INCOME TAM - Pederal Court - leave bo anpeéat Fraw Supre ws Toure - rrairciples govervng grant cf leave - Supreme Courr reversed a4 ' ia) ws a agivided Boari - qyiestior arauab gsestarding Deoartmenc practice involved. FODOERAL COURT - practice - co te 7 upp diestionm far leav- ta mepeal orm aneare Tax cast 7 antiPues oof © cara zoueriess - Lene iy Lad i uTt i Ie m a ul " ia= Mi) ~ Siip) WW a PT u 4, a " Tmeme Tas Atcezamene Act on ie Or ere) AMER Ar - aay aye ee THR CoM ATLON OP fda Corin TPMARTIL OP AWSPe alts BTMECT ANT MICHAL WILLIAM DUCKETT URIS ULD Gag OF Lee BLTWEEN : COMM TS COMMOTEA MTER OS TAXATION Of TUL PALTH UT AUSTRAGLA aiplirerr® eWdD: "WT UCETN Pispeddenst MINUTOS Mek IMG OFLU: PINCUS ~. CATE PoumLislerle af Too atten, oy mie under taking C2 ray Ine coets «of The cecropdane own ia WILN respect oc Prgeral Court, 16 egeccul,@ oof the NOTE. Settlement and entry of orders 15 dealt with in Order the Feteral Court Ruics. o f reaoit, leave pea obit est ana the Commissioner of Taxatian to the Judgment of the Sipreme Court of Dueersland given on 4 June i985, whereby Me du-bice Machorecan allowed the respondents app2al serore Wim with meats, and made cet tar ocier arders. a Commissioner of Tawirion pay tre espondents' costs of and incidental ct 15 anplicatzen, and this order, to b 1G IN THR FEDERAL Covet OF AUSYRALTA ) OQUBENSEAND DISTRICT BeGist.y ) GENERAL DTVISToO" ' NUE Oh3 oP pape SOTHELI : TOMMIS SEUONEY uc LASATIL oP int COMMONAPALTH ul AND: PLAT, WILLIAM DUChE"T HITE BETWEEN : JOHN, ANTHINY TPP Ett I. ODMPCPR REASONS FOR TWiGMCNT T se ara oapplicataors omit. Ey rao Commissianer at ¢ Taxation ce Leave 59 appeal tu che tail Coustoes the Cederal Court, brought pu guacho of s.196/5) * Lhe in-~ome Taz Asses smear! fect. That permits an appeal by leave against 4 a_eision of a Supteme Cours oom appeal oreom a Board of Review, and unde: the relevant provision cf the Fadsral Courh oor ftotralia Ret, whieh fe g.l°[, f have fJuri:diction to determine the apelications for The taxpayers, Messrs Griffin and Whate, unre barristers or the Supreme Court af fi rm ueensjand. who did some wark in Papua 77- ws New Guinea inthe i ear, and i: the casc of Mr h ~— ine] Lovet subsequentiy. The question, whicrn has su far beer seaAlt tiem at the Board of Review and the supreme Cour + two levels, namneiy, in of Queensland, is whether or not the wnctoeme whicn the taxpayers derived in Papua New Guinea is exempt from Auctralsan Lax, Pursuant to s.73tqa) a In the Board of Review, the taxpayers, Dy 1 ma?ority, were held not to be protected by tnat provision, but Macroscan J. on appeal reversed that decision. TZ liave hos Honour's reasons before me, and it 13s clear that nis Hoenosus reqardea the matcee as quite an atguable one; indeed, he expvesse«a towards the and 1 his judament bis ditficulty in oatriving at any osortain conclusisn. 2 pn 4 Mr Grell Q.C., who vite Laxpayers hefore od @ ny ts rs c 'SLb _~ me. has admitted - correctly, in my view - that tne questrcen if arvuable, and T therefore think if urnereissary to discurcs it: nature in any more detail than toa sav mat oa1t requires an interpretation of the word "smelayneat" in s.73(qar, the applicant arquing 'hat "employment" 1s 'ised in what it says is cr " rat) a ctball nv TLq H mn cs] mr the orainary sense, employment under a con Counsel for the applicant, Mr Hartigar 3.C., nas referred me to evidence before the Court, suggesting § the question is ome cf some general wmprrctance. There 1s art affidavit by a legal cfficer employed in che afficz of the Australian Government Joliciter filed i. ath case, which cays. among other things, that there are otncr sarristers who have derived income in Papua New Guinea, and the question raised in the apoeal which 1¢ proposed is retravant Eno "heir assessment. The affidavit further <zaye:- "The terms cf His Honceur 8 veasons are wide onough fo apply toa ali persea zncome Trom Fapua New Cuinea under a contracts Tor services, so that *he "¢ be sianificant