Hoysted v Federal Commissioner of Taxation [1921] HCA 56

'trustees upon trust to carry on, manage and work it until the expiration of | S¥°¥EY, 'trenty-one years after his death, and to stand possessed of the net annual Dee. 16. {income to arise from such carrying on upon trust for such of seven of his children 8 should be living at the expiration of each "annual period" during or in respect of which such income should have arisen, and he provided for the substitution in lieu of their parent of the children of any of such seven children who should have died during an "annual period." He further directed that 'upon the expiration of the period of twenty-one years his trustees should (subject to power of postponement and to certain conditions) sell the land. and stand possessed of the net proceeds (after making certain payments) upon 'must to pay or divide the same equally amongst such of the said seven children sshould be living at the expiration of the period of twenty-one years, with a Proviso for the substitution in liew of their parent of the children of such of the seven children as should be dead at the expiration of the period of twenty-one years, 'The term "annual period " was defined in the will as a completed 'etiod computed from the date of the testator's death to 31st January following, 4nd thenceforth from 31st January of each year to Slst January of the year following. One of the seven children died, leaving two children her surviving. 'On an assessment of the trustees during the period of twenty-one years after 'the date of the testator's death for land tax under the Land Taz Assessment ct 1910-1916,

Hela, by the whole Court, on the true construction of the Act and the will, that neither the beneficial interest in the land nor that in the income thereof was for the time being shared by the beneficiaries in such a way that they were taxable as "joint owners" within the definition of that tem in sec. 3 of the Act, and, therefore, that the trustees were not entitled under se, 38 (7) to more than one deduction of £5,000.

Rofe v. Deputy Federal Commissioner of Land Tax (N.8.W.), 28 CLR. 347, followed.

In respect of land tax upon the same land for a previous financial year, the trustees by their return claimed seven deductions of £5,000, The Commis. sioner in assessing them disallowed the deductions in respect of the shares of the beneficiaries on the ground that the " joint owners " did not any of them hhold original shares in the land. The trustees lodged objections (1) that the beneficiaries were entitled to the beneficial interest in the land or the income therefrom 'in such a way that they are taxable as joint owners " and. that they were the holders of original shares in the land being entitled tothe first life or greater interest in the land or the income thereof, and (2) that the trustees were entitled to seven deductions of £5,000 pursuant to secs. 38 and 38a of the Land Tax Assessment Act 1910-1916. 'The objections wer, in pursuance of the Act, treated as an appeal, and transmitted to the High Court. The appeal came before Garan Duffy J., who stated a case for the opinion of the Full Court upon the questions (1) whether 'the shares of the joint owners," or of any and which of them, in the land wore original shares within the meaning of see. 38, and (2) what number 'of deductions of £5,000 should the Commissioner make in the assessment of "the joint owners" of the land. No question was asked of the Full Court as to joint ownership ; this was assumed. 'The Full Court answered the fint question by saying that the shares of the children surviving at the date ofthe assessment were original shares, and the second by saying that the number 'of deductions of £5,000 that should' be made was six. Gavan Duffy J. there: upon, without further argument, made an order that the appeal be allowed, and that the number of deductions of £5,000 to be made should be six.

Held, by Knox C.1. and Starke J. (Higgins J. dissenting), that the question whether the beneficiaries were joint owners was not put in issue on that appeal, and therefore that, on an appeal from an assessment for the subse quent year, the Commissioner was not estopped from contending that the Deneficiaries were not joint owners of the land.

Per Higgins J. On the face of the objections to the Commissioners assess ment in the previous ease, and therefore on the face of the appeal, the point of joint ownership under the same Act and the same will was directly and specifically taken, and the decision of the point was necessary for the jude ment on the appeal; the point was "actually litigated and determined," 'though not argued; and, whether the judgment on that appeal was due to 'the Commissioner's consent oF to his neglect, he was estopped as by issue 'stoppel in other proceedings as between the same partis from denying that 'the beneficiaries were "joint owners."

