caw eee ae EX TEMPORE IN THE PEDERAL COURT OF AUSTRALIA GENERAL DIVISION QUEENSLAND DISTRICT REGISTRY No. G29 of 1981 No. G30 of 1981 wee BETWEEN: BARBARA ROWE Applicant AND: THE COMMISSIONER OF TAXATION Respondent BETWEEN: HAROT.D GRAHAM ROWE Applicant AND: THE COMMISSIONER OF TAXATION Respondent REASONS FOR JUDGMENT ; 13 October 1981 I do not think either reservation of reasons. In Lombardo to which Mr Byrne, on me, which is reported Review 550, Mr Justic KEELY J. these applications for leave call for my decision or for any exhaustive v. Federal Commissioner of Taxation behalf of the applicants, has referred in (1979) 9 Australian Taxation e Toohey pointed out that s.196 of ment Act "does not define the circumstances the Income Tax Assess in which leave may be criteria to be applie by Mr Justice Lockhar given, nor does it prescribe any a". That observation has been followed t in Federal Commissioner of Taxation v. wen ae tars wr atee es mt a an Peers he athe we eine at eam, ee ee a em rent ee aon eee a el a ae sata tin tin RS ae ee alee ee ae Nixon (1979) 37 F.L.R. 135 - see also Mr Justice Northrop in Federal Commissioner of Taxation v. Forsyth (1979) 37 F.L.R. 430 to which Mr Byrne has just referred me. I agree with Mr Justice Toohey that it 1s not necessary in order to obtain leave, as distinct from sepcial leave under s.196(5) (b), for an applicant for leave to show that there is "a question of general or public importance or special circumstances". No doubt, if he is able to show that an applicant has so much the stronger case, but I agree that it is not necessary to do so in order to obtain leave. I also agree with Mr Justice Toohey in Lombardo's case (supra) that, in considering an application for leave, the court should direct its attention "to the existence of an arguable question, the implications of that question for the case in hand and, if urged as a reason for leave, its wider implications". In considering these two applications for leave which were heard together by consent, I have had regard to what Mr Byrne has put to me as to the course which proceedings followed in the Queensland Supreme Court and to the concessions made by Mr Smith who appeared for the respondent Commissioner of Taxation. He did not oppose the applications for leave and conceded that the Supreme Court decided the two matters on a basis that was not argued before it and, further, that the court did not expressly deal with the applicability to the facts in these matters of the decision of a Full Court of this Court in Federal Commissioner of Taxation v. Everett (1978) 21 A.L.R. 65 —- affirmed on appeal by the Full High " pinto nore Senate A a ween atten ret me a heme Pere) whe nim enna ew ta tmatle, ae Ne teamed tutes Gee wre Court (1979) 54 A.L.J.R. 196. He agreed that most of the arguments in the Supreme Court related to that matter which would arise for consideration by the Full Court if leave were granted. In those circumstances these seem to be appropriate cases in which leave to appeal should be granted. In saying that, I am, of course, expressing no view whatever, and in my view 1t would not be appropriate for me to express any view, as to the correctness or otherwise of the decision of the Supreme Court. However, having regard to what has been said here today, I think that fairly plainly leave to appeal - should be granted in respect of both applications. I grant your clients that leave and perhaps should formally direct, as I said earlier, that the matter of the balance sheet be 'dealt with in a formal way by the filing of a supplementary affidavit referring to 1t and exhibiting the correct documents. Costs are reserved. — — = rem SO ee, een SSS a er = ; cert y thot ims ard the Q i i . C22 9 sve cony of ihe i h ! Jere ly Newer of tho | Jones KEELY i : wea i fi A £BCLi™.5