Commissioner of Taxation v Miller [1946] HCA 23

Commissioner of Taxation v Miller [1946] HCA 23 - HCA 1946 case summary — Zoe

[8]

Hi. . o A. Services, being taken into the Small Ships Section of the Transporta- Raa tion Service. Miller was retained as the master of the boat; there Comus. WaS no written agreement, and Miller, under orders, operated the STONER boat from Cairns, apparently remaining in Queensland waters. a On Ist October 1942, Miller signed a formal agreement with the Muter. Small Ships Section by which he agreed to serve for six months as master of the boat in question or any other vessel operated by the Section to which he might be assigned. A second agreement in identical terms was entered into at the end of six months for a further period of six months. Both agreements stated Miller's home port as Cairns. Late in 1942, he left on the boat for New Guinea, arriving at Milne Bay on 12th December. Under the terms of the agreements, the Small Ships Section engaged to furnish him free of charge with quarters and subsistence aboard the boat to which he was assigned. In fact he lived on the boat during the whole period of the agreement, his wife living at Cairns where she enjoyed an allotment of part of his salary. From 12th December 1942 until he left the service in October 1943, the boat was based at Milne Bay and, with the exception of a run north-east to Oro Bay and another to Normanby and Ferguson Islands, the boat worked in Milne Bay carrying supplies between ships at anchor and the shore. During this period, Miller did not go ashore and at no time, it was said, did his boat go outside the three mile limit. His only absence was during a short period of leave which he spent in Queensland. In an assessment dated 31st July 1944, the Commissioner of Taxation assessed to tax the whole of the income derived by Miller during the year ended 30th June 1943. The taxpayer lodged an objection under the Income Tax Assessment Act 1936-1943 on the ground, inter alia, that the greater part of his income was exempt under s. 7 of the Act. The Board of Review held that Miller was, during the period 12th December 1942 until 30th September 1943, a resident of the Territories of New Guinea and Papua within the meaning of that section and that, therefore, the Act did not apply to income derived by him during that period from sources within those Territories. : The Commissioner of Taxation appealed to the High Court from this decision. It was agreed by the parties that the evidence given before the Board of Review should be treated as evidence given before the Court, and neither party adduced any further evidence.

[28]

where review was limited to questions of law, such a decision " can- not be reviewed unless it is made out to be based on some error in law, including the absence of evidence on which such a decision could properly be founded." In the present case, it is contended for the appellant that there was no evidence upon which a decision that Miller was resident in Papua could properly be founded. The decision of the Board that there was such evidence involved a question of law: See Morley v. Lawford & Co. (1); Federal Commissioner of Taxation v. Broken Hill South Ltd. (2). When a question of law is involved, there is a right of appeal, not merely a discretionary power in the Court to entertain an appeal : Section 196 (1). In hearing the "appeal," the Court is exercising original and not appellate juris- diction: Federal Commissioner of Taxation v. Munro (3), and on appeal (4). When the " appeal " comes before the Court, the whole decision of the Board of Review, and not merely the question of law, is open to review: Ruhamah Property Oo. Ltd. v. Federal Commis- sioner of Taxation (5). In that case, Isaacs J. (6) agreed with the other four members of the Court that, if the decision of the Board involved a question of law, "then the whole case is within the original jurisdiction of the Court." But he proceeded to say: "If the Board's decision, on examination, be found to be unaffected by any erroneous view of the law - as, for instance, if it be found that the question of law has been correctly apprehended, then, in my opinion, on a true construction of the sub-section, it is the duty of this Court to abstain from altering the Board's conclusion of fact." It may become necessary upon an appropriate occasion to consider whether this view of the effect of the provision for appeal to the Court is consistent with the express statement in the majority judgment that " the whole decision of the Board and not merely the question of law is then" (i.e. upon an appeal) "open to review." There are, I think, difficulties in construing s. 196 (1) as meaning that, if the Board was right in its law, the Court is precluded from considering any questions of fact, but that if the Board was wrong in its law, the Court should, or may, consider all questions of law and fact, giving due weight, doubtless, to the decision of the administrative body on questions of fact. It should be remembered that the evidence before the Court may be different from that which was given before the Board, and further, that s. 196 (2) provides a procedure whereby, upon a reference by the Board, the Court may

[43]

Like the word " negligent," it is an ordinary English word extending over a field the boundaries of which constitute a broad limbo with blurred edges. In many cases, including most of those which become subjects of litigation, the question whether a person is a resident of a place, like the question whether he has been negligent, depends not upon the applicability of some definite rule of law, but upon the view taken by a tribunal of whether he comes within a field which is very loosely defined. The question is ordinarily one of degree, and therefore of fact. There are, however, cases (in litigation, exceptional) in which, upon the facts deduced from the evidence of the tribunal no other conclusion is possible than that the propositus is within or without the field, as the case may be, ill- defined though it is. In these cases, the question whether propositus is necessarily within or necessarily without the field is regarded as one of law: Cf. Noble v. Southern Railway Co. (1). It is not necessary to multiply authorities on the point, because they have recently been collected by the Supreme Court of New South Wales in the cases of Australian Gas Light Co. v. Valuer-General (2) and Dennis v. Watt (3). There is nothing in the present case to suggest that any question was raised before the Board as to whether it necessarily followed from such of the evidence as the Board accepted that Miller was or was not resident in the relevant locus. True, it was argued before us that there was no evidence upon which it could be found that he was so resident ; and this is in form a question of law. But it is, in my opinion, necessary, in order to bring a case within s. 196, that a question of law should be really, and not merely colourably, involved : Cf. Hopper v. Egg & Egg Pulp Marketing Board (Vict.) (4). If this were not so, it would follow that, by alleging before the Board or before this Court that there was no evidence of some essential fact, an appeal could be maintained in every case. This is manifestly not the intention of the legislature.

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