Case: Dennis Wilcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267
Outcome: discussed
On the present appeal Senior Counsel for the Secretary relied on a line of authority commencing with Dennis Wilcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267. At the time of that decision s 43(2) was in substantially the same terms as the present subs (2B). Jenkinson J, with whom Woodward and Foster JJ agreed, said at 276-277 "There is also the further possibility that the tribunal's failure to mention either the submission or the questions of fact which it raises was the result of a failure, by inadvertence, to consider the submission when the tribunal was engaged in deciding the reference. Not every failure by the Administrative Appeals Tribunal to mention a contention advanced on behalf of a party will amount to a failure to comply with the requirements of s 43(2) of the Administrative Appeals Tribunal Act 1975 , or demonstrate that the contention was not considered in deciding the matter before the tribunal. But this submission concerning the ascertainment of profit was worthy of serious consideration and was seriously advanced to the tribunal. It ought, therefore, to be inferred that the submission was inadvertently overlooked by the tribunal either when the reference was being decided or when the reasons for the decision were being committed to writing (cf Sullivan v Department of Transport (1978) 20 ALR 323 at 353). In either event there has been, in my opinion, an error of law by the tribunal, so that the power of this court which s 44(1) of the Administrative Appeals Tribunal Act 1975 confers to decide the appeal "on a question of law" is available. The failure of the tribunal to carry out the duty to consider and determine each question of law and fact relevant to the determination of the reference to it of the respondent's decision, or the failure to carry out the duty imposed by s 43(2) of that Act, as the case may be, has brought about a miscarriage of justice by preventing this Court from affording the parties a determination whether the tribunal's decision was vitiated by error of law: see Pettit v Dunkley [1971] 1 NSWLR 376. 33 However, on the assumption that Dennis Wilcox is still good law, the principle for which that case stands is not applicable here. Mr Barrington's being aware of the preclusion period before he purchased the Burnie house was not in dispute. It was not a discrete legal or factual issue standing apart from the rest of the case as discussed in the Tribunal's reasons. It was a part of the larger narrative which also included Mr Barrington's plans and expectations when he bought the house, and how illness and lack of employment opportunities thwarted them. The omission by the Tribunal of any reference to a particular element of that narrative does not of itself lead to the conclusion that such element was ignored or overlooked: cf Kentucky Fried Chicken Pty Ltd v Gantidis [1979] HCA 20 ; (1979) 140 CLR 675 at 680, 684. If a fact is not in itself disputed, that may be a reason why it is not mentioned. The bare fact of spending compensation money on an asset after becoming aware of a preclusion period would often tell against a finding of special circumstances, as the Guide points out. But in the present case what really opened up the possibility of a special circumstances finding is what happened after the purchase, including Mr Barrington's health and employment problems.