Re Wood - [1988] HCA 71

HIGH COURT OF AUSTRALIA

Mason C.J.

Questions referred pursuant to section 377 of the Commonwealth Electoral Act 1918

7 June 1988

Decision

MASON C.J. On 12 May 1988 the Full Court answered the questions referred by the Senate to the Court of Disputed Returns pursuant to ss.376 and 377 of the Commonwealth Electoral Act 1918 ("the Act") respecting the place for which William Robert Wood was returned. The Court answered the questions as follows:

"Question (a): There is a vacancy in the representation of New South Wales in the Senate for the place for which Senator Wood was returned;

Question (b): The vacancy may be filled by the further counting or recounting of ballot papers cast for candidates for election for senators for New South Wales at the election; and

Question (c): There is no casual vacancy for one senator for the State of New South Wales within the meaning of section 15 of the Constitution."

At the conclusion of its judgment the Court stated:

"Having answered the questions referred by

resolution of the Senate, it may be that this Court has no further function to perform with respect to the filling of the vacancy which we have declared to exist. Another view is that the Court should give directions to the Australian Electoral Officer to undertake a recount of the ballot papers, leave being reserved to the parties who have appeared to apply to a Justice of the Court to resolve any questions which may arise as to the method of counting or recounting in order to identify the candidate who is entitled to be elected to the unfilled place. It might be thought that, upon completion of the recount, the Court should exercise the power to declare 'any candidate duly elected who was not returned as elected' (s.360(1)(vi)), whereupon the person in question would 'take his seat accordingly': s.374(ii)."

The Court noted that the jurisdiction of the Court to perform any further function in the matter had not been argued and went on to say that it would not embark on the performance of any further function except on the express application of one of the parties.

2. The Attorney-General for the Commonwealth has now made application for the following orders:

"1. THAT the Australian Electoral Officer for the State of New South Wales undertake further counting and recounting of the ballot-papers cast for candidates for election for the Senate pursuant to the writ issued by the Governor of New South Wales dated 5 June 1987 for the election of 12 Senators for the State of New South Wales for the purpose of determining the candidate entitled to be elected to the place for which Senator Wood was returned.

2. THAT the further counting and recounting of the ballot-papers be conducted in accordance with such directions as to the Court seem meet.

3. THAT there be liberty reserved to the parties to apply to a Justice of the Court in respect of any further questions which may arise…

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 Wood

Details

AGLC: Re Wood [1988] HCA 71
Case: [1988] HCA 71
Decision Date: 7 June 1988

CaseChat Overview and Summary

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

The primary legal issue before the High Court was whether the expenses incurred by Wood were properly deductible under the provisions of the *Income Tax Assessment Act 1936* (Cth). This involved a determination of whether these expenses were incurred in gaining or producing assessable income, or alternatively, whether they were outgoings of a capital, private, or domestic nature.

Mason C.J. considered the nature of the expenditure and its connection to Wood's business activities. His Honour applied the established principles of deductibility, focusing on the "consequence" test, which requires an examination of the relationship between the expenditure and the production of assessable income. The Chief Justice found that the expenses in question were not sufficiently connected to the earning of assessable income and were, in fact, of a capital or private nature, thus not deductible.

Orders