S.298(1, 5 ems zit ent 3 eplication cefused by Eoara of Fe law" iunveolvsd - appeal limitel cz: no application co decision of pe ture Lombardo v. Federal Cowmzssiconer of Taxation '1979) 40 PLILR. - ton. Mobil Cil Australia Poovrietarcy Limztead v. Tre Commissicner o Taxation (1953) Federal Commissioner of Taxation v. Coleman (1978) 78 A.T. C.L.R. 475 4,258 Lia) con. PER Ra LES roe con. IN THE FERPEPAL COUR? OF AUSTRALIA ) RICT REGISTRY ) No. QLD. G26 of 1285 ON APPEAL FECM THE SUPPEME CoUPT FC hy OURENSLAND NEW YORK PECPEROIE? pry, Lr AND; THE COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRAL I? Cy oram: Northrop, Lockhart and Beaumont, Jd. La] ate: 16 August 1985 yg lace: Sydney THE COURT OPDERS THAT: i. The appeal be dismissed. 2. The appellant pay the rasponaent's costs sf the acpeal. Note: Zettlemen ani ence f "3 15 daait with an ister 2¢ IN THE FEDERAL COURT OF AUSTRALIA ) ) QUEENSLAND DISTRICT PEGISTRY ) Q. No. ) ) GENERAL DIVISIOMW r ON APPEAL FPOM THE SUPREME COURT OF OUEENSEANT BETWEEN : NEW YORK PROPERTIES PTY. LTD. and THE COMMISSIONER OF TAKATION OF THE COMMONWEALTH OF AUSTRALIA COURT: NORTHROP, LOCKHART AND BEAUMONT J3. DATE: 16 August 1985 PLACE: SYDNEY REASONS FOR JUDGMENT NGREHROP J. I would dismiss the appeal. I agr reasons for judgment of Beaumont ¢., but desire bs ) nu cvations of a general kind. Under sub-section 196(1) of the Assessment Act 19365, the Commissioner ofr a4 appeal to a Supreme Court from "any decision that involves a question of law". From a cone th iT provisions of Pare VY of the Assessment W Appellant Respondent ee with the fo make some Inzore Ta taxpayer may of the Hoard ideraticn of apparent that a decision referred to in sub-section 196(1) is limited to a decision of the Board made pursuant to if sub-section 195(1), namely a cecision confirming, reducing, increasing or varying the assessment. In particular, it should be noted that sub-section 1956(1) doe not confer 4a ut right of appeal from decisions of a procedural of adjectival mature made Ey a Hoard or its Chairman in reviewing a decision of the Commission yeferred to it under the provisions of Part V; see s.192. It follows, that unless a decision of a procedural or adjectival nature made by the Board can be treated as a decision to "confirm, yreduce, increase or vary the assessment", no appeal lies to 4 Supreme Court under sub-section 196(1). In my opinion, the decision of the Board confirming the assessment, is the only decision from which an appeal may be taken under sub-section 196(1) of the Assessment Act. The decision to refuse to grant the adjournment of the hearing of the reference, whether it was made by the Chairman or by the Board, was a decision of a procedural or adjectival natures. On the facts of this case, that deczsion cannot be treated as a decision to confirm the assessment. For the raasons given by Beaumont J., the decision confirming the assessment does not involve a question of law. These conclusions do not mean that decisions of a procedural or adjectival nature made by a Board or by the rh Chairman of a Board can never be the subject a judicial scrutiny. Such decisions may not be subject to review under by the Administrative Decisions (Judicial Review) Act 1977; see sub-section 3(1) of that Act and paragraph (f) of Scheduie 1 to that Act. It is possible that that exclusion does not apply to decisions made by the Chairman of a Board under Reg. 38 of the Income Tax Regulations, but such a decision by a Chairman can never be the subject of an appeal under sub-section 196(1) of the Assessment Act. Nevertheless, there appears to be no reason why the High Court, in an appropriate case, cannot exercise the jurisdiction conferred upon it by s.75(v) of the Constitution, sor the Federal Court in an appropriate case, cannot exercise the jurisdiction conferred upon it by 5.39(B) of the Judiciary Act 1903 with respect to the exercise of powers conferred upon members of the Hoard. In exercising those powers, those members are officers of the Commonwealth and subject to writs of mandamus or prohibition or to an injunction. T ceitify that this and the Two (2) 3 1. preceding pages are a true copy cf the ; Reasons for Judgrent heicin of the Honomable Mr. Iuctico NORTHROP c . i Assonactyenalrord y { Datod: 1G Qugusr 19 PS ' fee rs a a raat s—Sorersca! IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY No. QLD G.26 of 1985 ) ) ) ) DISTRICT REGISTRY ) ) ) GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF URENSLAND BETWEEN : NEW YORK PROPERTIES PTY. LTD. Appellant AND: THE COMMISSIONER OF TAXATION OF THE - COMMONWEALTH OF AUSTRALIA Respondent Northrop, Lockhart and Beaumont JJ. 16 August 1985 i REASONS FOR JUDGMENT LOCKHART J. Sometimes more difficulty arises and more time is consumed in deciding whether a question of law is involved in a decision under appeal and, if it ts, in identifying what it is, than in hearing the appeal itself on the merits. This case 1s no exception. It has a long and rather bizarre history. By notice of assessment dated 21 April 1978 the Commissioner of Taxation assessed the taxpayer to income tax for the year ended 30 June 1974. The objection to the assessment claimed that it should be reduced by allowing a deduction of $92,298 and by allowing a partnerhsip loss of 513,089. The taxpayer asserted in its notice of objection that:- i. It was during the year of income a member of a partnership known as Colray Land Co.; 2. The Partnership during the year of income carried on the business of trading in land; 3. On 7 June 1974 the taxpayer became a member of a further Partnership known as Colray Noird; 4.