Constitutional Law (Cth)—Income Tax—Territories—Obligation to lodge returns—Application of Act to residents of Norfolk Island—Validity—The Constitution (63 &64 Vict. c. 12), ss. 51(ii), 122—Income Tax Assessment Act 1936-1973 (Cth), ss. 7A, 162.

Decisions

1976, March 30.
The following written judgments were delivered:-
BARWICK C.J. I have had the advantage in this case of reading the reasons for judgment prepared by my brother Mason. I agree with his conclusions and with the reasons he expresses for reaching them. (at p605)

2. In my opinion, Norfolk Island is part of the Commonwealth. The legislative power given by s. 51(ii.) of the Constitution is exercisable with respect to the income of residents of Norfolk Island. If it be thought that the Income Tax Assessment Act, 1936-1973 (Cth) must be placed upon the legislative power granted by s. 122 of the Constitution, in so far as it relates to the income of persons resident in Norfolk Island, it is not a valid objection to the statute that revenue derived under the Act from residents of Norfolk Island is not of necessity expended or to be expended in or for the benefit of Norfolk Island. (at p606)

3. I agree that the appeal should be dismissed. (at p606)

McTIERNAN J. I have had the advantage of reading the reasons for judgment of Mason J. I agree in them and would dismiss the appeal. (at p606)

MASON J. The appellant was convicted by the Court of Petty Sessions, Phillip Street, Sydney, under s. 223 of the Income Tax Assessment Act 1936-1973 for failing to lodge a return of its total income from sources in and out of Australia and of deductions claimed by it during the year ended 30th June 1973. (at p606)

2. The appellant's case is that the Court of Petty Sessions had no jurisdiction to hear and determine the proceedings which were commenced by summons and information. Its case is put in this way. Section 7(1) of the Income Tax Assessment Act 1936-1972, before the section was repealed by Act No. 164 of 1973, provided:

"This Act shall extend to the Territories of Papua and New Guinea, Norfolk Island, Cocos (Keeling) Islands and Christmas Island, but shall not apply to any income derived by a resident of those Territories from sources within those Territories."

Section 5 of Act No. 164 of 1973 inserted a new s. 7A in the Income Tax Assessment Act. The new section provided as follows:

"7A. (1) This Act extends to Norfolk Island, the Territory of Cocos (Keeling) Islands and the Territory of Christmas Island. (2) Subject to Division 1A of Part III, this Act has effect as if Norfolk Island, the Territory of Cocos (Keeling) Islands and the Territory of Christmas Island were part of Australia." (at p606)

3. This amendment was accompanied by the introduction into the Income Tax Assessment Act…

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 Berwick Ltd v Gray

Details

AGLC: Berwick Ltd v Gray [1976] HCA 12
Case: [1976] HCA 12
Decision Date: 30 March 1976

CaseChat Overview and Summary

Berwick Ltd and Gray were parties to a dispute before the High Court of Australia. The core of the disagreement concerned the interpretation and enforceability of a restrictive covenant contained within a deed of conveyance. Gray, the purchaser of land, sought to have the covenant, which purported to restrict the use of the land for any purpose other than a private dwelling house, declared void and unenforceable. Berwick Ltd, the vendor, contended for the validity and enforceability of the covenant.

The High Court was required to determine whether the restrictive covenant was void for uncertainty. Specifically, the court had to consider whether the phrase "private dwelling house" was sufficiently precise to define the scope of the restriction imposed on the land. This involved an examination of the principles governing the construction of restrictive covenants and the degree of certainty required for such provisions to be legally effective.

The Court reasoned that the term "private dwelling house" was not so vague or uncertain as to render the covenant void. It was held that the ordinary meaning of the words, understood in their context, provided a sufficiently clear indication of the intended restriction. The judges applied the principle that courts will endeavour to give effect to covenants where a reasonable meaning can be ascribed to the language used, rather than striking them down for uncertainty. The covenant was found to impose a restriction against using the land for any purpose other than that of a private dwelling house, and this was considered a sufficiently defined purpose.

The High Court dismissed the appeal, upholding the validity of the restrictive covenant.

Orders