Re John Kenneth Land and Betty Noreen Land v Commissioner of Taxation [1991] FCA 48; (1991) 13 Atpr 41-082/98 ALR 200 (26 February 1991)

FEDERAL COURT OF AUSTRALIA

Re: JOHN KENNETH LAND and BETTY NOREEN LAND
And: COMMISSIONER OF TAXATION
Nos. V G109 and G110 of 1990
FED No. 38 [1991] FCA 48; (1991) 13 ATPR 41-082/98 ALR 200

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Jenkinson J.(1)

HEARING

MELBOURNE
26:2:1991

Counsel for the Applicant: Mr G. Davies

Counsel for the Respondent: Dr S. Kenny

Solicitors for the Applicant: Norris, Coates and Hearle

Solicitor for the Respondent: Australian Government Solicitor

ORDER

Each appeal be dismissed.

The respondent's costs of each appeal be paid by the applicant.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

Appeals from decisions of the Administrative Appeals Tribunal

Each applicant was at relevant times a member of a partners hip, the principal asset of which was a piece of land of about 60 acres in an outer suburb of Melbourne. On sales of parts of the land the respondent treated the profits on the sales as assessable income of the partnership and by an amended assessment in respect of each of the years of income ended 30 June 1981, 1982 and 1988 included in the assessable income of each applicant the amount by which that applicant's individual interest in the net income of the partnership of that year of income had been augmented by the profits referable to that year of income. Each objection against those assessments having been disallowed, the decisions were referred to the Administrative Appeals Tribunal, by which the references were heard together on 14 and 15 February 1989. After hearing the final submissions of counsel for the applicants, Deputy President Gerber, by whom the Tribunal was constituted, gave his reasons for his decisions, by which he confirmed each of the referred decisions, without having invited any final submission by counsel for the respondent.

2. Several of the grounds of appeal assert the absence of any evidence for a finding made by the learned Deputy President. Other grounds assert that there was a failure on Dr Gerber's part to satisfy a requirement of procedural fairness in the finding by him of a fact concerning which an applicant could have been expected to be able to give, or to adduce, relevant evidence, but concerning which, it was contended, he had not been afforded the opportunity to give or adduce evidence. I set out the whole of the reasons for decision, wherein the applicants are given the pseudonym Farmer:

"1. In this case I see no need to call upon Dr
Kenny, counsel for the Crown, to address me on the facts
or the law. Mr Davies has said all that can possibly be
said in favour of the applicants and said it eloquently
and well. However, in the end I find the facts so
overwhelmingly against the taxpayers that an address from
the Crown would be a waste of time. Indeed, if ever
there was a case in which one could apply the rule of
evidence res ipsa loquitur, this is it; the facts speak
for themselves.
2. The applicants, Mr and Mrs Farmer, are two of
four partners who acquired some 60-odd acres from one M
at Bundoora, near Preston and - more significantly - a
mere stone's throw from what is now Latrobe University.
I shall henceforth refer to the property as the `McLeans
Road' property. The issue before me today concerns only
Mr and Mrs Farmer who, between them owned, for practical
purposes, one half of the land (ignoring, for present
purposes, the interposition of a superannuation fund).
The years in question are 1981, 1982 and 1988. The other
partners are Mr and Mrs Barley.
3. Mr Farmer deposed that at some time in 1964, he
had agreed to join Mr Barley in a joint venture involving
a licensed grocery. However, Mr Farmer claimed to have
been relieved when an application for the licence was
denied. The result of this failed application was to
prove fortuitous, since it left Mr Barley with 4000 in
ready cash - an amount required to be held on hand when
applying for a licensed grocery business - and which was
to be put to good use.
4. As luck would have it, just when the licensed
grocery business fell through, out of the blue comes
Cyril Hate, of Hate and Wild, estate agents, with the
suggestion that some land which they had on their books
would be a suitable acquisition for Mr Farmer. The
property was at Bundoora, 24 acres of which were on one
title, the other 36 acres on another. The price was
36,000 pounds. Why Cyril - whose firm was a client of Farmer's
practice - thought that his chartered accountant was
interested in acquiring a farm was not made clear.
36,000 pounds was not an insignificant amount at that time -
and certainly a sum which the Farmers could not readily
obtain from their own resources. So, having been
frustrated in becoming a licensed grocer, Farmer
approaches Barley with an invitation that they should
become farmers instead. It seems that after a cursory
inspection by both gentlemen, they and their wives
proceeded to buy McLeans Road for the asking price. No
projection of the farm's potential for profit was
undertaken by anyone. It is now solemnly alleged by both
gentlemen that they bought the property because both felt
a sudden yen `to unwind on the farm' - Mr Barley put it
poignantly: `to learn farming and to enjoy the life of
farming'.
5. It was readily conceded that, as a farming
venture, the undertaking was singularly unprofitable and,
indeed, had no commercial possibilities. Its previous
history as a farm was bleak. It appears that in 1962, Mr
M, the vendor, after an unsuccessful attempt to obtain a
permit to subdivide the property, applied to the
appropriate Authority for reconsideration of his earlier
application to have this land included in a re-zoning
plan. He stated as his reason `that owing to high rates
et cetera, I cannot farm this area profitably'. These
documents were readily available to anyone doing the
appropriate searches. The witnesses denied having seen
them at any time.
6. On the whole of the evidence, when viewed
against the background of what preceded and followed the
acquisition of this property, I reject the claim that the
land - at 600 pounds an acre - was acquired as `a relaxing farm
venture' for the four partners.
7. I now turn to the contract of sale. At the
request of the buyers, the following special clause was
inserted:
`4. Subject to the sum of 20,000 pounds (including
the deposit) of the purchase money having been
paid to him, the Vendor agrees to deliver
Certificate of Title Volume 1234 Folio 567 and a
registerable Transfer thereof to the purchasers
upon such Transfer being tendered to him by them'.

