Melbourne Trust Ltd v Federal Commissioner of Taxation [1929] HCA 30; (1929) 43 CLR 25 (28 October 1929)

HIGH COURT OF AUSTRALIA

The Melbourne Trust Limited Appellant; and The Federal Commissioner of Taxation Respondent.

H C of A

28 October 1929

Knox C.J. Isaacs, Gavan Duffy, Rich and Starke JJ.

Ham K.C. and Martin, for the appellant.

Cohen K.C. and Tait, for the respondent.

Ham K.C.

Knox C.J.

The answers to those questions depend on inferences to be drawn from facts and do not involve questions of law. In these circumstances we think that we ought not to answer the questions asked, but we think that the case should be sent back to the trial Judge for the purpose of having those facts decided.

Isaacs, Gavan Duffy and Starke JJ.

concurred.

Rich J.

I dissent. Questions 1 and 2 are obviously questions of law. Question 3 amounts to this: Whether, within the meaning of the Act, the business of the Company in all its branches is one. The ultimate facts having been agreed upon, that, in my opinion, is a question of law.

In Hoddinott v. Newton, Chambers & Co.[1] Lord Macnaghten considered that the question whether a temporary staging is a scaffolding within the meaning of the Workmen's Compensation Act 1897 is not a mere question of fact:—"It is a mixed question of fact and law. When the facts are ascertained it is a question of law on which the Court of Appeal is entitled, and I think bound, to express an opinion." And this Court entertained a somewhat similar question under the War-time Profits Tax Assessment Act 1917-1918 in Hickman v. Federal Commissioner of Taxation[2].

Case remitted.

Solicitors for the appellant, Blake & Riggall.

Solicitor for the respondent, W. H. Sharwood, Commonwealth Crown Solicitor.

[1] (1901) A.C. 49, at p. 56.

[2] [1922] HCA 58; (1922) 31 C.L.R. 232.