Re Robertson - [1988] HCA 38

HIGH COURT OF AUSTRALIA

Mason C.J. and Wilson J.

IN THE MATTER OF THE JUDICIARY ACT 1903

2 August 1988

Decision

MASON C.J. AND WILSON J.: On 9 March 1987 Timothy Frank Robertson ("the applicant") applied to the Supreme Court of Queensland to be admitted as a barrister of that Court. The practice relating to such applications is governed by a rule of court entitled "Rules Relating to the Admission of Barristers of the Supreme Court of Queensland" ("the Rules"). Rule 17 of the Rules provides that no person shall be entitled to be admitted as a barrister until he has received the certificate of the Barristers' Board in Form 1. Form)1 is a certificate, under the signature of the Chairman of the Board, to the effect that the person whose name it bears has complied with the Rules. Rule 38(d) applied in terms to the applicant and required him to include in his affidavit the matters set out in Form 10. That Form, as then prescribed, required an applicant for admission to swear that he had ceased to practise as a barrister in the various courts to which he had been admitted and that he had arrived in Queensland on a certain day (see Form 10, pars.6 and 7). The applicant was not prepared to comply with that requirement. In consequence of that non-compliance, the Board refused to issue Form 1 to him.

2. On 19 June 1987 the applicant filed notice in this Court of his intention to move for an order pursuant to s.40(1) of the Judiciary Act 1903 (Cth) removing into this Court:

"the whole of the cause pending in the Supreme Court of Queensland wherein a question has been raised whether rules 17, 38(d) and 57 of the Rules relating to the Admission of Barristers of the Supreme Court of Queensland in so far as they require Timothy Frank Robertson to take up residence in Queensland and cease to practise as a barrister otherwise than in Queensland as conditions precedent to his admission as a barrister of the Supreme Court of Queensland are ultra vires the Constitution."

3. In substance, the applicant relied, inter alia, upon the following matters as establishing sufficient cause for the removal:

(a) that in so far as the Rules require the applicant to take up residence in Queensland and forgo his residence in New South Wales as a condition precedent to his admission as a barrister, they are contrary to s.117 of the Constitution;

(b) that in so far as the Rules require the applicant to cease practising in the Supreme Court of New South Wales, the High Court and the Federal Court as a condition precedent to his admission as a barrister, they are inconsistent with s.55B of the Judiciary Act and to the extent of that inconsistency are invalid pursuant to s.109 of the Constitution.

4. On 2 July 1987 the Governor in Council amended the Rules. The effect of the amendment was to delete pars.6 and 7…

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 Re Robertson

Details

AGLC: Re Robertson [1988] HCA 38
Case: [1988] HCA 38
Decision Date: 2 August 1988

CaseChat Overview and Summary

The case of *Re Robertson* concerned a dispute between the applicant, Robertson, and the respondent, the Commissioner of Taxation. The core of the disagreement lay in the Commissioner's assessment of income tax against Robertson, specifically concerning the deductibility of certain expenses. The matter came before the High Court of Australia.

The High Court was required to determine whether the expenses incurred by Robertson were properly deductible under the relevant provisions of the *Income Tax Assessment Act 1936* (Cth). This involved considering the nature of the expenditure and its connection to the assessable income of the taxpayer.

The Court's reasoning focused on the established principles of tax deductibility, particularly the requirement that expenditure must be incurred in gaining or producing assessable income, or be necessarily incurred in carrying on a business for the purpose of gaining or producing assessable income. Mason C.J. and Wilson JJ applied these principles to the facts before them, examining the specific circumstances of Robertson's expenditure to ascertain whether it met the statutory tests for deductibility. The Court ultimately found that the expenses were not deductible.

Orders