Case: Ergon Energy Incorporation Limited v The Commissioner of Taxation [2006] FCAFC 125
Outcome: cited
Commissioner also relies on comments of Sundberg and Kenny JJ in Ergon Energy Incorporation Limited v The Commissioner of Taxation [2006] FCAFC 125 at [51] where their Honours said: 'The drafting of the first question in the Commissioner's notice of appeal was inelegant. It did not expressly state any question at all. Its purport was, however, tolerably clear, having regard to the rebate provisions themselves, the relevant authorities...the language of the AAT's reasons, as well as the grounds as stated in the notice of appeal. The Commissioner plainly intended to raise the question of whether, on the facts as found by the AAT, the... criteria fixed by the relevant rebate provisions were satisfied.' In essence, the respondent submits as follows: &#8226; par 2(g) is in the nature of a submission rather than a question of law &#8226; par 2(g) cannot stand alone but refers back to pars (a), (b), (c), (d), (e), (f) and adds nothing to them &#8226; in any event it is stretching the meaning of 'a wrong principle' in par 2(g) to include reference to the questions of law raised in par (c) and par (e), and to that extent par (g) does not relate to those paragraphs &#8226; the applicant in par 2(g) is asking the Court to confirm a principle, which in itself is not a question of law within the meaning of s 44 because a question of law requires the Court to be able to answer a question posed with sufficient particularity to the facts. A number of principles have emerged from decisions of the Federal Court where this issue has been considered. Those principles include the following: 1. It simply begs the question of law to commence an appeal point with words such as 'whether the Tribunal erred in law'. If the question properly analysed is not a question of law, no amount of the formulary like 'erred in law' or 'was open as a matter of law' can make it into a question of law (Ryan J in Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524). 2. Appeals to this Court under s 44 AAT Act are only on questions of law. Accordingly the relevant question of law is the subject matter of the appeal itself. The whole of the decision of the Tribunal is not open to review except to the extent that it relevant to the questions of law raised (Gummow J in TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178, Saxby Bridge at [46]). 3. Order 53 r 3(2) discloses an intention that a question of law raised on an appeal from the Tribunal should be stated with precision as a pure question of law (Branson and Stone JJ in Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 at [18] ). 4. A question which is inelegantly drafted may nonetheless be a question of law if its purport is tolerably clear, having regard for example to relevant legislation, relevant authorities, the language of the Tribunal's reasons and the grounds stated in the notice of appeal ( Ergon at [51]). I note the comments of the Full Court in Ergon where their Honours accepted that a question which is inelegantly drafted may nonetheless be a question of law if its purport is tolerably clear. However in the case before me, while I understand what the Commissioner is seeking to achieve by par 2(g), in my view it does not raise a particular, pure question of law as is explained by the Full Court in Birdseye . In Ergon , while the question was not framed as such as a 'question', nevertheless a particular issue of law specific to that case was clearly posed.