right-Avoidance of tax-Court of summary jurisdiction--Authority to prosecute -Abandonment of excess over £500-Authority to abandon excess-Judiciary Act 1903-1933 (No. 6 of 1903-No. 65 of 1933), sec. 39 (2) (b)*-Sales Tax Assessment Act (No. 1) 1930-1932 (No. 25 of 1930-No. 39 of 1932), secs.*49, 54, 55 (1), 58*.

The respondent was charged in a Court of Petty Sessions of Victoria with avoiding tax payable under the Sales Tax Assessment Act (No. 1) 1930-1932. The information was dismissed and the informant appealed by way of order to review to the High Court under sec. 39 (2) (b) of the Judiciary Act 1903-1933.

Held that sec. 58 of the Sales Tax Assessment Act (No. 1) did not take away the right of appeal to the High Court given by sec. 39 of the Judiciary Act 1903-1933, and that accordingly the appeal was brought as of right. * The Judiciary Act 1903-1933, sec.

conferred upon it, except as provided 39 (2), provides: " The several Courts

in the last preceding section, and subject of the States shall within the limits of

to the following conditions and restric- their several jurisdictions, whether such

(b) Wherever an appeal limits are as to locality, subject-matter,

lies from a decision of any Court or or otherwise, be invested with federal

Judge of a State to the Supreme Court jurisdiction, in all matters in which the

of the State, an appeal from the de- High Court has original jurisdiction or

cision may be brought to the High in which original jurisdiction can be

53 CLR 186

The information recited that the defendant had incurred a pecuniary penalty exceeding £500, but the excess over and above the sum of £500 was thereby abandoned. The authority to prosecute did not in express words authorize the abandonment of the excess of the pecuniary penalty over £500 which was necessary to bring the case within summary jurisdiction.

Held that the production of the authority to prosecute did not necessarily operate to show that except for the written authority the prosecution was conducted without the full cognizance and approval of the Deputy Com- missioner of Taxation, and whether the formal authority was or was not wide enough to include the abandonment of the excess penalty, the presumption created by sec. 55 (1) of the Act, that the prosecution was instituted by the authority of the Deputy Commissioner, had not been rebutted.

APPEAL, by way of order to review, from a Court of Petty Sessions of Victoria.

Joseph Adams, the Deputy Federal Commissioner of Taxation, laid two informations against Percy Cleeve. One of the informations was substantially in the following form :-The information of Reginald Robert Kedge of Melbourne in the State of Victoria, an officer doing duty in relation to the Sales Tax Assessment Act (No. 1) 1930-1932 for and on behalf of Joseph Adams, Deputy Federal Commissioner of Taxation, who saith…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Adams v Cleeve

Details

AGLC: Adams v Cleeve [1935] HCA 12
Case: [1935] HCA 12
Decision Date: 25 March 1935

CaseChat Overview and Summary

This case involved an appeal by Joseph Adams, the Deputy Federal Commissioner of Taxation, to the High Court of Australia from a decision of a Court of Petty Sessions in Victoria. The respondent, Percy Cleeve, had been charged with avoiding tax payable under the Sales Tax Assessment Act (No. 1) 1930-1932. The magistrate dismissed the informations against Cleeve, leading to the informant's appeal by way of order to review.

The High Court was required to determine two primary legal issues. Firstly, whether the appeal to the High Court was competent as of right, given the provisions of the Sales Tax Assessment Act and the Judiciary Act. Secondly, the court had to consider whether there was sufficient evidence to convict the respondent of avoiding sales tax, particularly in light of his admissions and the fact that the informations were laid for amounts exceeding £500, with the excess abandoned to bring the matter within summary jurisdiction.

The Court held that the appeal was brought as of right, finding that section 58 of the Sales Tax Assessment Act did not exclude the operation of section 39(2)(b) of the Judiciary Act, which grants a right of appeal to the High Court where an appeal lies to a State Supreme Court. Regarding the evidence, the Court found that the respondent's admissions, coupled with the non-appearance of certain transactions in the company's books and returns, provided sufficient evidence to establish that he was knowingly concerned in or party to the commission of the offence under section 5 of the Crimes Act. The Court also determined that the presumption under section 55(1) of the Sales Tax Assessment Act, that the prosecution was instituted with the authority of the Deputy Commissioner, had not been rebutted, and that the abandonment of the excess penalty was permissible.

Consequently, the High Court allowed the appeal, made the order nisi absolute with costs, and remitted the informations to the Court of Petty Sessions for rehearing.

Orders