(a) On 7 June 1974 the Colray Noird Partnership acquired certain lands from the Colray Land Co. Partnership which were assets of a business carried on by the latter partnership and became assets of the business carried on by the Colray Noird Partnership. Members of both partnerships elected, in accordance with s. 36A of the Income Tax and Social Services Contribution Assessment Act 1936 ("the Assessment Act"), that the value of the lands for the purposes of s. 36 of the Assessment Act should be the cost of the lands to the Colray Land Co. Partnership; 4.(b) As a result of the sale of the lands the assessable income of the Colray Land Co. Partnership was equal to the allowable deductions and the taxpayer did not derive any assessable income under s. 92 of the Assessment Act; 5.(a) During the year of income the Colray Noird Partnership sold the lands to Noird Limited. The lands were assets of a business 3. carried on by the Colray Noird Partnership until that sale was made whereupon it became an asset of the business carried on by Noird Limited. The members of the partnership and Noird Limited elected in accordance with s. 36A that the value of the lands, for the purposes of s. 36, should be their original cost to Colray Land Co. being the original purchaser; 5.(b) As a result of the sale the assessable income of Colray Land Co. was equal to the allowable deductions and the taxpayer had not derived any assessable income under s. 92; 6. The Colray Noird Partnership incurred a loss of $955,360 pursuant to s. 63 of the Assessment Act; 7. Alternatively, the Colray Noird Partnership incurred an allowable deduction of $2,362,490 which was a bad debt written off during the year of income and which had been brought to account by the taxpayer as assessable income; 8. The taxpayer incurred a loss of $13,089 being its share of a partnership loss incurred during the year of income and which was an allowable deduction under s. 92; and 9. Section 260 of the Assessment Act did not apply to enable the Commissioner to ignore the s. 36A elections and assess the taxpayer as as if the elections had not been made. The Commissioner's Commissioner furnished a statement to the Board as required by Reg. of the Income "(1) (ii) (i1i) (iv) (v) (vi) (vii) 4. objection was disallowed on 19 July 1978 and decision was referred to a Board of Review. Tax Requlations which provided:- No part of the amount of $13,089 claimed by the taxpayer as its share of a partnership loss of $261,783 allegedly incurred by Colray Land Company in the year of income ended 30 June 1974 1s allowable as a deduction under section 92(2) of the Act. The net income of Colray Land Company for the year of income ended 30 June 1974 was not less than $1,845,966. In terms of section 92(1) of the Act the taxpayer's individual interest in the net income of Colray Land Company was not less than $92,298 for the year of income ended 30 June 1974 and that amount was correctly included as assessable income in the taxpayer''s assessment for that year. The taxpayer's taxable income for the year of income ended 30 June 1974 was not less than $139,298. The provisions of section 36A of the Act have no application to the purported transfer of the trading stock (1.6. the land in question) by Colray Land Company to the Colray-Noird partnership and the value of the land was properly included in the assessable income of Colray Land Company in accordance with section 36 of the Act. No part of the amount of $2,362,490 claimed by the Colray-Noird partnership in the year ended 30 June 1974 as a bad debt 15 an allowable deduction under section 63, section 51(1) or any other section of the Act. Alternatively, no deduction is allowable to the taxpayer under section 92(2) of the Act for its share of the alleged partnership loss ($13,089) or to the Colray-Noird partnership under section 63 of the Act for the alleged bad debt (82,362,490) because:- the The (a) the transactions which gave rise to the purported partnership loss and the purported bad debt were shams and did not have the legal effect contended for by the taxpayer: (b) such transactions constituted an arrangement which section 260 of the Act operates to void as against the Commissioner; or (c) such transactions should he disregarded as being a fiscal nullity for the purposes of the Act. At the hearing before the Board which took place on 3 May 1983 both the Commissioner and the taxpayer were represented by senior counsel. After the appearances had been taken, counsel for the taxpayer informed the Board that the taxpayer sought an adjournment of the hearing of the appeal on the ground that the taxpaver had not been able to obtain all necessary evidence including documents for the purpose of presenting its appeal. He relied upon a= statutory declaration of his instructing solicitor, Howard Lionel Alexander, made on 3 May 1983. Mr. Alexander affirmed, so far as is material: 2. It is necessary that the taxpayer seek an adjournment of the hearing set down before the Board of Review on 3rd and 4th May, 1983 for the reason that the taxpayer has not, despite reasonable effort to date, been able to obtain ail relevant documentation and evidence for the purpose of the hearing. 