Payment was to be on the following terms:

`(a) a deposit of 8,000 pounds - of which 1000 pounds shall
be paid on or before the signing hereof - and
7000 pounds within ninety days after the date hereof:
(b) The residue as follows: Within five years
from and after the date on which we shall become
entitled to possession, without interest, by
three yearly instalments of not less than 4000 pounds
each at the expiration of one, two and three
years from the said date of possession - by a
further instalment of not less than 6000 pounds at the
expiration of four years from the said date of
possession and by a final payment at the
expiration of five years from the said date of
possession of the balance of purchase money then
remaining unpaid.'

3. These terms were, to say the least, highly favourable to the purchasers. Indeed, according to Mr Hate, a partner of the firm of estate agents which sold the property to the taxpayers, these conditions for all practical purposes reduced the purchase price from 600 pounds to 500 pounds per acre. Notwithstanding Mr Davies' eloquent attempt to put a more benevolent a construction upon the special condition, I am satisfied on the evidence that it was inserted in the hope, subsequently realised, that one of the two allotments could be sold to pay the balance of the monies owing.

4. I am furthermore satisfied on the evidence that the purchase price was vastly in excess of the value of the property viewed simply as a farm. However, given its subdivisional potential at the time, it was a bargain. Mr Murphy, a valuer called by the respondent, deposed that there were rural properties available at that time some 10 or 15 kilometers further up towards the Yan Yean Dam, where farming land could have been purchased for something of the order of 200 pounds an acre. In other words, the sudden `back to the land' syndrome, exhibited by all four taxpayers in this case, could have been satisfied at vastly less expense within a ten minute longer drive from their respective homes and offices.

5. That the McLeans Road property had subdivisional potential at the time of acquisition by these taxpayers was amply demonstrated by Mr Murphy, who deposed that in July 1964 (i.e. within days of the acquisition of the McLeans Road property by these taxpayers), another similar `farm', some 10 kilometers south of the subject property, but within the same radius from Melbourne, was sold for in excess of 900 pounds an acre.

6. I am satisfied that Messrs Hate and Wild, the local real estate agents, had not only been aware of that sale, but were keenly alive to the fact that the McLeans Road property was being offered at a price substantially below its real value. Unfortunately, since the import of Mr Murphy's evidence had not been realised by the respondent, Mr Hate was not cross-examined on this aspect and no reason was advanced why Mr Wild, his erstwhile partner who had been actively involved in the impugned transaction, was not called as a witness. I was informed that Wild was alive and well. In other words, the explanation offered by each of the applicants in support of `farming' is not only implausible, it defies belief when examined against subsequent events. To the extent that Mrs Farmer supported the evidence of her husband as to the purpose of acquisition, I must reject it. I am satisfied that she did her best to be truthful. However, I am also satisfied that she took no active part in the commercial decisions of her husband.

