Point v. Federal Commissioner of Taxation.

Judges:
Barwick CJ
McTiernan J
Menzies J
Windeyer J
Walsh J
Gibbs J

Court:
High Court of Australia (Full Court)

Judgment date: Oral judgment given 10 December 1970, transcript made available 18 January 1971.

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Barwick C.J.: The appellant lodged an appeal against the dismissal of his appeal to this Court from a decision of a Board of Review in taxation and the allowance of cross-appeals of the respondent.

The appeal was brought pursuant to sec. 196(1) of the Income Tax Assessment Act. Included in his grounds of appeal is a ground that the Justice erred in refusing the application of the appellant to state for the opinion of the Full Court questions of law arising in the appeal from the Board of Review.

The respondent lodged an objection to the competency of the appeal. We have heard argument on behalf of the appellant in support of the competency of the appeal. That argument necessarily involved a submission that the decision of this Court in
Watson v. F.C. of T. (1953) 87 C.L.R. 353 was wrong and that it should now be overruled. In that case, this Court decided, after argument and consideration of the statutory provisions involved, that the decision of a Justice upon an appeal from a decision of a Board of Review in taxation was, in the terms of sec. 196(3) of the Income Tax Assessment Act, final and conclusive and that no appeal therefrom could be brought to the Full High Court.

There is no need, in my opinion, to canvass the arguments used by the appellant's counsel in seeking to persuade us that that decision was in error. It suffices, in my opinion, to say that that decision was made in 1953. It has been consistently acted upon during the intervening years and is a decision of a kind which, in my opinion, we ought not now to overrule. It is, of course, a decision upon a matter in respect of which the Parliament is able to make a different provision if it is minded so to do. I would not now overrule the decision in Watson v F.C. of T. (supra).

One other matter ought to be mentioned. It was argued that an appeal could be brought against the unwillingness of the Justice to state a case for the opinion of the Full Court. It was said that the Justice had refused an application. But in truth there could be no application in the proper use of that term. He made no order. The appellant had no right to have a case stated, nor had the Justice any duty under the statute to do so. The Statute affords, in my opinion, the Justice an opportunity, if he desires to avail himself of it, of being advised by a Full Court upon a matter of law arising in the appeal which he is hearing.

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ATC 4015

In my opinion, no appeal against his lack of any desire to seek such assistance can be brought. Therefore, quite apart from the decision in Watson v. F.C. of T. (supra), in my opinion an appeal based on the fact that the Justice did not wish to state a case would be incompetent.

The incompetence of the appeal from the order of the Justice may afford an additional reason for thinking that an appeal based on the particular ground which I have mentioned is not available.

In my opinion, the objection to competency should be allowed and the appeal of the appellant dismissed as incompetent.