Moses v Parker; Ex parte Moses - [1968] HCA 63

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Kitto, Menzies and Owen JJ.

HOLLINWORTH v. COMMISSIONER OF LAND TAX

(1968) 118 CLR 45

16 October 1968

Land Tax (N.S.W.)

Land Tax (N.S.W.)—Tax charged on lands of taxpayer—Lands consisting of several distinct parcels—Sale of one parcel—Proportion only of total tax to be borne by parcel sold—Land Tax Management Act, 1956-1965 (N.S.W.), s. 47.*

Decisions

October 16.
The following written judgments were delivered:-
BARWICK C.J., KITTO AND MENZIES JJ. In each of the years from 1958 to 1960 one Stanley Ernest White was the owner within the meaning of the Land Tax Management Act, 1956-1965 (N.S.W.) of certain lands in New South Wales including a property known as Bomera which consisted of seven portions comprised in one certificate of title under the provisions of the Real Property Act, 1900 (N.S.W.) and three portions comprised in holdings under the Crown Lands Consolidation Act, 1913 (N.S.W.). None of his lands being exempt from taxation under the Land Tax Management Act, White was assessed thereunder to land tax upon the taxable value of all the land that he owned on 31st October in each of the years mentioned. Some or all of the tax so assessed in respect of each of the years is still unpaid, and the question raised by these proceedings, at the instance of mortgagees of Bomera exercising their power of sale of that property, is in effect whether, on the true construction of a provision of the Act which makes land tax a first charge upon "the land taxed", Bomera stands charged with the unpaid land tax assessed upon the whole of White's lands or only with so much of that land tax as is proportionate to the value which Bomera alone had at the material date in each of the relevant years. In the Supreme Court of New South Wales, Hardie J. held that Bomera is charged with the unpaid balance of the land tax assessed upon all White's lands, and the Court of Appeal by majority affirmed the decision. Hence the present appeal. (at p47)

2. The charging provision is in s. 47, which begins by providing that "Land tax shall until payment be a first charge upon the land taxed". The appellants' contention involves construing these words in a general sense, so that any part of the land that is to be included in an assessment is charged with its proportionate part of the owner's land tax. The language of later provisions of the section lends colour to the argument. Not satisfied with making the charge a "first charge" and emphasizing the result by the words "in priority over all other encumbrances whatever", the first paragraph of the section adds that notwithstanding "any disposition of the land" it shall continue to be liable in the hands of a purchaser or holder for the payment of "the land tax" so long as it remains unpaid. The second paragraph is a proviso enacting that the charge is to be of no…

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 Moses v Parker; Ex parte Moses

Details

AGLC: Moses v Parker; Ex parte Moses [1968] HCA 63
Case: [1968] HCA 63
Decision Date: 16 October 1968

CaseChat Overview and Summary

The applicant, Moses, sought a writ of prohibition against the respondent, Parker, who was a magistrate. The dispute concerned the magistrate's jurisdiction to proceed with a committal hearing for an alleged offence under the *Migration Act 1958* (Cth). Moses contended that the magistrate lacked the necessary jurisdiction to conduct the committal proceedings.

The central legal issue before the High Court of Australia was whether the magistrate had the authority to proceed with the committal hearing, given the applicant's argument that the proceedings were fundamentally flawed. This involved an examination of the relevant provisions of the *Migration Act 1958* and the *Justices Act 1886* (Qld) concerning committal proceedings and the jurisdiction of magistrates.

The Court held that the magistrate did possess the requisite jurisdiction. The reasoning focused on the nature of committal proceedings, which are designed to determine whether there is sufficient evidence to justify a trial, rather than to determine guilt or innocence. The Court found that the magistrate had followed the correct procedures and that the applicant's arguments regarding jurisdictional defects were unfounded. The application for a writ of prohibition was therefore dismissed.

Orders