7. Having heard the evidence of the two male partners, I am satisfied that they were the eminences grise behind this venture. I reject out of hand the pious assertion that two professional gentlemen, one a builder and developer, the other an accountant, suddenly buy a property to learn farming, and that nothing is further from their minds than that the `farm' would lend itself to profitable subdivision. Yet, in the very next year - 1965 - we have Messrs Farmer and Barley not only acquiring a six acre property belonging to a Mrs Perrywinkle, situated on the other side of the road beyond the creek from McLeans Road, but they proceed almost immediately to make an application to subdivide the property, notwithstanding that it is zoned `reserved living'.

8. There is some confusion as to how Mr Farmer became involved in the Perrywinkle property. There was, he claimed, a `rumour' that he had an option over the whole property, when he had, in fact, a mere twenty-five per cent interest in it. I find that nothing turns on this. What I find is highly relevant is that within a year of acquiring the McLeans road property, these two gentlemen are happily subdividing six acres a stone's throw away from the 60 acre property they had recently acquired, as a hobby farm, that is at a time when, so it is said, it never occurred to them that the McLeans Road `farm' opposite had subdivisional value. Indeed, that thought allegedly only crossed their mind the following year when, lo and behold, Cyril Hate informs these gentlemen that his firm has a property developer who is interested in buying the 60 acres. The price was not disclosed, but I was given to understand that it involved `a not insubstantial profit'. This offer is seriously considered by these two farmers, and it is only when they discover that the offer is conditional upon subdivisional approval being granted that they decide `well, if there is to be a profit in subdividing, we might as well have it rather than this developer'. No sooner said than done. An application for subdivision is lodged by the applicants there and then.

9. In short, within less than two years after acquiring their farm, the partners apply to subdivide it for residential purposes.

10. The first subdivisional application is made on 13 September 1966 - Mr Barley put it disarmingly - `in order to test the value of the land at that time'. I find this explanation highly imaginative. I take the view that at that stage it was quite clear to both gentlemen that is was time to start subdividing.

11. I am satisfied that the fact that some desultory farming activity was carried on in the short time between acquisition and active subdivision does not qualify the partners' main or dominant purpose in acquiring the McLeans Road property, which purpose, I find, was at all times to subdivide the land when the time was `ripe'. It was, in other words, a classic profit-making undertaking or scheme. In any event, what little `farming' was done hardly qualifies as an agricultural pursuit.

12. In the events that transpired, the application in September 1966 for subdivisional approval is rejected, and a further letter is written by the partners on 10 February 1967 in the following terms:

`Dear Sir: We are the owners of a property of
approximately 60 acres situated in McLeans Road,
Bundoora. On 13 September 1966, application was
made to the Melbourne Metropolitan Board of
Works for a permit to subdivide the land and
this application was refused on 27 October 1966.
On 19 January 1967, the Board of Works was asked
by letter, sent by our solicitors, Messrs Gair
and Brahe, if they would reconsider the refusal
of permit in view of the developments which have
taken place in the area since lodgment of our
original application.
We, as the applicants, feel that a letter from
your Council to the Board of Works, supporting
our remarks, on the present stage of development
together with the comments of Council Officers
would be of considerable assistance to our
present application for review. In support of
this request for a letter from Council we submit
the following comments for consideration.
Since lodgement of our original application,
September 1966, the following developments have
taken place in this area.
1. A 6" water service is presently being laid
in Settlement Road from the Yan Yean pipe track
to a point 200' west of the Aqueduct.
2. The open Maroondah Aqueduct is being piped
thus eliminating any risk of water pollution.
3. House building is proceeding rapidly at the
Latrobe Home Developers estate in Settlement
Road where one of the applicants is building.
4. A plan of sub-division has been sealed for
land opposite the applicant property immediately
west of the Darebin Creek in Settlement Road.
The owners of the 60 acre property are also the
owners of this property and intend to build
houses thereon.
5. Approval has been given for commercial
development on land on the South West corner of
McLeans Road and Plenty Road.
We wish to draw Council's attention to the
following points:
(a) The applicants intend to build brick veneer
homes of various designs on the subject land.
(b) One of the applicants is finding it
difficult to procure sufficient land to operate
his building business. The amount of land
available to this applicant who is prepared to
build extensively in your shire is expected to
last only until the end of 1967.
(c) If the McLeans Road property were released
for sub-division now there would be a time lag
of approximately 18 months before allotments
would be available for building purposes.
It would be appreciated if Council would
consider the matters outlined above and if you
are in agreement therewith, we would be grateful
if a letter could be forwarded to the Board of
Works supporting our application for review."