3. An adjournment is sought so that the task of preparation for the hearing may be completed. I consider that an adjournment for a period of approximately three weeks would suffice. I believe that unless an adjournment of the hearing is granted the taxpayer will be seriously prejudiced. If the application for adjournment 1s refused the taxpayer will not be able to proceed with the hearing of the appeal. 6. 4. My firm first received instructions to act in this matter on behalf of the taxpayer on o¢ about 20th January, 1983. ... . 5. I am further informed by Mr. Cominos [Ca partner of Mr. Alexander'sJ and verily believe that he then set about obtaining from our client all relevant documentation so that preparation of the evidence could be undertaken. Certain documents were supplied by our client in mid-February, 1983. .The documents did not however include a large number of relevant documents, and none of them were originals. Mr. Cominos made further inquiries of our client and its accountants Messrs. Duesbury Johnston & Marks, and in mid-April 1983 flew to Hong Kong where further inquiries were made of the accountants of Noird Ltd. a company which was involved in the instant transactions. 6. The first notice of the hearing date of this appeal was received by my client's accountants by notice dated lith March, 1983 passed on to my firm shortly thereafter. 7. The conduct of the hearing and further preparation was largely delegated to me on or about 23rd March, 1983. I retained counsel to appear at the hearing, and gave consideration to assembling the relevant documents and evidence." Paragraph 8 of the declaration then set forth a series of steps taken by Mr. Alexander since 23 March 1983 for the preparation of the case including attempts by him to obtain various documents from persons who were thought to hold them that might advance the taxpayer's case, including accountants in Hong Kona. Paragraph 8 1s lengthy and I need not set it out. The deciaration then continued:- "9, I am therefore presently left in the position where: 7. (a) I have, as I respectfully contend, made reasonable efforts since becoming involved in the matter to obtain relevant documents and evidence. (b) Nevertheless, the documentation presently available is incomplete, and in large part, comprises copies of unexecuted documents. (c) I have yet to investigate other probable sources of further documentation and evidence and need further time in which to do that. 10. I am informed by senior and junior counsel for the taxpayer and verily believe that in their view the material presently available is not sufficient to allow the taxpayer to proceed with the hearing of the appeal, particularly having regard to the Matters set out in the Commissioner's notice under Regulation 35(1). il. In the circumstances I respectfully seek an adjournment of the hearing for a period of approximately three weeks." Counsel for the Commissioner opposed the application for an adjournment of three weeks on various grounds including the followind: (1) Based on the reasons for judgment of the High Court Court in E.G. & H. Nominees Pty. Limited v. General Mutual Insurance Co. Limited (In Liquidation) (1976) 50 A.L.J.R. 460 an adjournment should not be granted where the basis of the application for the adjournment is that further evidence may be obtained unless the Court has reason to conclude that there is "some solid" matter which exists and which, if produced, could be regarded as possibly influencing the course of the hearing of the appeal. B. (2) The material contained in Mr. Alexander's declaration was in essence that he and others advising the taxpayer were looking for further documents or further evidence to support the taxpayer's case, but nothing suggested that the documents would be found or that they would produce "solid matter" that may influence the course of the appeal. (3) All the declaration really said was that there may be other documents bearing on the case which the solicitors for the taxpayer had not seen and which may be relevant to some issue in the appeal; that the taxpayer's advisers wanted more time to see if any such documents existed, to determine their relevance and to decide whether to use them on the hearing of the appeal. Counsel for the taxpayer then replied and said that the application for adjournment should be determined by applying a general principle that adjournments will be granted if they are sought bona fide on reasonable grounds and if the other party either will not be prejudiced or, if prejudice is likely, that it can be rendered nugatory by compensation. He said that the taxpayer undertook to pay the costs of the Commissioner occasioned by the adjournment. He relied upon Jordan v. Smart (19611 N.S.W.R. 735 and