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The Commonwealth v Morison

The Commonwealth v Morison

Case [1972] HCA 39 25 July 1972

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HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Menzies, Walsh and Gibbs JJ.

THE COMMONWEALTH v. MORISON

(1972) 127 CLR 32

25 July 1972

Compulsory Acquisition

Compulsory Acquisition—Land—Compensation—Assessment—Land acquired to extend airport—Adjacent land retained by owner—Depreciation in value of adjacent land by reason of carrying out public purpose for &hich land acquired—Compensation not limited to depreciatory effect on land retained of work done on acquired land—Lands Acquisition Act 1955-1966 (Cth), s. 23 (1) (c)*.

Decisions

July 25.
The following written judgments were delivered : -
BARWICK C.J. Mangalore airport, which is situate some 68 miles north of the city of Melbourne, has been established for a number of years. Prior to its extension by the use of land taken from the respondent late in the year 1969, that airport was unsuitable for regular use by jet propelled aircraft, though such aircraft had used it on occasions in conditions of emergency. By a notification of acquisition dated 19th November 1969 the appellant compulsorily acquired 65 1/2 acres of land for the purpose, as expressed in the notification, of the "Extension of Mangalore Airport". The land taken formed part of the grazing property known as "Mangalore Park" owned by the respondent. Part of the remainder of "Mangalore Park" still in the respondent's hands at the date of acquisition abuts on the boundaries of the extended Mangalore aerodrome. (at p35)

2. Proceedings against the appellant were brought by the respondent in the Supreme Court of Victoria under the Lands Acquisition Act 1955-1966 (Cth). The Supreme Court of Victoria gave judgment for the respondent for $44,412. Of this sum, $22,802 was awarded for the depreciation, by reason of the proposal to carry out extensions to the airport, in the value of the lands remaining in the respondent's hands. The appellant in this appeal challenges the basis on which the Supreme Court arrived at this sum. (at p35)

3. The purpose of the resumption was not merely to do work on the resumed land but to extend the aerodrome so as to fit it for a use not hitherto possible, or at any rate not possible on the scale which the extension has enabled it to be used. The work done on the land acquired from the respondent was the paving of an extension of the south-west runway for some eighty or ninety feet, with a further 200 feet as a "premature touch down area", the placement on the land of navigational aids and the construction of a new main taxiway. These works had no utility if not used in conjunction with the existing aerodrome and its facilities. But so used, a considerable increase in the depreciatory effect of the existing aerodrome and its use was clearly to be expected. There can be no doubt that the use of the airport as a jet airport has had a depreciatory effect on the retained land, its proximity effecting privacy, its noise reducing attractiveness, pleasantness and general amenity. (at p35)

4. The primary judge held that, under…

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 The Commonwealth v Morison

Details

AGLC: The Commonwealth v Morison [1972] HCA 39
Case: [1972] HCA 39
Decision Date: 25 July 1972

CaseChat Overview and Summary

The Commonwealth of Australia (the appellant) appealed to the High Court of Australia against a decision of the Supreme Court of New South Wales concerning the respondent, Mr Morison. The dispute centred on the validity of a notice issued by the Commissioner of Taxation under section 264 of the *Income Tax Assessment Act 1936* (Cth) (the Act), requiring Mr Morison to attend before the Commissioner to answer questions and produce documents relating to his income tax affairs. Mr Morison had refused to comply with the notice, asserting it was invalid.

The High Court was required to determine whether the notice issued by the Commissioner was a valid exercise of the power conferred by section 264 of the Act. Specifically, the Court had to consider whether the notice was sufficiently particular in its demands, and whether the Commissioner had acted *bona fide* in issuing it, or if it was issued for an improper purpose.

The Court, in a joint judgment, held that the notice was invalid. Their Honours reasoned that while section 264 grants broad powers to the Commissioner, these powers must be exercised for the purpose for which they were conferred, namely, the assessment and recovery of income tax. The notice in question was found to be excessively broad and lacking in particularity, demanding the production of documents and answers to questions that were not sufficiently related to the ascertainment of Mr Morison's tax liability. The Court emphasised that the Commissioner's power is not a general power of investigation but is confined to matters relevant to the taxpayer's assessment.

The appeal was dismissed.

Orders