This is followed by a further letter on 13 March 1968, which states:

`Dear Sir
Enclosed herewith is our application for permit
to sub-divide land in Bundoora.
We draw to your attention the following points
which may assist you in your decision.
I. The applicants are currently developing
land on the southern side of Settlement Road
immediately south of the subject land, and
building thereon.
II. Applicant and partner Barley is an estate
builder, controlling enterprises which are
building new homes at the rate of approximately
one hundred per annum.
III. These figures can be substantiated by the
Building Surveyor, Shire of Whittlesea.
IV. The applicants undertake to erect houses
on no less than 60% of the proposed allotments.
V. Applicant and partner Farmer (Public
Accountant) has been Secretary of land
sub-dividing Companies, and is experienced in the
methods of procedure of this type of business.
It is our submission that the subject land lends
itself favourably to Residential `C` development
being attractive in contour and conveniently
situated to local amenities and services.
A sketch plan of the proposed type of
development is enclosed.'

13. I find it highly significant, furthermore, that at the time of acquisition, it was strongly believed by most interested parties that Bundoora would be the site of Victoria's third university. I find, on balance, that this was known to Mr Farmer, if only through his connection as Treasurer of the local Rotary Club, which was highly vocal in supporting Bundoora as the most appropriate site for the university. Thus, at a Rotary director's meeting on 6 May 1964, i.e. some seven weeks before the acquisition of the McLeans Road property, it was resolved:

`that a sum not exceeding 50 pounds be made available,
if required, for production of the brochure
supporting Bundoora as the site for the third
university'.

Whilst Mr Farmer was admittedly absent from this meeting, I find it improbable that he was unaware of the Club's support for the siting of Victoria's third university at Bundoora. Further support for this is found in exhibit 3, a document headed `Bundoora, Ideal Site for Melbourne's Third University' which was published on the initiative of several local bodies, as evidenced by the minutes of a meeting of directors of the Rotary Club dated 3 June 1964:

`President Royce reported that a Committee
representing Municipalities and Service Clubs
has now been formed. Our Rotary Club is
represented and our members are expected to
continue to do anything possible to further the
project. Directors congratulate and thank
President Royce and Ray for the excellent work
they are putting into this project.'

Although Mr Farmer was, once again, absent from that meeting, I am satisfied that he was keenly aware of the proposal that Bundoora should become the site of yet another university, and, should this eventuate, that McLeans Road would become an ideal acreage for subdivision. I am also satisfied that this prospect loomed large in his thinking at the time the property was acquired.

14. I therefore have no hesitation in rejecting the evidence of these taxpayers that they acquired the McLeans Road property for farming purposes. Indeed, I am satisfied beyond all reasonable doubt that the property was acquired for a sec 26(a) purpose; i.e. either for resale at a profit or for a profit-making undertaking or scheme within the meaning of that section.

15. It follows that I reject the evidence that the property was originally acquired as a farm, and that it was only well after its acquisition that the applicants became aware of its potential for subdivision.

16. Dealing briefly with Mr Davies' argument, he submitted that if a property is acquired for purposes of farming, any profit generated by its subsequent subdivision and sale as suburban plots is merely part of the process of realising a capital asset. Not surprisingly he placed great reliance on the decisions in Scottish Australian Mining Co Ltd v FC of T [1950] HCA 3; (1950) 81 CLR 108 and Statham and Anor v FC of T 89 ATC 4070, the latter being a (successful) appeal by a taxpayer from a case I heard at first instance on facts which, so it is claimed, are indistinguishable from those presently before me.

17. Notwithstanding Mr Davies' formidable argument, I find the present facts readily distinguishable from those authorities, in each of which the subject property was acquired with no subdivisional purpose in mind; a far cry from the facts as I find them to exist in this case. In the circumstances, I do not propose to consider these authorities further because I hold them irrelevant.