Cyse staTeD. On an appeal by Lionel Norton Hoysted, John Henry MacKar-

Jand and the Trustees, Executors and Agency Co. Ltd., as trustees of the estate of Charles Campbell deceased, to the High Court from an assessment of them for Federal income tax for the year 1920-1921, 'Sarke J. stated a case for the opinion of the Full Court which, as amended at the hearing, was substantially as follows :

1, Charles Campbell (hereinafter called the testator), late of Mel- boume in the State of Victoria, merchant and station proprietor, who died on 13th September 1905, by his last will appointed Mary Helen Campbell and the above-named Lionel Norton Hoysted and the Trustees, Executors and Agency Co, Ltd, the executrix, executors and trustees thereof, and probate of such will was on 24th November 1905 duly granted to them by the Supreme Court of the said State, and on 6th July 1906 the said probate was duly resealed in their favour by the Supreme Court of the State of New South Wales.

2, The said Mary Helen Campbell died on 8th September 1911, and by deed dated 6th April 1914 the said Lionel Norton Hoysted and the Trustees Executors and Ageney Co, Ltd., in exercise of the Powers contained in the said will, appointed the above-named John Henry MacFarland as a trustee thereof in the place of the said Mary Helen Campbell deceased and the appellants are now the sole trustees of the said will

The testator at his death was possessed of a large amount of real and personal estate in the Commonwealth of Australia, including two station properties called respectively " Murray Downs" and "Langi Kal Kal" situated in the States of New South Wales and Victoria respectively with stock and other personal property thereon (hereinafter collectively referred to as the station properties).

The testator left him surviving (inter alios) his seven children telerred to in the will as "my said children," all of whom are now living except one of such children, Mrs, Mary Elizabeth Johnston, who died on 13th January 1912 leaving two children her surviving and now living,

By his said will the testator made special provisions as to the Station properties and other provisions as to the residue of his estate.

As to the station properties the testator (in substance) devised

H.C. or A, 1921, Hoxstep 'FEDERAL 'Cosas: SIONER OF Taxattos,

the same to his trustees upon trust to carry on, manage and work them until the expiration of twenty-one years from his death, and to stand possessed of the net annual income to arise from such carrying on upon trust for such of his said seven children as should be living at the expiration of each "annual period" (as therein define) during or in respect of which such income should have arisen, and he provided for the substitution in lieu of their parent of the children of any of the said seven children who should have died during an "annual period," and he directed that upon the expiration of the said period of twenty-one years his trustees should (subject to a power of postponement and to certain conditions) sell the station properties and stand possessed of the net proceeds of sale (after making certain payments) upon trust to pay or divide the same equally amongst such of the said seven children as should be living at the expiration of the said period of twenty-one years, witha pro- viso for the substitution in lieu of their parent of the children of such of the said seven children as should be dead at the expiration of the said period of twenty-one years

As to the residue of his estate (subject to certain legacies and certain payments and outgoings) the testator (in substance) devised and bequeathed the same to his trustees upon trust for his said seven children, but directed that the shares of his daughters should be settled upon them for their lives respectively with remainder to their children. " '

9, The trustees by their return 1920-1921 claimed seven deductions of £5,000 in respect of the station properties - one in respect of each of the six survivors and one in respect of the two children of Mrs. Mary Elizabeth Johnston, '

10, The Commissioner caused an assessment to be made against the trustees for the purpose of ascertaining the amount upon which land tax for the financial year 1920-1921 should be levied. Only 'the unimproved value of the station properties was included in the assessment.

11, In the assessment the Commissioner disallowed as deductions under sec. 38 (7), or otherwise, the whole of the sums claimed in respect of the persons mentioned in par, 9 hereof, on the ground that the said persons were not joint owners of the station properties.

12, The trustees, being dissatisfied with such assessment, duly H. Jodged objections in writing against the same, 13. The Commissioner by written notice to the trustees disallowed 4,

such objections, and the trustees, being dissatisfied with the decision yn!_4,

af the Commissioner, required the objections to be treated as an Cova

appeal and transmitted to this Court; and the Commissioner trans- Ts nitted the same accordingly.

14, The appellants appealed to this Honourable Court from the assessment in respect of the station properties for 1918-1919, and upon such appeal a special case was stated, Such special case and the judgment thereon and the judgment upon such appeal, together with the report of the proceedings in Hoysted v. Federal Commis- sioner of Tazation (1), are to be referred to as part of this ease, 'The matters stated in such report as facts are to be treated as facts for the purpose of this case.

