Rowe, Barbara v Commissioner of Taxation

[1981] FCA 173

i e '

EX TEMPORE

- IN THE FEDERAL COURT OF AUSTRALIA )

GENERAL DIVISION No. G29 of 1981

1 No. G30 of 1981

I

QUEENSLAND DISTRICT REGISTRY )

BETWEEN : BARBARA ROWE - Applicant

AND: THE COMMISSIONER OF TAXATION

Respondent

BETWEEN: HAROT,D G R A M ROWE

Applicant

AND:

THE COMMISSIONER OF TAXATION

Respondent

REASONS FOR JUDGMENT -

I 2 13 October 1981 KEELY J.

I do not thrnk these applications for leave call for

elther reservation of my decislon or for any exhaustive

reasons. In Lombardo v. Federal Commlssioner of Taxation

to whlch Mr Ryrne, on behalf of the appllcants, has referred

me, which is repoited in (1979) 9 Australlan Taxatlon

Revlew 550, Mr Justice Toohey pomted out that s.196 of

the Income Tax Assessment Act "does not deflne the clrcumstances

in whlch leave may be glven, 1101 does 1.t prescrlbe any

criteria to be applied". That observation has been followed

by Mr Justice Lockhart In Federal Cornmlssloner of Taxation v.

L

.

2.

Nixon (1979) 3 7 F.L.R. 135 - see also Mr Justice Northrop in

Federal Commissioner of Taxation v . Forsyth (1979) 3 7 F.L.R. 4 3 0

to which Mr Byrne has lust referred me.

I agree with Mr Justice Toohey that it is not necessary

in order to obtain leave, as distinct from sepcial leave under

s.l96(5)(b), for an appllcant for leave to show that there is

"a question of general or public importance or spcclal

circumstances". No doubt, if he is able to show that an

applicant has so much the stronger case, but 1 agree that it

is not necessary to do s in order to obtain leave. I also

agree with Mr Justice Toohey in Lombardo's case (supra) that,

in considering an appllcation for leave, the court should

direct its attention "to the existence of an arguable questlon,

the implications of that question for the case in hand and,

;

if urged as a reason for leave, its wider implications".

In consldering these two applications for leave which

were heard together by consent, I have had regard to what

Mr Byrne has put to me as to the course which proceedings

followed in the Queensland Supreme Court and to the concessions

made by Mr Smith who appeared for the respondent Commlssloner

of Taxation. He did not oppose the applications for leave and

conceded that the Supreme Court declded the two matters on

a basis thdt was not argued before it and, further, that the

court dld not expressly deal with the appllcabllity to the

facts in these matters of the decision of a Full Court of

this Court in Federal Commissioner of Taxatlon v. Everett

(1978) 21 A.L.R. 65 - affirmed on appeal by the Full Hlgh

3 .

Court (1979) 54 A.L.J.R. 196. He agreed that most of the

arguments In the Supreme Court related to that matter whlch

would arise for consideration	by the Full Court	if leave were
granted.

In those circumstances these seem to be approprlate

cases in Nhich le?ve t3 appeal should be granted. In saying

that, I am, of course, expresslng no view wharever, and I

my view it would not be approprlate for me to express any

view, as to che correctness or otherwise of the decision of

the Supreme Court. However, having regard to what has been

said here today, I think that fairly plainly leave to appeal

- should be granted m respect of both appllcatlons. I grant

your clients that leave and perhaps should formally dlrect, as I said earlier, that the matter of the balance sheet be

i

dealt with in a formal way by the flling of a supplementary

affidavit referrlng	to It and exhibltlng the correct
documents:

Costs are reserved.

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