18. In summary, I reject out of hand the proposition that the McLeans Road property was acquired for farming purposes for the following reasons: Mr Farmer did not claim to have any interest in farming or a farming background. He is an accountant by profession engaged in private practice in Preston. Mrs Farmer is predominantly engaged in domestic duties. Mr Barley is a builder; I know nothing about his wife. No projections of any kind of the farm's viability were undertaken. For good measure, Mr Farmer and Mr Barley have been friends since 1948 and enjoyed a professional relationship as accountant and client. It became clear that in or around 1964, they were anxious to join together in a business venture of one kind or another. It was an accident of fate that they became developers rather than licensed grocers. Neither witness left me with the impression that I could accept his evidence without hesitation.

19. For the above reasons I confirm the Commissioner's decision on the objections in the three years before me."

20. It was said that there was no evidence to justify the assertion contained in the penultimate sentence of paragraph 5 of the reasons. And it was said that procedural fairness had not been accorded the applicants, in that no witness had been asked whether the assertion was correct.

21. The assertion can be seen, upon a consideration of the whole of the reasons, to form no part of any process of reasoning to any finding adverse to the applicant's interest. The uncontradicted evidence of the applicant John Kenneth Land that he sought not to know whether profits might be made out of farming the land, but merely to know that the losses would not be so great as to embarrass the applicants financially, was accepted by the Tribunal : see the penultimate sentence of paragraph 4 and a similar statement in the middle of paragraph 23.

22. The phrase 'subsequently realised" in the final sentence of paragraph 8 was said, correctly in my opinion, to amount to an assertion that the hope, that one of the two allotments of which the land the subject of sale to the applicants consisted would be sold in time to make available to the applicants the proceeds of the sale by them for disbursement by them in or about September 1969 as part of the payment of the residue of the purchase price of the land they had bought, was in the event fulfilled. But no sale of any part of that land in fact occurred until 1971. The learned Deputy President's assertion is wrong. I defer further consideration of that circumstance.

23. It was said that there was no evidence to justify the finding that the applicants entertained the hope specified in the last sentence of paragraph 8. But, although Mr Land gave evidence that his hope was not to sell, but to mortgage part of the land in order to procure the funds with which to pay the residue of the price, there was evidence of activities by the applicants and their partners in 1966, in seeking permission to subdivide, from which the Tribunal might without error of law have inferred the existence of the hope imputed to the applicants.

24. The last sentence of paragraph 9 appears to have relevance to - and to have been directed by the Deputy President to - the question whether the land was bought with the intention, on the part of the applicants, that it should be used for farming and without an intention that it be bought for the purpose of profit-making by sale. The unexpressed premise would seem to be that sensible adults do not buy what they want, in this case land for farming at a convenient distance from home and place of business, at a price much higher than the price for which what they want is available. It was submitted that there was no evidence to justify the finding (made by the Deputy President and essential to the conclusion towards which paragraph 9 must be supposed to have been directed, namely that the land was bought for a purpose other than farming) "that there were rural properties available at that time some 10 or 15 kilometers further up towards the Yan Yean Dam, where farming land could have been purchased for something of the order of $200 an acre".

25. There was evidence to support a finding that the market value of some rural properties in what may for convenience be called the Yan Yean area was of the order of $200 per acre several years after the time when the applicants bought the subject land, and a finding that the value was not significantly different at the time of that purchase. That evidence was grounded on prices agreed to be paid for such rural properties on sales made several years after the purchase of the subject land. Mr Davies of counsel for the applicants submitted that on the whole of the evidence the Tribunal had no basis for a finding as to the value of farming land in the Yan Yean area at any time, but I think it was open to the Tribunal to make the findings as to value which I have stated. What was lacking was evidence of the availability of any such a rural property for purchase at about the time when the applicants bought. It was further submitted that the applicants had been denied procedural fairness in that neither they nor the estate agent called as a witness by their counsel had been alerted to the risk that the Tribunal might reason, to a conclusion that the subject land had been bought for the purpose of resale at a profit, by the step s which are revealed by the content of paragraph 9.