ain eelation to a larg other taxpayers apart trom bareisters. The yidenc2 whiecn 2 have manrionea dues not me oto provide overwhelming support for tne submission of Mr Hartigan 9 C. There 1s ano indication yiven of how commonly ic occurs that weople go from this country ro New Guinea to work, otherwise than under a contract of servit?, and it 15 necessary 5 cme ertent to rely upon general exnowledde tu assess that wa ie) int I have neen referred to a number of decisions of the wa Court determining simtlar applications, tre first af which 4 shat of Toohey J. in Lombards +. Tne Pederal Cermmissioner cf o 1Q "S Taxation 79 a4.T.C. 4079, Hic Honour pointed Gut in 1s quagvert that the existence of a question cf law is not of 1tself enough to warrant the grant of leave, and that something else is required. Toohey J. said at p.4086:- "A question of law that 15 important, or of general application, 1s no doubt sufficient, but there may be other considerations that justify leave." Here, 1t 18 argued by Mr Hartigan Q.C. that the question of law is of sufficient importance and general application to justify leave. The matter seems to me perhaps marginal; the onus 1s clearly on the applicant toa show the importance of tne question. As Toohey ¢. implies, there aust be a question of law for the matter to come this far; ctherwise, 1t cannot have gone properly to the Supreme Court Any question of Jaw must toa deqree be of general application, and T am not entirely convinced that the present question 15 especially weighty. However, on the whole, I am inclined to think that it involves or 1s likely ta r anvolve enough repercissions, as far as the other taxpayers are concerned, to warrant the grant of leave. I have also taken into account the fact that, as I am ainformed, the decision of Macrossan J. reverselil a long-standing pyacrice cf the applicant and it was, of course, a reversal of the decision of the Board of Review, which itself was divided on the issue, Mr Hartigan 9.C., far the Commissioner, not pursuant to any suggestion made by me, submitted that it might be a case in which I should consider imposing conditions on the applicant as to the payment of costs, as had been done in some other similar applications. Mr Gzell 9.C., for the respondents, has applied " for a special order as to costs, 1na form to be mentioned later. In view of the attitude of the Commissioner, it seems to me unnecessary to consider the question of costs in any detail, or to give attention to the general question of the circumstances in which such an order 1s appropriate. However, I may say that the attitude of the Commissioner appears to me a proper one, in that the amounts involved in the two cases are not very large and, as has been pointed out by counsel for the respondents, it is toa degree oppressive that taxpayers should have to pursue their rights through a whole series of hearings. Iam therefore content to act upon the intimation on behalf of the Commissioner, that the making of such an order for costs as was made by Neaves J. in FCT v. Knight 83 A.T.C. 4275 would not be opposed. The order I shall mention will be made in each case: upon the Commissioner of Taxation, by hi3 counsel, undertaking to pay the reasonable costs of the respondent on a party and party basis, with respect to the appeal to the Full Federal Court, in any event, that 1s, irrespective of the result, leave be granted to the Commissioner of Taxation to appeal from the judgment of the Supreme Court of Queensland given on 4 June 1985, whereby Mr Justice Macrossan allowed the respondents' appeal before him with costs, and made certain other orders. It will be further ordered that the Commissioner of Taxation pay the respondents' costs of and incidental to this application, and this order, to be taxed. awe mens ee ote oe me mee t certify that this and the 4 meceding Pages are a true cozy of the reasons for Judgirent herein of His Honour Mr. Justice Pincus Dan. ce AL, M3/7/8S- Asscciate Dated