Case: BHP Petroleum (Timor Sea) Pty Ltd v Minister for Resources (1994) 49 FCR 155
Outcome: followed
The contrast between the scope of the two expressions was said to be illustrated by BHP Petroleum (Timor Sea) Pty Ltd v Minister for Resources (1994) 49 FCR 155 ( BHP Petroleum ) and Watson v Secretary, Department of Family and Community Services [2003] FCA 415 ; (2003) 128 FCR 564 ( Watson ) on the one hand, and cases such as Murry ; Hope v Bathurst City Council [1980] HCA 16 ; (1980) 144 CLR 1 ( Hope ), and Ferguson v Federal Commissioner of Taxation [1979] FCA 29 ; (1979) 26 ALR 307 ( Ferguson ) on the other. 32 The decisions of BHP Petroleum and Watson also, in my view, do not support the contrast between the two expressions in s 35. 33 BHP Petroleum concerned the eligibility of certain taxpayers under the Petroleum Resource Rent Tax Assessment Act 1987 (Cth) to have their projects combined so that expenditure on one of the combined projects could be set off against revenue from another. Section 20 empowered the Minister to "... issue a combination certificate" if satisfied, having regard to specified factors, that the projects "are sufficiently related to be treated for the purposes of this Act as a single petroleum project". The application for the "combination certificate" had to be made "from" a person or persons who were together entitled to at least half of the receipts from the sale of marketable petroleum commodities produced in relation to each of the projects. The formal application, by oversight, omitted the name of one intended applicant whose entitlement was necessary to meet the one half eligibility criterion. In the circumstances, the Court (Beaumont, Jenkinson and Heerey JJ) found that the application had in fact been made by all the intended applicants, so that criterion was satisfied. Beaumont J at 170-171 explained that the word "from" had its ordinary meaning as indicating "the starting point, source or origin" of the application. That source had been clearly exposed by other communications. I do not, however, see any observations in the reasons which support the claimed contrast between "business activity" and "business". However, I think the meaning of the word "from" as discussed is equally applicable to that word in the phrase "from the business activity". 49 The relevant distinction which is drawn by s 35 is between assessable income from the business activity in a particular year and assessable income which is not from the business activity in a particular year. Income from a business activity must clearly have a connection with it. Beaumont J (with whom Jenkinson and Heerey JHJ agreed) in BHP Petroleum at 170-171 applied the normal sense of a starting point, source or origin. Finn J in Watson at 569 contrasted income from the business of Mr Watson and income that was a surrogate or replacement for income which might otherwise have been received. As noted above, such income may include income from incidental activities even though they are not, or not likely to be, recurrent (eg the interest on a temporary cash surplus, as in Kidston ; or the proceeds of a life insurance policy, as in Carapark ; or the cash incentive paid to take a long term lease, as in Lees and Leech . In certain circumstances, and in relation to a particular period, the assessable income of a business activity might also include for a time disability payments under a personal income protection policy. I do not need to decide that question.