Lombardo, Dante v. Commissioner of Taxation of the Commonwealth of Australia [1979] FCA 15

8/77

Io[4 IN THE FEDERAL COURT OF AUSTRALIA Loti.

nn i nt a ae en

) ) WESTERN AUSTRALIA DISTRICT REGISTRY) W.A.G. No.Gzo of 1% ~) GENERAL DIVISTON )

IN THE MATTER OF AN APPLTCATZON FOR

LEAVE TO APPLAL AGAINS. THE DeCts' PENDING IN [il SUPREME COURT OF

WESTERN AUSTRALIA.

BETWEEN: DANTE LOMBARDO

Appellant

AND:

THF CIVMISSTONEP OF Tax TELAT OF THe COMMON, WEALTII Gr oa

Respondent

3 March 1979. REASONS FOR JUDGMENT TOOHEY J. :

The taxpayer seeks leave to appeal against a decision of the Supreme Court of Western Australia dismissing his appeal fron a decision of a Board of Review confirming assesstcnts of jnconie tax made 1

respect of the years ended 30 June 1968, 1969 and 1972.

Wickham J. held that he had no jurisdicticn to

entertain the appeal, adding:

"... that should I be wrong iu that conclusion, I haic beard the cvidence of the partius and their witnesses eid T an

im a pesttion to iake a decision ... should the case go any further en] be recurned cto me for that purres-".

2.

Section 25(2) of the Federal Court of Australia Act 1976

enables an application for leave to appeal to be heard and determined by a single Judge or by a Full Court. The application came before me as a single Judge. This has some implications that I shall mention in these reasons. The merits of the application were canvassed at some length by counsel for the taxpayer and the Commissioner

and in view of the relative novelty of the application

I reserved my decision.

Section 196(5) of the Income Tax Assessment Act

1936, that makes leave to appeal necessary, docs not

define the circumstances in which leave may be given nor does it prescribe any criteria to be applied. Nevertheless there are provisions in the Act which throw some light