Matthews v The Tap Inn [2015] SADC 108
Phrases in legislation like ‘is taken to be’ create a deeming provision, as this case notes (at [19]). Deeming provisions usually involve a ‘statutory fiction’ – a legal version of ‘let’s pretend’ – but only where the facts required are first made out7. They come in various guises – ‘deemed to be’, ‘taken to be’ and ‘as if’ are common deeming mechanisms.
The important point is that deeming provisions are strictly limited to the statutory purpose they are created for8. For more, see a Tax Institute paper by Andrew Sommer9. iTip – once you find a deeming provision, be careful only to give it an operation that is consistent with both its purpose and context10.
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Footnotes:
7 Plaintiff B9 [2014] FCAFC 178 (at [47-48]), Pearce & Geddes (at [4.45]).
8 Comber (1986) 10 FCR 88 (at 96), Howard [2012] FCAFC 149 (at [48]).
9 Sommer To deem or not to deem [2007] TIA GST Intensive paper.
10 cf GenexCorporation [1992] HCA 65 (at [20-21]).