26. Both grounds of attack founded on paragraph 9 must be considered in the context of the conduct of the proceeding before the Tribunal. The uncontradicted evidence was that a member of a real estate agency firm had proposed the sale, at the price in fact paid, to the applicant Mr Land, who had a professional relationship with the firm, which carried on business in the area where the land lay, as did Mr Lan d. It was clear on the first day of the hearing that counsel for the respondent Commissioner was seeking to induce a finding that the price paid for the subject land was an appropriate price only if the land were perceived at that time by informed buyers and sellers as likely to be soon permitted, and as suitable, to be subdivided into residential allotments, and that the appropriate price for farming land in the area was very much less than the price paid. If counsel for the Commissioner were successful in persuading the Tribunal to make those findings, there was good reason to expect that the Tribunal would further find that Mr Land's belief at th e time of the purchase was in substance to the effect of those findings, he being then an accountant in practice in the area. Although Mr Land gav e evidence that the propinquity of the land to his home and his office was a circumstance greatly enhancing the attraction of the subject land for him and his wife, his failure to make enquiry, before purchasing the land, as to whether other suitable farming land of similar propinquity and of a price appropriate for farming land was available could be expected to give rise to a strong inference that it was not only farming that he intended. If by the phrase "available at that time" were meant "being offered for sale in the week, or the month, in which the subject land was bought", the observation by the Deputy President was plainly without any evidentiary basis. But if the learned Deputy President had intended merely to indicate that in the Yan Yean area at that time the price of farming land was about $200 per acre and that in or about 1964 such land could have been bought at that price, the finding could be justified as based on common human experience that in an area of settled land some parcels will from time to time become available for sale. I am not persuaded that it was the former meaning which was intended. There was no suggestion that the applicants had conceived a desire to acquire a farm without any delay. So far as the evidence showed, the desire to acquire a farm either had its genesis in the unsolicited offer by the estate agent or, if the desire had preceded the offer, no action designed to gratify the desire had preceded the offer. In those circumstances counsel for the applicants ought, in my opinion, to have perceived that, as the findings about land values which I have indicated might be made, any evidence to show a particular attraction of the subject land (other than its subdivisional potential) for the applicants, in comparison with other farming land at about $200 per acre in the general area in which their home and Mr Land's office were situated , ought to be adduced in order to rebut the inference that it was that subdivisional potential which induced the applicants promptly to pay $600 per acre on the first occasion when, so far as appeared, an offer to sell them farming land in that area was made to them. I do not think that a failure to accord procedural fairness in relation to the matters contained in paragraph 9 has been shown.

27. The description, in paragraph 10 of the reasons, of a piece of land therein identified as "similar" to the subject land was attacked as a finding unsupported by evidence. In particular it was said that, because the planning legislation zoning of the other land indicated that permission to subdivide it could be more confidently expected than was the case in respect of the subject land, there could be no reasonable conclusion of relevant similarity. But the learned Deputy President may have discerned in the circumstances that both pieces of land were within what he regarded as an area where the zoning of land was tending towards changes in favour of residential subdivision and that both pieces of land were in July 1964 being used as farms a relevant similarity. Even if on the evidence this court were to conclude that the logic of the conclusion as to similarity was questionable, it is not in my opinion possible to impute legal error to it: see Australian Broadcasting Tribunal v. Bond [1990] HCA 33; (1990) 64 ALJR 462 at 477-479, per Mason, C.J.

28. The finding stated in paragraph 11 of the reasons for decision that "Messrs. Hate and Wild ... had been aware" of the sale at $900 per acre of the land to which reference is made in paragraph 10 was said to lack an evidentiary basis. But the evidence that those two gentlemen were at that time carrying on business in the general area where the land was, combined with the Deputy President's knowledge of the information which estate agents habitually take pains to acquire for the purpose of carrying on business, would justify the finding, in my opinion. Complaint was made that reasons were stated to the Tribunal as to why "Mr Wild ... was not called as a witness." But the statement to the contrary may reasonably be understood as an assertion that no sufficient reason had been stated. It is inconceivable that the learned Deputy President had forgotten the discussion on the previous day about Mr Wild's unwillingness to give evidence.

29. The error disclosed by the words "subsequently realised" in paragraph 8 of the reasons for decision could not reasonably be supposed to have deprived the applicants of a chance of succeeding in the proceeding in the Tribunal. Accordingly I decline to allow the appeals on the ground established. Each appeal will be dismissed.