Rose v. Humbles £19701 1 W.L.R. 1061. He stressed that there was no suggestion of absence of bona fides on the part of the taxpayer, and that Mr. Alexander was available for cross~examination, but that the Commissioner did not seek to cross-examine him. Counsel submitted to the Board that the declaration of Mr. Alexander provided substantial evidence that the adjournment was sought on reasonable grounds. The Board then adjourned briefly and, upon reconvening, the Chairman of the Board said: "THE CHATRMAN : After consultation with my colleagues, I have decided that the hearing should go ahead. The board can, of course, proceed without original documents, so that the lack of possession of the original documents is not essential to the hearing before the board. On a study of the declaration, it lends nothing to the belief that co-operation effected to produce documents and records can be expected through Yates, or Barry and Nilsson, or Campbell - his records reveal nothing, and he has failed to observe the board's notice anyway - nor do I consider that anything can emerge through Silke and Jensen Exploration. The situation in relation to the Hong Kong accountants, who are outside the jurisdiction anyway, is that to date it has been totally unproductive, and reliance on it seems to be based on some uncertain communication between Mr. Cominos and Mr. Alexander, and the prospect of anything emerging from Myer Realty is, to say the least, very uncertain and nebulous. So I think, in the circumstances, the board will not accede to the request that the matter be adjourned." Counsel for the taxpayer informed the Board that the taxpayer was unable to proceed with the appeal for the reasons disclosed in the declaration. The Chairman of the Board then said that, as the taxpayer had either made no effort or was not 1n a position to present its case to relieve it of the onus placed upon it by s. 190(b) of the Assessment Act, the Board was in the position where it must confirm the assessment. The Board then confirmed the assessment. 10. The taxpayer appealed to the Supreme Court of Queensland from the Board's decision confirming the assessment. The notice of appeal to the Supreme Court stated that the decision of the Board involved the following question of law:- "Whether in the circumstances disclosed in the statutory declaration of Howard Lionel Alexander and other material placed in evidence before the Board, the Chairman of the Board should have granted the Appellant's application that the hearing before the Board be adjourned for a period of approximately three (3) weeks." At the request of the parties the Supreme Court determined as a preliminary question whether the decision appealed from involved a question of law. The Supreme Court (Ryan J.) rejected the Commissioner's argument that the Board's decision to confirm the assessment followed from the taxpayer's election not to proceed on the evidence which was then available to it and that the earlier decision of the Board's Chairman refusing an adjournment played no part, except historically, in the Board's decision confirming the assessment. His Honour found that:- "It was an integral part of the Board's decision that the appellant was not entitled to an adjournment to enable evidence to be placed before it. It does not appear to me to matter whether that conclusion was one reached by the Board itself or accepted by the Board in consequence of a decision by its Chairman. If in arriving at the decision to reject the application for an adjournment, and in consequence thereof arriving at its ultimate decision to dismiss the appeal, the Board could be said to have misapplied the law, it seems to me that a question of law would he involved in its decision." 11. Ryan J. then examined some of the authorities dealing with the question of when a decision involves a question of law and held that:- "However, I can find nothing to show that the Board wrongly exercised its discretion to refuse an adjournment in this case. Accordingly its decision does not appear to me to involve a question of law. At most it could be said that it would have been a more appropriate exercise of the Board's discretion to have granted a short adjournment in view of the consequences to the appellant of refusing the adjournment and the undertaking as to costs. However, a court is not concerned with the question whether the discretion was exercised in the most appropriate way. It is concerned only with the question whether it was exercised in accordance with law. The appeal must therefore fail." The taxpayer then appealed to this Court, by leave, from the Supreme Court's judgment. Counsel for the taxpayer submitted before us: 1. That the decision of the Board confirming the assessment was necessarily based on the earlier decision, whether of the Board or the Chairman alone, refusing the adjournment, so that if the refusal of the adjournment involved a question of law so did the later decision confirming the assessment; 2. That the Board was invited by counsel for each party to apply different principles governing the application for adjournment namely, those to which I referred earlier. As a question therefore arose before