Hope v. The Council of the City of Bathurst.

Judges:
Gibbs J
Stephen J
Mason J
Murphy J
Aickin J

Court:
High Court

Judgment date: Judgment handed down 20 June 1980.

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Gibbs and Stephen JJ.

We have had the advantage of reading the reasons for judgment prepared by our brother Mason and agree with them. There are a few additional observations which we wish to make.

The question whether the appellant's land came within the definition of ``rural land'' in sec. 118(1) of the Local Government Act, 1919 (N.S.W.) (as amended) involved a number of subsidiary questions, including the following:

• (a) Was the land used for carrying on a business?
• (b) If so, was it so used by the occupier and was the business that of grazing? and
• (c) If yes to all these questions, was it

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  ATC 4387

  wholly or mainly used for carrying on that business?

The learned judge of the Land and Valuation Court decided the first of these questions against the appellant, and for that reason did not proceed to decide the remaining questions, although, in relation to the second of the questions which we have stated, he said that he inclined to the view that a business of agistment is not a business of grazing.

For the reasons given by our brother Mason , the learned primary judge erred in law in deciding that the appellant's use of the land was not significant enough to bring it within the scope of the common or general meaning of the word ``business''. That was not the same as deciding that the manner in which the appellant used the land did not have ``a significant commercial purpose or character'', although the reasons of the learned primary judge suggest that he may not have fully appreciated the distinction between the two ideas. When Walsh J. in
Thomas v. F.C. of T. , 72 ATC 4094 at p. 4099 and (1972) 46 A.L.J.R. 397 at p. 401 , said that he left ``out of account the pine trees, the growing of which did not have... a significant commercial purpose or character'', it is perfectly clear that he did not intend to suggest that a commercial activity cannot be described as a business if it is small in scale. In that case Walsh J. was considering whether the appellant was a ``primary producer'' within sec. 157 of the Income Tax Assessment Act 1936 (as amended), that is, whether he was a person who carried on ``a business of primary production''. It was enough for Walsh J. to hold that, in the circumstances of that case, the appellant had set out to engage in producing macadamia nut trees and avocado pear trees as a business; that having been decided, it was immaterial whether the growing of pine trees was also done in the course of carrying on a business. In succinctly disposing of the issue of fact concerning the pine trees, Walsh J. was not purporting to make an exhaustive statement of the test to be applied in deciding what is a business.

It is unfortunate that it is not possible finally to dispose of this appeal, but the form of the stated case does not permit that to be done. Although it might have been possible to discuss in the abstract the question whether a business of using land for agistment is a business of grazing, it is quite impossible, having regard to the facts stated, to consider whether the appellant's land was ``wholly or mainly'' used for carrying on such a business.

We would answer the questions in the manner proposed by our brother Mason .