15, Subsequently to the decision upon the special case mentioned in the preceding paragraph, the appeal against the 1918-1919 assess- ment was brought before the Justice who had stated the said case for hearing and determination.

16, The hearing of the appeal was purely formal: no arguments Were adduced by either party ; the parties treated the answers of the High Court to the questions stated as covering the whole ground of the appeal ; the attention of the Justice who heard the appeal as not directed to the question whether the beneficiaries under the will of Charles Campbell were taxable as joint owners, and he did not in fact decide that question.

M7, The formal judgment given on the appeal was, so far as material, as follows : "Order that this appeal be and the same is hereby allowed, and that the number of deductions of £5,000 to be made by the respondent in the said assessment be six."

18 The appeal coming on for hearing before me, I consented at therequest of the parties to state a case for the opinion of the High Court upon the following questions arising in the appeal, which in

'RY opinion are questions of law, and the questions for the opinion of the Court are - -

(1) Are the trustees assessable on the unimproved values of the station properties at all ?

(2) How many deductions of £5,000 are the trustees entitled to on the footing that the Commissioner is not estopped by any judgment ?

(3) Is the Commissioner estopped by judgment from contending that the trustees are not entitled to six deductions of £5,000 7

'The objections referred to in par, 12 were as follows: (1) that the said assessment is erroneous as matter of law ; (2) that the beneficiaries in the station properties trast come within the definition of joint owners, and that the six deductions of £5,000 each under sec. $8 (7) of the Act as claimed in the trustee's return and as allowed by the High Court of Australia in respect of the trustee's retum for 1918-1919 have wrongly been disallowed in the said assessment - and that such assessment should accordingly have been made on a taxable balance of £183,254 ; (3) alternatively, that each of the six first named of the said beneficiaries named in the said return should have been regarded as the owner of a one-seventh share and the two last named of the said beneficiaries should have been regarded as joint owners of the remaining one-seventh share of the s seventh shares respectively should have been separately assessed and a separate deduction of £5,000 should have been allowed in respect of each of such shares; (4) alternatively, and if no person should be regarded as having been on 30th June 1920 beneficially entitled either as a joint owner or as an owner in respect of the station properties or of a share therein, no tax is payable in respect of such station properties for the year 1920-1921.

By the will of the testator, which was part of the case, it was pro- vided that the expression "annual period," referred to in par. 6 of the case, "shall be deemed to be a completed period computed from the date of my death to the thirty-first of January following and thenceforth from the thirty-first of January of each year to the thirty-first of January in the next succeeding year."

Weigall K.C. and Owen Dizon, for the appellants, In Hoysted v.

id station properties, and that each of such seven one-

Federal Commissioner of Taxation (1) it was held that each of the surviving children of the testator had a life or greater interest in the and or in the income thereof, and they are therefore joint owners 'of the land within the definition of that term in see, 3 of the Land Tar Assessment Act 1910-1916, Each of the children is entitled as. Jong as he lives to receive his share of the income from the land, and so has, at least, a life estate in the income; and the fact thathe nly becomes entitled to take that share on a particular day of the year does not make any difference. But, in addition to being en- titled to the income so long as he lives, each child, if he survives 'he period of twenty-one years, is entitled to a share of the whole state absolutely ; so that his interest is greater than a life interest. Ifthere are no persons who can be said to be joint owners of the land, then there is no one who is taxable in respect of it; for the trustees are only liable to pay land tax for which their beneficiaries ate liable (Sendall v. Federal Commissioner of Land Tax (2) ). [Counsel also referred to Trustees, Executors and Agency Co. v. Commissioner of Land Tax (3). The six children and the two fandchildren of the testator are within the definition of "owner" ; forif the land were let, for instance, under the Settled Estates and Satled Lands Act 1915, they would be entitled to receive the rents aud profits, If they are owners, then they are taxable as joint owners. The Commissioner is estopped by the decision of the High Court in Hoysted v. Federal Commissioner of Taxation (1) from denying that the beneficiaries were joint owners. 'There was an assertion there that the beneficiaries were joint owners, and that they were holders original shares. 'The judgment which was given there could not Properly have been given unless it was determined that the bene- ficaries were joint owners or unless that point was conceded by the Commissioner. In either event he is not now at liberty to contest it Where there are two distinct points each of which must be 'determined in order to produce the order which the Court has made, itisnot open to the party against whom the order was made to raise Aither of the points again in subsequent proceedings (Gray v. Dalgety €Co,(4) ; Badar Bee v. Habib Merican Noordin (5) ; In re Graydon ;