the Board as to which principles should applv in considering 12. the application for adjournment, that itself gave rise to a question of law independently of the question whether the Board applied the right principles in refusing the adjournment; 3. Alternatively, that a question of law was involved in the refusal of the adjournment and the subsequent confirmation of the assessment in that the Board, by rejecting the taxpayer's submissions and accepting the Commissioner's submissions, applied the wrong principles in refusing the adjournment. Counsel for the Commissioner submitted: 1. That an analysis of the Assessment Act and the Income Tax Regulations establishes that, upon a reference to the Board, certain responsibilities are imposed upon the Board and others upon the Chairman alone. Reference was made in particular to ss. 178, 192, 193 and 195 of the Assessment Act and regulations 38 and 39. The decision to refuse the adjournment was a decision of the Chairman, not of the Board. As it is only decisions of the Board that are subject to appeal to a Supreme Court (sub-s. 196(1)) the decision of the Chairman refusing the adjournment cannot be challenged in these proceedings. 2. That the Board's decision to confirm the assessment followed from the taxpayer's election not to proceed on the evidence then available to it; and there was no nexus between the Chairman's decision refusing the adjournment and the Board's later decision confirming the assessment. oe Be 13. 3. That, whether the Board's decision confirming the assessment did or did not follow causally upon the earlier decision refusing the adjournment and whether that last mentioned decision was that of the Board or of the Chairman, no question of law was involved in any relevant decision. The Board did not act on wrong principles or misunderstand or erroneously determine any of the material placed before ait; hence it has not been shown that the adjournment was wrongly refused. In the result no question of law is involved in any relevant decision of the Board. An appeal to a Supreme Court from a decision of a Board of Review pursuant to s. 196 of the Assessment Act can only be brought where the decision involves a question of law. I propose to turn first to the question whether a question of law was involved in the relevant decision in the present case. I use the expression "relevant decision" because there was some difficulty in argument before us in identifying the decision which was said to have involved a question of law and some tendency to treat that decision as being simply the decision refusing the adjournment rather than the decision of the Board confirming the assessment. It is the latter decision that was the subject of the appeal from the Buard to the Supreme Court and that lies at the heart of the appeal to this Court; but 1t is susceptible of challenge in this case only if the decision (of the Chairman or the Board, as the case may be) refusing the adjournment was an essential part of the Board's decision confirming the assessment. It is necessary to consider the nexus, 1f any, between those two decisions 14. only 1f I conclude that the decision refusing the adjournment itself involved a question of law because the taxpayer's attack on the Board's decision corfirming the assessment was mounted solely on the basis that the refusal of the adjournment was a decision that cannot stand. Unless that conclusion is favourable to the taxpayer it cannot establish that the decision of the Board confirming the assessment involved a question of law, and must therefore fail in its appeal. There is a considerable body of authoritv concerning the meaning of sub-s. 196(1) of the Assessment Act and the circumstances that may give rise to a question of law being involved in a decision. The cases include The Australian Gas Light Company v. The Valuer-General (1940) 40 S.R. (N.S.W.) 126; Federal Commissioner of Taxation v. Broken Hill South Limited (1941) 65 C.L.R. 150; The Commissioner of Taxation v. Miller (1946) 73 C.L.R. 93; Haves v. Federal Commissioner of Taxation (1956) 96 C.L.R. 47; Buckland v. Federal Commissioner of Taxation (1960) 34 A.L.J.R. 60; Fisher v. Deputy Commissioner of Taxation (1966) 40 A.L.J.R. 328; Re Neil Ex parte Cinema International Corporation Pty. Limited (1976) 50 A.L.J.R. 499; Federal Commissioner of Taxation v. Coleman (1978) 78 A.T.C. 4,355; Federal Commissioner of Taxation v- Moody (1981) Qd.R. 272; Lombardo v. Federal Commissioner of Taxation (1979) 79 A.T.C. 4,542. Bowen C.J. said in Lombardo's Case at pp. 4,545 and 4,546: "Without attempting an exhaustive summary, it may be said that a 'question of law' will be involved in a decision in the following circumstances:- is. (1) If it was expressly raised and the Board made a ruling on it as a relevant factor in its decision; (2) If at 1s obvious from the decision or transcript of the case that the Board in arriving at its decision has misunderstood the law in some relevant particular; (3) Technical words had necessarily to be construed before the statute could be applied; (4) Where a particular set of facts had, of necessity, to be within or without the statute; (5) Where, ina submission of 