Commissioner of Taxation (Cth) v Wade [1951] HCA 66

High Court of Australia Dixon, Fullagar and Kitto JJ. Commissioner of Taxation (Cth) v Wade [1951] HCA 66

ORDER Appeal allowed. Decision of the Board of Review set aside. In lieu thereof order that the assessment be confirmed. No order as to costs.

Cur. adv. vult.

The following written judgments were delivered:—

Nov. 5 Dixon and Fullagar JJ.

This is an appeal by the Commissioner of Taxation from a decision of a Board of Review. By the decision of the Board the assessment of the taxpayer was reduced in consequence of the exclusion from the assessable income of an amount of £130. There was no appearance upon the appeal for the respondent taxpayer, who doubtless regarded the amount of the consequential reduction of tax as insubstantial.

The taxpayer is a dairy farmer. During the year of income, namely, the year ending 30th June 1948, 110 of his dairy cows were condemned under Part VI. of the Milk Act 1946-1947 W.A. (No. 27 of 1946 and No. 74 of 1947). Under s. 46, which is included in Part VI., when a test is applied and any head of dairy cattle kept by a licensed dairyman is found to be suffering with disease, an expression which includes tuberculosis, the Chief Inspector of Stock must report the fact and cause the diseased dairy cattle to be removed immediately from the herd of dairy cattle kept by the licensed dairyman and to be destroyed as soon thereafter as practicable. By s. 53 the dairyman whose cattle are thus destroyed may, subject to certain conditions, claim against the Milk Board constituted by the Act for payment of compensation out of the compensation fund in respect of the loss sustained by him by the destruction of the dairy cattle. The conditions require that he must make a claim for compensation and must make it within twenty-one days after the destruction of the cattle, that if the cattle were visibly suffering from disease he must have given notice thereof as required by law, that he must not have been convicted of trafficking in diseased cattle with a view to claiming compensation, and, since the enactment of the Milk Act Amendment Act 1948 W.A., that he must have contributed to the compensation fund during the year in which his cattle are tested. Until that enactment contribution by a licensed dairyman to the compensation fund was compulsory, but by an amendment of s. 60 contributions at a prescribed rate became voluntary. By a consequential amendment of s. 53, however, only those who contribute may obtain compensation. The condemnation of the taxpayer's cattle appears to have taken place before these amendments came into operation.