Hassell v Perpetual Executors Trustees and Agency Co (WA) Ltd and Ball [1952] HCA 66

HIGH COURT [1952.

H.C. or A. and Social Services Contribution Assessment Act 1936-1952 and

1952. —)

FEDERAL ComMiIs- SIONER OF TAXATION vw. Bayty.

Williams J.

other Tax Assessment Acts which give the taxpayer an option either to have the commissioner's decision on his objection referred to a board of review or to appeal to this Court or the Supreme Court. In the absence of a full right of appeal on fact and law from such a decision to this or some other court in which the judicial power of the Commonwealth is vested under Chapter III. of the Constitu- tion, a grave constitutional question may arise whether the Commonwealth Parliament can, without infringing the judicial power, provide that a controversy between the Crown and the subject as to whether the latter is liable to pay a tax imposed by an Act depending upon disputed facts can be conclusively deter- mined by an administrative body.

Alternatively the plaintiff relied on a certificate in writing signed by the Deputy Commissioner of Taxation for the State of New South Wales certifying that the defendant owed the sum of £1,018 17s. 5d. (the total amount claimed in the writ) as prima- facie evidence that the amount was due. I held that this certificate was sufficient prima-facie evidence to prove the plaintiff's case and that the plaintiff must succeed unless the defendant went into evidence: Entertainments Tax Regulations, S.R. 1942 No. 421, reg. 57.

There is no dispute that in all eleven instances the whole of the proceeds of the entertainment were devoted to a public &c. purpose. The dispute is as to whether the whole of the expenses of the entertainment did not exceed 50 per cent of the receipts. The commissioner was satisfied that in each instance the whole of the expenses exceeded 50 per cent of the receipts. The right to a refund under s. 18 depends upon the satisfaction of the commissioner. But the satisfaction is not an arbitrary satisfaction. It must be exercised according to law and not humour. The taxpayer must place before the commissioner facts which should be sufficient in law to satisfy him that the whole of the net proceeds will be devoted to public &c. purposes and that the whole of the expenses do not exceed 50 per cent of the receipts. The Court can examine the facts proved by the evidence to have been placed before the commissioner. If it is proved that the commissioner has not applied his mind to the real question for his determination but has acted capriciously or arbitrarily or upon irrelevant consider- ations the Court can order the commissioner to reconsider the matter according to law. It may be that the Court can go further and, if it is of opinion that on the facts the commissioner was bound in law to be satisfied, the Court can order the commissioner