pt 11A is a substantive element of exemption from payroll duty.  The changes made as to who was entitled to be registered altered the liability for payroll tax of some taxpayers in a substantive way. There is no scope for the principle that procedural statutes are intended to operate retrospectively in this case.

[92] Section 104 of the PTA provides for the application of provisions of the TAA to liabilities for payroll tax in 2004 that arose before the TAA was brought into effect.  The TAA did not then contain Pt 11A.  In my view, s 104 of the PTA says nothing about the possible retrospective operation of Pt 11A through choosing a date before 30 June 2010 under s 149G of the TAA.

Conclusion on the second question

[93] In my view, the respondent does not have the power to register the appellant under Pt 11A from a date before 30 June 2010.

Decision on the appeal

[94] For the foregoing reasons, in my view, the respondent erroneously disallowed the appellant’s objection to the respondent’s refusal to register the appellant as an institution under Pt 11A of the TAA.

[95] However, in my view, the respondent is correct in the contention that there is no power to register the appellant with a date of registration before 30 June 2010.

[96] Section 70C of the TAA provides that the Court must allow the appeal completely or partly or disallow it.  The powers of the Court are not otherwise specified but they are informed by the context that where fresh evidence is admitted under s 70B, the Court must either direct the respondent to reconsider the objection or the court may continue hearing the appeal if the respondent asks it to do so.  If the objection is reconsidered by the respondent, he or she has all the powers conferred by the TAA.  It follows that on appeal the Court may make the decision that the respondent ought to have made on the original disallowance of the objection.  See also Pryke & Ors v Commissioner of State Revenue.[40]

[97] In the present case, the appellant should have been registered from the date that would have been the date of notice of registration, or the date of the application for registration, or a date before either of those dates, but not before 30 June 2010.

[98] The parties made no detailed submissions about these alternatives.  In the result, in my view, the appropriate order is to remit the decision to the respondent for decision in accordance with these reasons. I will hear the parties as to any other orders.[41]

Footnotes

[1] Re Heydon’s Case (1584) 3 Co Rep 7a, 7b; 76 ER 637, 638.

[2] Taxation Administration Act 2001 (Qld), s 149C(1).

[3] Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503, 519 [39].

[4] For example, Macquarie Dictionary Online, definition “under” and Shorter Oxford English Dictionary, 6 ed, vol 2, p 3421.

[5] Fowler’s Modern English Usage, 2 ed, p 55.

[6] Compare, for example, s 128 of the Duties Act 2001 (Qld).

[7] (2009) 239 CLR 27, 47.

[8] (2009) 239 CLR 27, 47 [47].

[9] (1981) 147 CLR 297.

[10] See K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309, 315; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408.

[11] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27, 47-48 [51].

[12] That requirement existed in this State from the first general Companies Act 1863 (Qld), ss 5-8, until 1998 when the Corporations Law was amended to remove it by the Company Law Review Act 1998 (Cth), s 3 and Sch 1.

[13] As defined in the Corporations Act 2001 (Cth), s 9.

[14] As defined in the Corporations Act 2001 (Cth), s 1371.

[15] (1880) 5 App Cas 317.

[16] (1887) 12 App Cas 409.

[17] Ford H, Principles of Company Law, 4 ed, Butterworths, NSW, 1986, p 235.

[18] Trevor v Whitworth (1887) 12 App Cas 409, 414-415, 419, 423-424, 429, 433, 436, 439.

[19] (1993) 179 CLR 15.

[20] (2007) 231 CLR 160.

[21] (2001) 207 CLR 165.

[22] (2001) 207 CLR 165, [22].

[23] See, for example, Whitehouse v Carlton Hotels Pty Ltd (1987) 162 CLR 285, 290.

[24] Capricornia Credit Union v Australian Securities Investment Commission (2007) 159 FCR 69, 82-86.

[25] See the Corporations Act 2001 (Cth), s 181(1).

[26] [1991] 2 Qd R 360.

[27] [1991] 2 Qd R 360, 367.

[28] [1910] 2 Ch 538.

[29] [1941] VLR 200, 200-202.

[30] (1962) 107 CLR 494, 516.

[31] (1989) 168 CLR 242, 247-249, 256.

[32] (2003) 52 ATR 120.

[33] [2009] VSC 338.

[34] [2012] 2 Qd R 103, 112 [38].

[35] (2000) 201 CLR 520, 536 [37], 537 [42].

[36] (2005) 221 CLR 99, 130-131 [89].

[37] Chang v Laidley Shire Council (2007) 234 CLR 1, 33 [112].

[38] Acts Interpretation Act 1954 (Qld), s 20(2)(c).

[39] Taxation Administration Act 2001 (Qld), Sch 2.

[40] [2006] QSC 226, [43].

[41] As was done in Sojitz Coal Resources Pty Ltd v Commissioner of State Revenue [2015] QSC 9, [58].

Close

Editorial Notes

  • Published Case Name:

    Queensland Chamber of Commerce and Industry Ltd v Commissioner of State Revenue

  • Shortened Case Name:

    Queensland Chamber of Commerce and Industry Ltd v Commissioner of State Revenue

  • MNC:

    [2015] QSC 77

  • Court:

    QSC

  • Judge(s):

    Jackson J

  • Date:

    13 Apr 2015

Litigation History

No Litigation History

Appeal Status

No Status