'no evidence', there 1s a real possibility of success." Toohey J. said at pp. 4,549 and 4,550:- "In the Australian decisions these general principles have been established. (1) The proper construction of sec. 26(a) of the Act is a question of law ... (2) A question as to what constitutes income is a question of law... (3) Once a decision of the Board involves a question of law, the whole decision of the Board and not merely that question is open to review... (4) For purposes of jurisdiction it 1s immaterial whether the question of law involved was rightly or wrongly decided by the Board ... What does it mean to say that a decision of a Board involves a question of law? When the question is itself expressly stated, there will be no difficulty in saying that the question was involved in the Board's decision. But the fact that a question is not expressly referred to does not mean that it is not so involved ... If a perusal of a Board's decision shows that some step, although not expressly referred to, must have been taken by the Board in arriving at its conclusion, that matter was involved in the decision. And if the matter, on examination, is shown to be a question of law, then a question of law will have been involved ..." 16. None of the decided cases to which we were referred in argument or which have been revealed by my own researches touch directly the question that arises here where an adjournment was refused. It is necessary, in my view, for a question of law to be involved in a decision of a Board of Review that an appellant must identify in the decision of the Board a particular question of law involved, expressly or by implication: Lombardo's Case per Toohey J. at p. 4,550. I reject the proposition that a question of law was involved in the present case simply because both the Commissioner and the taxpayer advanced arguments before the Board as to the proper principles to be applied in determining the application for adjournment, those arguments being mutually inconsistent and neither of them manifestly untenable. That proposition cannot be sustained. I also reject the argument that a question of law is involved in a decision of the Board or of its Chairman refusing an adjournment merely if it is reasonably arguable that the adjournment should have been granted. This is a very different case from one that turns) on the construction of a particular section of the Assessment Act, which may be open to more than one view each of which is reasonably tenable, but only one of which 1S correct. The construction of the section involves a question of law. It 1s not because various arguments as to construction of a section are available or are reasonably open that 17. gives rise to the question of law; but the fact that the Board's decision is concerned with the proper construction of the section. Also, once the question of law is identified it is immaterial whether it was rightly or wrongly decided by the Board: Krew v. Federal Commissioner of Taxation (1971) 71 A.T.C. 4213 at p. 4215; XCOQ Pty. Limited v. Federal Commissioner of Taxation (1971) 124 C.L.R. 343 at p. 348. Counsel for the taxpayer relied on certain statements of Wickham J. in Federal Commissioner of Taxation v. Coleman (supra) and by Connolly J. in Federal Commissioner of Taxation v. Miller (supra). The passage from Wickham J.'s judgment in Coleman's Case upon which reliance was placed is at p. 4,358: "It must be demonstrated that there is a genuinely arguable legal question. A question of law should be really and not merely colourably involved." The question which arose in Coleman's Case was very different from the questions before this Court in the present case. The taxpayer's argument before the Supreme Court of Western Australia in Coleman's Case was that the decision of the Board did not involve a question of law because the decision of the Board was simply one of fact, namely, whether because of special circumstances it was just to allow the taxpayer a deduction under s. 82D of the Assessment Act with respect to a housekeeper wholly engaged by the taxpayer in keeping house for her and in caring for her child under the age of 16 years. Wickham J. held that no question of law was involved. The passage from his Honour's judgment upon which counsel for the taxpayer relied 18. before us needs to be viewed in its context. His Honour said at p. 4,358:- "Relevance of criteria is of course a question of law, but I do not think it possible to insinuate a question of law into the decision merely by submitting that certain criteria adopted are not relevant, or are arguably not relevant. It must he demonstrated that there is a genuinely arguable legal question. A question of law should be really and not merely colourably involved »». the appellant must do more than merely pose a question of law..." When this passage from the judgment of Wickham J. is read as a whole and in the light of the question which arose for decision by his Honour in my view it gives no support to the argument of counsel for the taxpayer, especially in a case like the present where the question of iaw is said to arise from a decision refusing an adjournment. Indeed, the judgment of Wickham J., in particular the passage to which I have referred, to the extent that it may be said to have any bearing on the present case, tends to neqate the taxpayer's argument. The questions before Connolly J. in Moody's Case were similar to those which arose in Coleman's Case. Again no question of any adjournment by the Board arose. Connolly J. referred to the need to raise a "contestable" proposition of law; but this statement was made in a context similar to that which attracted the remarks of Wickham J. in Coleman's Case to which I have referred. 