Gaal v Wilson [1956] HCA 52; (1956) 96 CLR 522 (31 August 1956)

HIGH COURT OF AUSTRALIA

GAAL v. WILSON [1956] HCA 52; (1956) 96 CLR 522

Income Tax (Cth.)

High Court of Australia
Dixon C.J.(1), Williams(1), Fullagar(1), Kitto(1) and Taylor(1) JJ.

CATCHWORDS

Income Tax (Cth.) - Group employer - Tax deductions from employees' wages - Failure to pay deductions to commissioner as required by law - Prosecution - Whether taxation prosecution - Summary proceedings - Conviction - Imposition of pecuniary penalty - Order for imprisonment if penalty not paid by stipulated date - Validity of order - Income Tax and Social Services Contribution Assessment Act 1936-1954 (No. 27 of 1936 - No. 43 of 1954), ss. 221F (5) (a) (11) (12) , 222, 233, 243, 247. These sections are set out on pp. 523, 524 (post).

HEARING

Sydney, 1956, August 31. 31:8:1956
MOTION ON NOTICE.

DECISION

The judgment of the COURT was delivered by DIXON C.J. : -
In our opinion special leave to appeal should be given and the appeal should Pt. VII of the Income Tax and Social Services Contribution Assessment Act 1936-1954 because it is not a proceeding by the Crown for the recovery of a pecuniary penalty under that Act : see s. 222. The jurisdiction of the court of petty sessions to hear it as a summary offence arises by reason of s. 68 of the Judiciary Act 1903-1955 and s. 43 of the Acts Interpretation Act 1903-1950. Section 39 of the Judiciary Act, of course, is a standing provision conferring federal jurisdiction. We think, however, that so much of the order made by the magistrate as "adjudges that if the amount of the said sum should not be paid on or before 23rd November 1955 the defendant should be imprisoned in terms of the Income Tax and Social Services Contribution Assessment Act 1936-1954" is not in accordance with law. But we think that the whole proceeding should be remitted to the court of quarter sessions to deal with according to law. (at p525)

2. The order will be: Special leave to appeal granted. Appeal allowed. Order of court of quarter sessions set aside. Cause remitted to the court of quarter sessions to deal with according to law. Pursuant to the appellant's undertaking, the appellant is to pay the respondent's costs of the application for special leave and this appeal. (at p525)

ORDER

Order accordingly.