1898

THE

UNION BANK

OF

AUSTRALIA
LIMITED

v.

DEAN (No. 2).

Hood, J.

rather, in certain cases, it prevents a defence unless by special
leave. The defendant is not to appear and defend unless he
gets permission, but when he gets that permission he becomes
subject to the Judicature Act and Rules. Such a defendant
is within the words of Order XIV. He has appeared to
a writ of summons specially indorsed, assuming that the
writ is regular in other respects, and I can see no reason
for holding him exempt from the consequences of that order
simply because the writ has been issued under the provisions
of the Instruments Act. It has been decided that a writ
under the Instruments Act may be a specially indorsed
writ under Order III., r. 6, if in the prescribed form: Ross v.
Taylor (d); Gerty v. Morrah (e). If such a writ may be
specially indorsed for some purpose there is nothing in the
inherent nature of the writ to exclude it from the operation of
Order XIV. It was urged, however, that as the defendant has
obtained leave to appear and defend, a successful application
under Order XIV. would deprive him of his leave to defend.
This is not correct. Leave to defend means that the defendant
is to be at liberty to defend the action notwithstanding that
the proceedings have been commenced under the Instruments
Act, but it does not mean that he is to be free from the
ordinary procedure. In the present case the defendant obtained
leave to defend on showing facts which called upon the plaintiff
to prove consideration. But if the plaintiff can prove considera-
tion, and no answer can be suggested, why should the real object
of the rules be defeated by allowing the defendant to go to trial
when there can be nothing to try. On the merits I am inclined
to think that the plaintiff is entitled to recover the full amount
claimed, but there seems to be some confusion in the affidavits,
of which I propose to give the defendant the benefit. On his
own showing, however, he owes 440l., and I order judgment to be
entered for that amount, and the defendant may defend as to
the balance. The costs of this application and of the action up to
date and of entering up judgment to be plaintiff's costs in the
I gather from another report of Sargood v. Britten (f)
(d) [1886] 7 A.L.T. 145.
(e) [1889] 15 V.L.R. 510.

cause.

(f) 3 A.L.R. 88.

that the defendant there had obtained leave to defend by show-
ing a defence on the merits. If so I would probably agree with
the result of the case but not with the reasons given for it.

Solicitors for plaintiff: Blake & Riggall.
Solicitor for defendant: Dixon.

1898

THE UNION BANK

OF

AUSTRALIA
LIMITED

V.

DEAN (No. 2).

W. H. M.

Hood, J.

THE QUEEN v. AUSTIN AND OTHERS.

F.C.

1898

Administration and Probate Act 1890 (No. 1060), s. 115-Probate duty-Trans·ference of property in alleged evasion of duty-Parties chargeable with duty- September 8, 9. Liability of executors-Parties.

An information was laid by the Crown against executors, claiming payment of probate duty on properties alleged to have been transferred by their testator with intent to evade payment of probate duty under Act No. 1060. The executors objected by their defence that no claim existed against them as defendants, and further, that the various transferrees of the properties transferred in alleged evasion of the duty were necessary parties.

Held, that the executors were necessary parties to the suit, and that in the circumstances of this case the transferrees should also be joined as parties. Judgment of Madden, C.J. (ante, p. 12) disagreed with.

THIS was an appeal from an order of Madden, C.J.

The facts and arguments are fully set forth in the previous report of the case (ante, p. 12).

Box (Topp with him) for the plaintiff (appellant).

Higgins and Cussen (Hayes with them) for the defendants (respondents), who were the executors of the testator, James Austin.

WILLIAMS, J., delivered the judgment of the Court [WILLIAMS, A'BECKETT and HODGES, JJ.] This is an appeal from a judgment of His Honor the Chief Justice. This is an action, or rather an information, on behalf of the Crown to recover the sum of 20,000l. alleged to be payable as probate duty under the Administration and Probate Act 1890 in respect of certain lands and estates which it is said were transferred by the testator to certain persons mentioned in the information with the intent to evade the payment of duty.

F.C.

1898

THE QUEEN

V.

AUSTIN.

Williams, J.

This action or information is brought against the executors, who are the only defendants named on the record. When the matter came on for hearing before the Chief Justice the question argued was on paragraph 13 of the defence, which alleged that no claim existed and no remedy was available against the executors of James Austin, and that even if the claim did exist and the remedy were available there was the additional objection taken by the defendants that the various trustees, grantees, or transferrees referred to in the information were necessary parties to the action. The learned Chief Justice, as I understand him, held that the objection was right. He upheld the objection stated first in paragraph 13. He says:-"I think I should hold that there is no remedy against these particular defendants for this specific debt. This is a distinct claim, based upon the provisions of sec. 115, and it appears on the true interpretation of that section that the holders of the properties and not the executors should be sued. I hold therefore that the action is not maintainable as against the executors, but only against the particular individuals alleged to hold the properties." We think that that opinion is erroneous, and that in any aspect of the case the executors should and must be joined as defendants. I need say nothing further on that point.