19. For a question of law to be involved in the decision of the Board refusing the taxpayer an adjournment of the hearing of its appeal it is necessary, in my opinion, for it to be established that, in exercising its discretion to refuse the adjournment, the Board acted on wrong principles or took into account irrelevant considerations or failed to take into account relevant considerations or denied the taxpayer natural justice. It is well established that a refusal to grant an adjournment may constitute a miscarriage of justice which necessarily involves an error of law on which an appeal may be based: Dick v. Piller £19433 1 K.B. 497; Rose v. Humbles (19701 1 W.L.R. 1061; £19721 1 W.L.R. 33 (Court of Appeal); Priddle v. Fisher & Sons £19681 1 W.L.R. 1478; Ottley v. Morris (Inspector of Taxes) £19791 1 All E.R. 65; Sullivan v. Department of Transport (1978) 20 A.L.R. 323. In the present case, when the Chairman of the Board announced the decision refusing the adjournment it is plain that he considered that the taxpayer would be able to conduct its case by tendering copies of documents if the originals were unavailable, and that it would be futile to adjourn the hearing for about three weeks because it was unlikely that the documents which the taxpayer thought it might be able to obtain would in fact be obtained. The Chairman had obviously given close consideration to Mr. Alexander's statutory declaration. His reasons for declining the adjournment must be considered in the light of the background to the appeal some of which I mentioned in the opening paragraphs of these reasons. Tt ais an 20. appeal involving the financial year ended 30 June 1974 and relates to events that occurred during that year. The notice of assessment issued in 1978 and the Commissioner's decision disallowing the taxpayer's objection was referred to a Board of Review that same year. The hearing before the Board did not take place until five years later, on3 May 1983. Contemporaneous documents relevant to the matters in issue before the Board presumably would have been about ten years old. It comes as no surprise to me that the Chairman said in effect that the prospect of anything emerging from any further search for documents that may assist the taxpayer's case was very uncertain and nebulous. The Chairman was entitled to take into account the matters to which he referred; and it has not been established that he acted on any wrong principle in concluding that the adjournment should be refused. It is true that counsel for the Commissioner relied in argument before the Board on the judgment of the High Court in E.G. and H. Nominees Pty. Limited v. General Mutual Insurance Co. Limited (In Liquidation) (supra) and there is, I think, much to be said to support the view that 1t was a case which depended upon its own facts and did not lay down any general principles governing adjournment applications. But the Chairman made no reference to that judgment when refusing the adjournment and there is no reason to suppose that he made any use of it at all. Even if he did rely upon it in some unstated way I can see no reason to suppose that he would have done so other than as an analogy. In my opinion no question of law was involved in the decision refusing the adjournment. It follows that no 21. question was involved in the decision impugned in this case, namely, the Board's decision confirming the assessment. Hence it 1s unnecessary to consider the other arguments advanced by the parties before us. The appeal should be dismissed with costs. | certify that this and the 2c preceding pages are a true copy of the Reasons for Judgment herein cf his Honour Mr. Justice 74 CL _ ALA ' Associate Dated. 1G QAugraa "G ps aN THE SEDEPAL COURT OF AVJSTRALIA | QUEEVSLAND DLSTPittT Ce&CisTey } No, QLD. Glo cP i365 GENPRAL SIVISTON ) COUFT OF QUEENS Pare eT ON APPEAL FEM THE BETVIEEN he bee by by"|re is int ROSERTIES Foy. LTD. Appeliant AND: ONEP OF TAVATT II ol MMONABALTH OF THE CoMMIs CF THE Co} Respondent '4 Coram: Northrop, Lockhart and Beaumont, J Date: 16 August 1985 apreals foom a judgmenc 4 Tv 74970 ww ord 4 wat = ee ee = dn ols Gunes L373, thea apeeliant lody2i aonetirs ci "base rtzer ore - lad sm ee emey' s st2a8cemnenv — _e. oat .y 7773 Dhaw2tt1cn to tre Canmitsioner's Risseerert, ratea "i April sls. -r t@spert sf ats income fies tee rear ending 29 Fane 137i, Tet By letter dated 19 July 1978, the Commissioner informed the aprellant that its objection was disallowed. By letter dated : ft '@) a) Ee 3s js. u ub fe a) iP) wu r 21 July 1978, the appellant ec mM quested that th di slon be ceferced to a Board of Revisw. Cn 11 March 19@7, the & i?) be B as notified that the Bcard cf Review would hear the cH tu En uw ba) ire] 1G ct a i) atter on > May 1983. On that date, at the commencement cf the er oO proceedings, the appellant sought an adjournment of for a period of approximately three weeks for the stated purpose "1L86(1) The Commissionec oo. A Supreme beat elinat The Commissioner okjyectea ve the corzervence oF the: apreal on the ground that the decision apeesled from iid ncit anvolve a oguestion of lav. The agreed that thiz peeliminary tssus enould be first by Ryan, J. For the L a a a appellant's attempts to obtain all the documentation it claimed to require in order to present its case adequately. According to bhe + ATHS-pes C5 Evansaccion in .53ue sucressful In particular, it was been e@nescuntereid in iscatang documents thought to be 'then in eydne,, Darwin and Hong Kong. after hearing both oacties, the Chairman of the Brard said - "Arher comaultatzcon with om pLLE derided tnat the hearing sazuli gs boari can, of classe, peiceea "1 aecurents, that the lack of fos oyiginal dosuments 15 mot assential before tie hoard. rf the ds that cc- can be #2 at and Wiisson, cr Canpbel nothiny, and he nas faile notice anyway - ner do Ic enersz2 thesush Silke ana 7 The aitusticn tn relation to the accountants, who are outside the jur sticn aiyway, is that to date ait has been totally unproductive, and reliance H ae tc be based on some uncertain ccmrunic Me. Comias and Mr, Alexander. and th of anyctlin amerging from Myer Realty i4, ay the least, very uncertain and nebulous. So I thinx, ain the cifcumstances, the board will not accede to the request that the matter be adjourned." nortly thereafter, the following discussion ensued between the Chairman, Mr. De Jersey 9.C. on behalf of the arpellanc and Mr. "MR, DE JERSEY: ....We are unable to proceed with the appeal; we are mot in a position to span or call evidence. for the reasons a1isclosed in the declaration and ain the course of our submissions, if the board pleases. THE CHAIRMAN: I as s wS to contairm the asze THE CHAIRMAN: As I said, the tax effort or 25 not in & positi anything elise - and has in fact m eelireve himself cf the onus p section 190(b), the boara 15 int tc must conf2 the Llommigsionie2s this reference...." {ct 13 ctléars Tvom the statenent of vesazing 2 TAs Chareman in veéerusing the adicurnment chat ne Lys two consideraticns. Ficst, that it was open to "4 z zn ye A mS . fea ad mwa. [oS ee re ee ee We om ear 3 %5 thelr teiginal foen. Tecondly, chat no useful oucrcse wouli =e celevant cansidearatisns to be taken into arcournt in the execscise of the Board's discretion to grant or to refuse an adjournment. However, it is submitted on behalf of the appellant that the appeal tc the Supreme Coust was competent because the derisicn af the Board to refuse the adjournment involved aA question ct law for the purposes of 5.196(1). decision. Beard, althougn an acministrativse tribunal, 212 a quasi-judicial bound to have regard to ralevant consideraticns only parte Commissioner ror Railwats; Pe noc (19et) (N.S.W.) (Pt.1) 430 at p.437; Flick, op cit, at ¢.65). here, the decision in Mobil illustrates, w as here, the matter in contention zs one of procedural fairness only, it is by no mé@ans easy to identify any questicn of law being involved. Patherc,. cthe case 213 one of the application of the well accepted rules of natural justice in the particular circumstances (zee (19€2) 112 C.L.R. at ep.495, 504). That process involves no question of lay t may be i irrelevant 1 gn omy view, nme such tonsidseraticns account br She Clairman To Tne in rin Avallispility to the apoellant cf copy QOCUNSN TS remoteness cir the prespect that furthers material would were appropsiate considerations fer the Chairnan te t acrount. Te follows, in my via, lat ne yusitiin of unvolvec an the refusal eof the adisugnment 30 that "2 az from the decision uncer §.125(1) vu But, as ae _on, an. tne EFurn ur ates ake, Ares Paeeers) ahi "SRE =a. 7 ee Eeai 4 The appellant sought comfort in the ciycumstancte OAAt., in opposing the adjcurnment, the Commiszioner yelied ouecn the veasoniog of the High Court in 2.6 SH. tizmireess Pov. ied. v Generali 'Mutual Ineuranse Ce. ttd. (7m Lrquidaticn) (1a7e) FO A.L.C.R. 460). Eut, however the Commissioner may have slught to use that decision, the grounds relied upon by the Chairman in refusing the adjournment were those already cited. No reference was there made to the decision or the reasoning in E.G. & H. Mominess and theré 15 no reason to suppose that the cage was of any geeatec significance to che Chairman than as a userul analogy on the facts: the grounds for cefusal of the adjournment vere those stated 1n the Chairman's reasons and. as has been eaid. it could not be suggested that those grounds were basec on any improper considerations In my opinion, no appeal iay to the Supreme Court. Ir the ciernstances, Le 18 unneressacy te cons.it- 2 number of separate contentions aévancei cn benalf a5 the ct The aggeal should be dismissed vith costs. | certify that this and the © preceding Dages are a true copy of the reasons for 'udgment here'n of The Honourable ir Justice eens = Ma ! 1G — NEL Associato ~ Dated i* AvooS. eS