cee 2 (4) 21 CLR., 509, at p. 542, GR CLR, 6s (6) 21 CLR @)20 CLR 21 (5) (1909) A.G,, 615.

Feounar facts alleged by one party which are directly admitted by the

Ex parte Official Receiver (1) ). This estoppel is based on public TLR.,'565. (8) 28 Ch. D., 516, at p. 518. () 34 LS. ch, 339, (9) 4 E. & B, 780.

Consequently in this case we come finally to the question ¢ isue, the point controverted, the matter litigated, between in the second appeal? It is not enough to look simply «atthe formal judgment and to say that the question of joint owner- pmust have been in issue or determined ; otherwise the judgment semoneous, We must look behind the formal judgment to the ri if there be one, or, if the record be not precise or there be wrcord, to the issue actually litigated between the parties in the 'action. In the present case the notice of objections made it sible to litigate the matter now in controversy - the question her the children were joint owners ; but the actual fact, in our jon, is that the parties, for some reason, withdrew that question wm the area of contest, as they did in the case stated to this Court. did not put the question in controversy in issue or make it a sable allegation " before the learned Justice who heard the appeal. It is impossible to treat the notice of objections the same precision and effect as a plea in the Courts of common t The conduct of the parties cannot be ignored. In short, the orcontroversy submitted in fact to the Court was: Assuming the taxpayers are joint owners, are they holders of original within the Land Tax Assessment Act ? our opinion, therefore, the Commissioner of Taxation is not pped in the present proceedings by the judgment in the second Ifhe had been, the argument that an estoppel could never e against a public taxing Act would require consideration ; deen considered in America, and rejected (New Orleans v. Bonk: (1)). It is unnecessary, in the view we have taken, any opinion upon the point in the present case, This point, question of estoppel, might have been, but were not, raised ¥. Commissioner of Tazes (2). answers to the questions stated should, in our opinion, be : (2) One - pursnant to sec. 11 of the Act; (3) No.

J. The question is as to the Federal land tax payable 'Year 1920-1921 in respect of two station properties which tesubject to the will of the late Charles Campbell. The will gave () 187 US, at pp. 396, 398, 399. @) (194) AC, 1013,

the net annual income to such of seven children as should be livi at the expiration of each annual period ending 31st January, to such of the children of the said children who should be then d as should be living at the expiration of the annual period, trustees have contended that under the will these beneficiaries " joint owners " of the land within the meaning of sec. 38 (7) of Act, and that therefore there ought to be deducted from the unin proved value of the land the sum of £5,000 in respect of each of th seven shares. This contention the Commissioner has opposed.

Disregarding for the present the numerous and difficult decided with regard to sec. 38 and other sections of the Act, and disregarding for the present the contention that the Commissioner estopped by a previous decision as to this very will, I propose to consider the question on its intrinsic merits. The assessment i made as against the trustees ; and the questions asked in the spel case are as follows : - (1) Are the trustees assessable on the nim proved values of the station properties at all? (2) If so, how many deductions of £5,000 are the trustees entitled to ?