As to the other point, as to whether it is necessary that the other parties referred to in the information should be joined as defendants, we do not think it necessary to say in this present case that it is necessary for those conducting the case on behalf of the Queen to join those parties. We express no opinion as to whether it is necessary that these persons should be made defendants. But the Court thinks that in a case like this, where there are no complicated or intricate issues or circumstances, the only matter being the transfers to these persons— in such a simple case, I say, the Court is of opinion that it would be more convenient to have these persons before the Court, and then the rights of all parties interested could be adjusted, not only as between the Crown and the executors, but as between the transferrees and the executors. All that we desire to say is, that in this particular case, and in the conditions under which it comes before us, we think it would be

convenient to have these parties-trustees, transferrees, or grantees on the record. We do not say that it is absolutely necessary-there might be circumstances where it would be inconvenient; but the Court is desirous of adjusting the rights of all parties, and therefore we hold, for that reason, that those trustees and others interested in the lands or estates transferred should be added as defendants.

Solicitor for the appellant: Guinness, Crown Solicitor.
Solicitors for the respondents: Taylor, Buckland & Gates.

A. F. M.

IN RE INCOME TAX ACTS.

Income Tax Act 1895 (No. 1374), 8. 27—Jurisdiction of County Court to state case— Income Tax Act 1896 (No. 1467), s. 16-Stock and share broker— Membership of Stock Exchange, fee for-Deduction.

The County Court has jurisdiction under sec. 27 of the Income Tax Act 1895 (No. 1374), to state a case for the opinion of the Supreme Court, notwithstanding the repeal of sec. 26 of Act No. 1374 by sec. 16 of the Income Tax Act 1896 (No. 1467).

A taxpayer being a stock and share broker is entitled to deduct from his gross income the amount paid by him in order that he might become a member of the Stock Exchange, where he carried on his business.

SPECIAL CASE stated for the opinion of the Supreme Court by a Judge of the County Court under sec. 27 of the Income Tax Act 1895.

The facts are fully set out in the judgment.

Cussen for the Commissioner of Taxes in support of the

assessment.

The taxpayer in person to oppose.

Cur, adv. vult.

HOOD, J. This is a special case stated for the opinion of this Court by the County Court under the provisions of the Income Tax Acts. The first question submitted is whether there is now any jurisdiction to state a case under these Acts. It is doubtful V.L.R., Vol. XXIV.

W

1898 September 3, 13.

Hood, J.

Overrules.

28VLR 431

1898

In re INCOME TAX ACTS.

Hood, J.

whether this question ought to be raised in this form, but as it is before the Court I propose to answer it.

The legislation in regard to this matter is in a very confused state. Under the Income Tax Act 1895 (No. 1374), all objections to assessments were heard and determined by a police magistrate, whose decision was final unless appealed against as therein provided. The appeal provided was to the County Court, and upon the hearing of any appeal the County Court might state a case for the opinion of the Supreme Court. Then followed a series of provisions with reference to special cases stated for the opinion of the Supreme Court. So far every

thing was clear. There was first the hearing before the police magistrate, then an appeal to the County Court, and then a case stated for the Supreme Court with directions ast to how that Court could deal with the special case. But, apparently, it was found that this course was cumbersome, and it was decided to do away with the proceedings before police magistrates. This alteration, however, was effected in a very summary fashion. The Income Tax Act 1896 (No. 1467) directs simply that in secs. 23, 24, and 25 of the previous Act for the words "police magistrate” shall be substituted the words “ Judge of the County Court," and the appellate section is repealed. The result is that the objections now go in the first instance to a Judge of the County Court, whose decision is final "unless appealed against as hereinafter provided.". The appeal section, however, being abolished, there is now no "appeal as hereinafter provided," so that it is argued that the decision of the County Court Judge is final. Moreover, the power of the County Court to state a case only arises "upon the hearing of any appeal"-sec. 27 (3)-and as there is no appeal it is said that no case can be stated. But on the other hand the Legislature has retained secs. 27 and 28 of No. 1374. The former treats of appeals and of what is to be done upon the hearing of appeals, while the latter prescribes the procedure on a case stated in this Court, and some meaning must be given to these sections if possible. This can only be done by holding that the appeal referred to in sec. 25 is an appeal by way of case stated, and that the appeal mentioned