Downie v Thomas [1924] HCA 52; (1924) 35 CLR 299 (5 December 1924)

HIGH COURT OF AUSTRALIA

Downie (Deputy Federal Commissioner of Taxation for Tasmania) Plaintiff, Appellant; and Thomas Defendant, Respondent.

H C of A

On appeal from the Supreme Court of Tasmania.

5 December 1924

Knox C.J., Isaacs and Starke JJ.

Brissenden K.C. (with him Keith Ferguson), for the appellant.

Halse Rogers (with him W. B. Simpson), for the respondent.

The judgment of the Court (which was delivered by Knox C.J.) was as follows:—

Knox C.J.,

Isaacs and Starke JJ.

In this case the appellant sued the respondent in the Local Court at Hobart to recover the amount of income tax alleged to be due by him, and an objection was taken that the plaintiff should be nonsuited under sec. 34 of the Local Courts Act 1896. That objection was referred to the Full Court of the Supreme Court of Tasmania, and a nonsuit was entered for the reasons stated by the learned Chief Justice and Crisp J. We think the decision of the Supreme Court was wrong. Sec. 33 of the Act provides that every Court held under the Act shall have jurisdiction throughout Tasmania but that the plaintiff shall file his plaint in the Court having jurisdiction to the amount claimed nearest to the place where the defendant dwelt or carried on business or "in the Court having jurisdiction to the amount claimed nearest to the place where the cause of action, either wholly or in part, arose." There is no doubt that this cause of action arose in part in Hobart. A "cause of action" consists of every material fact which the plaintiff must prove if his claim be disputed; and in this case the cause of action includes the assessment, which apparently was made in Hobart, and the notice of the assessment sent from there (Income Tax Assessment Act 1922-1923, secs. 35, 40, 57). It follows that the appellant was entitled under the provisions of sec. 33 of the Local Courts Act to bring his action in the Local Court at Hobart. But the respondent relies on sec. 34 of that Act, which provides that if on the trial of the action it shall appear to the Court that at the time of the commencement of the action another Court of competent jurisdiction appointed under the Act was nearer by not less than five miles to the place where the defendant dwelt or carried on business, "and also to the place where the cause of action wholly arose," the plaintiff shall be nonsuited. But the cause of action in this case did not wholly arise at a place nearer by not less than five miles to Latrobe than to Hobart, and it follows that sec. 34, so far as it provides for the granting of a nonsuit, has no application.

For these reasons we are of opinion that the appeal should be allowed.

Appeal allowed. Judgment appealed from set aside. Verdict for plaintiff to stand. Appellant, pursuant to his undertaking, to pay costs.

Solicitor for the appellant, A. Banks Smith, Crown Solicitor for Tasmania.

Solicitors for the respondent, Simmons, Wolfhagen, Simmons & Walch, Hobart.