I do not understand that the first question is seriously conte Under sec. 33, 'any person in whom land is vested as a trustee sh be assessed . . . asif he were beneficially entitled to the land"

But as to the second question the trustees have contended thi there ought to be seven deductions because of sec. 38 (7). Und that section, where, under the will of a testator who died before July 1910, the beneficial interest in any land or in the income th is for the time being shared among a number of persons, all of are relatives of the testator by blood in such a way that they taxable as joint owners under the Act, then " for the purpose of thei joint assessment as such joint owners, there may be deducted the unimproved value of the land . . . in respect of each the we 'owners who holds an original share in the land und the . will... the sum of five thousand pounds" 'The assessment here is as against the trustees; and there might have been some doubt, perhaps, as to the provisions for deductions

I shall treat the assessment as if it were iaries as joint owners,

"Yow, these beneficiaries are not "taxable as joint owners under 'Act unless they are " joint owners" within the meaning of the et; and the meaning given by the Act to the expression "joint +g (unless the contrary intention appears) definite (sec. 3) -

shuther as partners or otherwise, and includes persons who have or greater interest in shares of the income from the land.""

the first member of this sentence, do these beneficiaries own 'jointly or in common, whether as partners or otherwise" ?

The expression "jointly " and the expression "in common" are eal, and should prima facie receive their technical meaning, cally when used, as here, in relation to land. Even if the statute be treated as giving an unusually wide meaning to the word

it does not follow that these beneficiaries own these station " gither jointly or in common." 'The expression " whether sor otherwise " reinforce my doubt. But do these people " the land on 30th June 1920, the critical date for this assess- They are to get their proportion of the profits of the busi- carried on on the land if they respectively live till 31st January |, and not otherwise. Looking at the definition of " owner" hesame section, they are not " entitled to the land for any estate freshold in possession" ; and they are not (on 30th June 1920) 'atitled to receive, or in receipt of . . . the rents and profits" land ; and if the land were conceivably let to a tenant (there to power to let it) they would not (as on that date) be entitled to tive the rents and profits for the time being. It is by no means iin that people who are entitled to share in the profits made in ss which the testator has directed to be carried on on the would be entitled to the rents and profits of the land if the Iwerelet. But, at all events, these beneficiaries are not on 30th 1920 entitled to any rents or profits, actual or conceptual ; der sec. 12 the land tax is to be charged "on land as owned at mon the thirtieth day of June." Therefore, in my opinion, these do not satisfy the first member of the definition of

cable. But both parties assume - and I shall assume - H.C. or A.

"joint owners" (and see Roje v. Deputy Federal Commissioner o Land Tax (N.8.W.) (1) )

As for the second member of the definition, these beneficiaries have not cither a life interest, or any interest greater than a life interest. "in shares of the income from the land."

they have in the business (the profits of the business are not the profits of the land without stock, &e, and management) may be treated as including " shares of the income from the land," yet they have not a life interest, but an interest for twenty-one years from the death, and only if they respectively ate alive at the expiration of the annual period ending 31st January in respect of which the income has arisen, Nor have they a greater interest than a life interest in shares of the income. It is true that the beneficiaries have a contingent interest in the proceeds of the realization of these station properties ; for at the expiration of the twenty-one years (13th September 1926) the properties (land, stock, implements, &c.) are to be sold, and the proceeds - after payment thereout of any mortgages or moneys owing in respect of the pro- perties - are to be divided between such of the seven children as shall be living at that time, and such of the children of the testator's children then dead as shall then be living - divided equally per stipes. But on 30th June 1920, and for the purposes of the land tax for 1920-1921, the beneficiaries now living ave no life interest, or greater than life interest, "in shares of the income from the land."

For these reasons, my opinion is that the questions asked should be answered in favour of the Commissioner, unless he is estoppel by the previous decision from showing the true construction of the Act as applied to this will,

The question of estoppel was not included in the special case stated for this Full Court under sec, 46; but the case has been amended so as to include the question.

In pursuance of the Land Tax Regulations 1912 the trustees sent to the Commissioner a " notice of objection to assessment " on Srd May 1919, stating their reasons for objecting as follows: "(1) that the beneficiaries named in the will of the testator... alll of whom are relatives of the testator by blood, marriage or adoption,

"ar entitled to the beneficial interest in the lands known as the H.C. oF A. "ation properties' or in the income therefrom in such a way that 82! fare tarable as joint owners under the Land Tax Assessment Act How,

" Horste 16, and that they are the holders of original shaves in such lands, ,.°: 191 ) Pepenan g entitled to the first life or greater interest in such lands or the ae TGasme thereof; (2) that the taxpayer is entitled to seven deduc- Tacazioe-

