ON APPEAL FROM THE SUPREME COURT OF Income Tax (Cth.)-Deduction by employer from " salary or wages "-Employee
receiving " salary or wages in respect of a period of time in excess of one week Piece-work-Worker not engaged by relation to periods of time-Income Tax Assessment Act 1936-1945 (No. 27 of 1936-No. 4 of 1945), SS. 221A*, 221c*, MELBOURNE, 239, 240. Criminal Law-Plea-Autrefois acquit-Summary proceedings-Information not
B. employed H. to pick and bag onions for 2s. a bag. H. was not bound to work at any particular times or to do any stipulated amount of work, and he did not work continuously. At the end of six weeks B. paid H. £32, being at the rate agreed for the work he had done in the meantime, and did not make any such deduction as would have been required if the case was within S. 221c of the Income Tax Assessment Act 1936-1945.
Held, by Latham C.J., Dixon, McTiernan and Williams JJ. (Starke J. dissenting), that, as the payment was not made in respect of any period of time, S. 221c did not apply.
Per Starke and Dixon JJ.: The dismissal for want of prosecution" of an information which alleged that the defendant had committed an offence against S. 221c but did not disclose what the offence was, and on which the informant was unwilling to proceed, was not a bar to proceedings on a subse- quent information which adequately charged the offence; the defendant was not in jeopardy on the earlier information.
Decision of the Supreme Court of Victoria (Macfarlan J.) Chenoweth V. Broome (1947) V.L.R. 1, reversed. The material provisions are set out in the judgment of Latham C.J., post, p. 588.
Alfred Broome, an onion farmer, employed one Healy to pick and bag onions on his farm and agreed to pay 2s. a bag for the onions picked and bagged. The arrangement did not bind Healy to work at any particular times or to do any particular amount of work he alone determined when he would work; his hours of work were irregular, and on some days he did not work at all. For the work he did between 12th February and 25th March 1945 he was entitled, at the agreed rate per bag, to £32, and Broome paid him that sum on the latter date.
The information of Richard Willmore Chenoweth, Deputy Federal Commissioner of Taxation, dated 31st October 1945, charged that Broome, contrary to S. 221c of the Income Tax Assessment Act 1936- 1945, on 25th March 1945, being the employer of Healy at wages in excess of two pounds per week, at the time of payment of wages to Healy did fail to make the deduction from such wages prescribed under the Act. On 14th November 1945 the hearing of this inform- ation was adjourned.
A further information laid by Chenoweth…
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.
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AGLC
Broome v Chenoweth [1946] HCA 53
Case
[1946] HCA 53
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal from the Supreme Court of Victoria concerning a prosecution under section 221C of the *Income Tax Assessment Act 1936-1945*. The appellant, Alfred Broome, an onion farmer, was charged with failing to make income tax deductions when paying an employee, Healy, for work performed. Healy was paid on a piece-work basis of 2s. per bag of onions picked and bagged, and was not obliged to work at any specific times or to a stipulated amount. Over a period of six weeks, Healy earned £32, which Broome paid him on 25 March 1945 without making any deductions.
The legal issues before the High Court were twofold. Firstly, whether the payment of £32 to Healy constituted "salary or wages" in respect of a "week or part thereof" or a "period of time in excess of one week" as contemplated by section 221C of the Act, thereby triggering the obligation to make deductions. Secondly, whether a prior dismissal of an information against Broome for the same alleged offence, described as "dismissed for want of prosecution," acted as a bar to the subsequent prosecution.
A majority of the High Court, comprising Latham C.J., Dixon, McTiernan, and Williams JJ., held that section 221C did not apply to the payment made to Healy. Their reasoning was that the payment of £32 was for a specific quantity of work (onions picked and bagged) and was not made in respect of any defined period of time. The Court distinguished this from payments made for work performed over a specific duration, such as weekly wages or pensions, where the obligation to make deductions would arise. Starke J. dissented, finding that the definition of "salary or wages" in section 221A, which included payments made at piece-work rates and under contracts for labour, indicated that section 221C was intended to apply to such payments, irrespective of whether they were calculated on a time basis. Regarding the plea of autrefois acquit, Starke and Dixon JJ. were of the view that the initial information, which did not adequately disclose an offence under section 221C, did not place the defendant in jeopardy, and therefore the dismissal was not a bar to the subsequent proceedings.
The High Court allowed the appeal, setting aside the decision of the Supreme Court of Victoria and restoring the order of the magistrate dismissing the information. The majority concluded that the magistrate was correct in finding that section 221C was not applicable to the circumstances of the payment.