The two-step construction of s 74 of the Payroll Tax Act 1971 (Qld) from Scott and Bird remains the orthodox approach: the evaluative judgment under s 74(2) is a precondition to the discretion under s 74(1). However, a tribunal's use of weighing or balancing language does not necessarily indicate it failed to form the required evaluative judgment. Whether one factor (such as frequent and material commercial dealings) alone precludes satisfaction of the s 74(2) preconditions is a mixed question of fact and law that depends on the significance of that factor in conjunction with all other relevant factors.
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