'ons of £5,000 each pursant to the provisions of secs. 38 and 384 yiganaa the Land Tax Assessment Act 1910-1916 and any amendments i" (These objections are incorporated in the special case, "ss they appear in the report in the Commonwealth Law Reports (1).) Now, these objections were vital to the appeal, Under rule 40 of Land Tax Regulations 1912, the objections have to be considered bythe Commissioner ; he decides upon them, and gives written notice ofhis decision to the taxpayer. 'The objections are to be " treated an appeal," and have to be transmitted to the Court " as formal "agpeas"" 'There was no appeal apart from the objections; and the trial Judge has on the appeal to decide as between the objections and the assessment, The formal order made on appeal (24th May 1820) by the trial Judge is as follows: "that the appeal be and 'the same is hereby allowed, and that the number of deductions of '5,000 to be made by the respondent in the said assessment be six."

"Inasmuch as the six deductions would be improper unless the bene- 'ides were joint owners under the Act, the order necessarily involves a decision that six of them were such joint owners, and the first reason for objection was valid. To get the deduc- 'tions, two conditions had to concur - (1) the beneficiaries must be taxable as joint owners ; (2) they must be holders of original shares. Teonfess that I am unable to see how we can avoid the principle of oppel, although, under the circumstances, I should be glad to do If the appeal is allowed, the objections are allowed ; for the _thjections constitute the appeal.

Tt is true that between 3rd May (objections) and 24th May onder on appeal) special case was stated by the learned trial _'Tadge for the Full Court, and answered on 10th May. There were 'questions asked in that special case : - (1) Are the shares of the

• it owners, or of any and which of them, in the station properties () 27 CLR, at p. 408,

H.C. or A. original shares in the land within the meaning of see 382) Hoysrep Feperar 'Comners- SIONER OF 'Taxamton.

What number of deductions of £5,000 should the Commissioner make in the assessment of the joint owners of the said station properties?

The formal answers were : - "'(1) The shares of the six children of the said Charles Campbell deceased surviving at the date of the assessment in the station properties referred to in the said case are original shares in the land within the meaning of sec. 38 of the ~ Act. (2) Six."

Having regard to the form of the questions asked, and to the state- ments in that special case, I feel no hesitation in saying that the decision thereon by the Full Court does not raise an estoppel. That special case assumes that the beneficiaries are joint owners; the Full Court was not asked whether they were joint owners, ° That point-was left to the trial Judge; and the trial Judge made an orderon the appeal which is not consistent with anything but joint ownership. Why does not the order of the trial Judge on the appeal - the objec: tions to the assessment - estop the Commissioner now from saying that the beneficiaries are not joint owners? Either the order was made in adversum or with the Commissioner's consent ; and, if it 'was made with his consent, estoppel applies against raising the same point in any proceeding based on a different cause of action (In re South American and Mexican Co. ; Ex parte Bank of England (1); Newington v. Levy (2)), An omission on the part of the Commis: sioner or his counsel to argue the point will not prevent the estoppel, if the formal decision is clear upon the point (per Fanedll L.J. in Humphries v. Humphries (3)). 'There is estoppel as to any matter "inconsistent with any traversable allegation in the former declaration" (here the former objection) ; "and such a not the less traversable because the defendant fails to traverse either wholly orin part, whether such failure arises from neglect to comply with rules of the Court requiring notice " of special defence "to be given or from omission properly to argue a point."

I fully recognize the distinction between the doctrine of re judicata where another action is brought for the same eause of action as has been the subject of previous adjudication, and the doctrine of

(1) (1895) 1 Ch, 37, (2) LR. 6 CP, 180. (8) (1910)2K.B,, at pp. 534-535.

