Lombardo, Dante v. Commissioner of Taxation of the Commonwealth of Australia [1979] FCA 15

respect of the years ended 30 June 1968, 1969 and 1972.

"... that should I be wrong iu that conclusion, I haic beard the cvidence of the partius and their witnesses eid T an

im a pesttion to iake a decision ... should the case go any further en] be recurned cto me for that purres-".

Section 25(2) of the Federal Court of Australia Act 1976

enables an application for leave to appeal to be heard and determined by a single Judge or by a Full Court. The application came before me as a single Judge. This has some implications that I shall mention in these reasons. The merits of the application were canvassed at some length by counsel for the taxpayer and the Commissioner

and in view of the relative novelty of the application

1936, that makes leave to appeal necessary, docs not

define the circumstances in which leave may be given nor does it prescribe any criteria to be applied. Nevertheless there are provisions in the Act which throw some light

required to appeal to the Federal Court with the leave" required to appeal to the High Court. Similar expressions appeared in s.35 of the Judiciary Act 1903, as it stood until 1976, although the reference to leave to appeal was in relation to interlocutory judyments where otherwise an appeal would lie as of right. For

that reason the judgment in Ex parte Bucknell (1936)

56 C.L.R. 221 is not entirely in point. But in thc course of a joint judgment the Court emphasised that in the case of an application for special leave,

case in order to justify the granting of the application. ... But, in the case of orders from which an appeal does not Lie without leave gibi dorner]Toosl yy, 1s ele fron fee teot.. of Lie section that the cvistesees of special circuustnces is not made necessary in order to justify the grant of leave tu appeal" (at p.224).

Likewise, although it may be at best a negative consideration, the existence of special circumstances is not necessary before leave to appeal Lo the Federal

provides for an appeal to a Supreme Court from any decision of a Board "that involves a question of Jaw". The meaning of that expression has been canvassed in a

number of decisions. See for instance Krew v. Federal

(1971) 71 A.T.C. 4212. It 1s not necessary to refer to them; the point is that the involvement of a qucston

of law is all that is necessary to ground an apncal

Supreme Court to the Federal Court leave is required.

The conclusion is inevitable that the existence of a question of law is not of itsclf cnough to warrant thet leave. Something else is required. <A question of law that 1s important or of general application is, no doubt, sufficient but there may be other considerations that

The notice of appeal to the Supreme Court identified the questions of law involved in Lhe decision

"1, The proper construction of Section 26(a) of the Income Tax Assessment Act 1936.

2. Whether the Appellant acquired his iterest in the properties referred to in the decision

of the Board of Review as "Helm Street" and "Clay Lands" for the purpose of profit wakuin.,

Before the Supreme Gourt the Commissioner submittcd that no question of Jaw was involved. Wickham J. reserved decision on that question until he had heard

the evidence; in the end he accepted the submission.

Although several questions of law were claimed by the taxpayer to be at least potentially involvcd in the decision of the Board, the "important question" said to warrant leave was whether a taxpayer, assessed under the provisions of s.26(a) of the Income Tax

Assessminent Act, can appeal to a Supreme Court against

atet awn or. D wD NE NaAari ce Ten omer ara ees thin ane ay ECLiSion G a poara oft ncvicw,. an My Vicw tne Gucec.o7

a cannot be proffered in that wide form. There may be decisions of a Board concerning an asscssment under s.26(a) that incontestably involve a question of law, hence are appealable. Decisions turning on the meaenine

of "acquired", "purpose™ and "profit inaking by sale"

On examination, it appcared that what the tury "22 was really saying was Lhat the application of a statutory provision such as s.26(a) to the facts as found wll always involve a question of law, cven when the co. 7. falls short of saying that there was no evidence on itl! the Board might reasonably have reached its conclusi-: Wickham J. did not accept Lhis. He tock as his startits point a passage from the judgment of Fullagaur J. in Hayes v. Federal Commisevuncr of Taxation (1956) fF Clin.

"Where the factun probandun involves a term used in & slatutie, the questiou whether the

Wickham J. was ef the view Lhat Pullogar J. was simply restating what had been said by Latham C.J. in Gommissioner of Taxation v. Miller (1946) 73 C.L.R. 93 at 97 and what had been said earlier by Lord Parker in

Farmer v. Cotton's Trustees (1915) A.C. 922 at p.933.

There is a difference of language involved; the earlier cases expressly introduced the element of construction

by speaking of some statutory enactment". Whether in the cnd the three Judges were applying the same test may be arguable. Sitting as a single Judge, hearing an application for leave to appeal, I do not think it is for me to try to resolve that argument. My inquiry should be directed

io the existence of an arguable question, the implications

of that question for the case in hand and, if urged as a

The correctness or otherwise of the decision challenged may be a relevant consideralion when Lhe application is before a Full Court. Fredericls v. May (1973) 47 A.L.J.R. 362. Sitling as a single Judze, particularly when the correctness of the decision wes not Lully argued, tne situation 1. different. IF Tease is granted, the Full Court 1s not bound by any vicw «f

the law T take, but 1t seems Lo me undesirable that « single Judge should srant leave on the basis that the decision of the Supreme Court was wrong. That 1s a

If leave is granted and the appcal is upheld, the matter will be remitted to Wickham J. It may be that from his Honour's decision leave to appeal will again be sought, either by Lhe taxpayer or the Commissioner. That should not stand in Lhe way of this applicalion. for this taxpayer substantial sutis of income tax are involved, not only in respect of the years assessed but, I am told, in regard to later years for which assessments will be raised arising out of the same transactions. The taxpayer's reference to the Board was heard jointly with those

confirmed aud the compelency of their appeals, perdi.

in the Supreme Court, will be affected, if nol deternais.

In my view these are good reasons for grantin, leave to appeal, especially as there is a question of

law to be argued, the answer Lo which may throw litt

on the scope of appeals from Boards of Review to Superime

There will be leave to the taxpayer to appes! At the request of the parties I reserve the quéstimn os costs. If there is any other matter arising from the ¢ reasons, requiring directions or any procedural vrdcer.