offact has already been decided (I may call it " issue-estoppel "). tated by Lord Ellenborough in Outram v. Morewood (1), 'the oppel precludes parties and privies from contending to the contrary that point, or matter of fact, which having been once distinctly atin sue by them, or by those to whom they are privy in estate Jaw, hasbeen, on such issue joined, solemnly found against them." the cases relating to res judicata in the former and stricter sense decision as to the same cause of action - it seems clear that the and judgment are conclusive, not merely as to the points ly taken, but also as to points which might have been taken

on v. Henderson (2); Hallv. Levy (3) ). But in the case of Teall " issue-estoppel " it must appear that the precise issue previously taken, In my opinion, there is nothing to prevent from contesting one point only, assuming other points - say, ame trumpery dispute - without forfeiting their right to contest

nd the defendant merely disputes the meaning of the Act and its ication to his conduct, and judgment be given for the Common- Ith, and if subsequently the Commonwealth bring another m against the same defendant for a like offence, the defendant

itatmal and void (Boyd v. Alabama (4) ). I hold this view even ugh the defence of unconstitutionality might have been raised in Previous action and was not, and though, logically, the penalty

in which I make in the present case is that, on the face of objections (and therefore of the appeal) in the previous case, Point of joint ownership under the same Act and the same will directly and specifically taken, and the decision of the point Necessary for the success of the trustees on the appeal. If the ussioner had been willing to assume joint ownership for the of the previous case, without binding himself as to the point Avfature cases, it would have been easy to make arrangements to

(0 3 ast, at p, a5, . @) LR. 10 CR,, 154. Ha, 100, at p. 115, (@) US, 645.

where, the cause of action being different, some point or H.C. oF A.

• that end, In par. 16 of the present special case it is stated there

were no arguments as to joint ownership - that the parties treated the answers of the Full Court as covering the whole ground of the appeal, and that the learned Judge had not his attention directed to the question and did not "in fact" decide it. But this means merely that the actual decision on the objections was given without the attention of the Judge being called to what it involved. A point or an issue may be actually controverted, may be in actual con troversy, in actual litigation, although it is not argued, or argued properly. A point may be in controversy although counsel may address no arguments to it, or may overlook certain aspects (Jews. bury ¥. Mummery (1); Humphries v. Humphries (2); Macdowgalt v. Knight (3) ). In this ease the objections still stood, and had to be decided, and they were decided. 'There was no withdrawal of the objections, or of either of them ; if either had been withdrawn, the appeal could not have been allowed. If we are to take it that - the Commissioner consented to the objection as to joint ownership being found against him, the estoppel applies ; for a judgment by consent or confession operates as an estoppel as fully as a judgment based on an actual finding of the Court (Brunsden v. Humphrey (4); In re South American and Mexican Co.; Ex parte Bank of England ; Irish Land Commission v. Ryan (6) ).

1 accept the position as stated by the Supreme Court of the United States in Cromiell v. Sac County (7) - - * In all cases, there fore, where it is sought to apply the estoppel of a judgment rendered upon one cause of action to matters arising in a suit upon a different cause of action, the inquiry must always be as to the point or question actually litigated and determined in the original action ; not what might have been thus litigated and determined. Only upon such matters is the judgment conclusive in another action." My view is that the point as to joint ownership was, by virtue of the formal objections, and from the nature of the judgment thereon, "actually litigated and determined" in the former proceedings and that whether the judgment in its actual form was due to the -

() LR 8 (5) (1895) 1 Ch., 97. 2) (19i0) 2 KB, 531. (6) (1900) 2 LE, 569. (8) 25 Q.B.D. 1. (7) MUS, at p. 353, () QED, 1a.

wor's consent or admission or to his neglect, he is bound fe finding of joint ownership which the judgment necessarily

to avoid misapprehension, I should add that I recognize

judgment was given in the former action. If, for instance, tion be brought for £1 9s., "rent of a cottage," and there is for the defendant in a County Court, evidence may be n that the judgment was so given because the Judge found the y to be yearly (Flitters v. Allfrey (1); and see Washington ee. om Packet Co. v. Sickles (2) ). A party can show by evidence issue a general verdict was given (Rave v. Farmer (3) ; vy, Tutop (4); Thorpe v. Cooper (5) ). But, though such

judgment, it has never been held that evidence may be given, radict the judgment, or to show that a specific issue presented Court, being essential to its judgment, was not sufficiently d, or argued at all, Here, the trial Judge was bound to dicate on the objections of 3rd May 1920, and did so adjudicate. ig that the

Questions answered : (1) Yes ; (2) One - pursuant to sec. 11 of the Act; (3)

wlicitor for the respondent, Gordon H. Castle, Crown Solicitor or the Commonwealth. BL.