FEBRUARY 9, 1917. THE QUEENSLAND LAW REPORTER. section having that effect. I think subsec. v. has no application to a company which has no capital within the meaning of subsec. vii. Even if a life assurance company had capital within the meaning of subsec. vii. (d), the question still remains whether the assessment of the rate of its taxable income would come within the operation of subsec. v. Section 31 (iii.) not only provides for assessing the amount of the taxable income of a life assurance company, but it does so on an artificial basis, which is inconsistent with the basis of profits on capital which is assumed in subsec. v. as applying to all companies. Can subsec. v. apply to any company whose income is not assessed on the basis of profits on capital? Section 31 (iii.) is a special provision applying to one class of company. Section 7 (v.) a general provision purporting to apply to all companies. As the point is not necessary for decision in this case, I express no opinion on it. The rate of assessment will be the rate fixed by s. 7 (1)—viz., 18d. in the £; and the assessment made by the Commissioner is reduced to 18d. in the £. As each party has partially succeeded and partially failed, I make no order as to costs. AUSTRALIAN MUTUAL PROVIDENT SOCIETY. COMMISSIONER OF TAXES, 15th December, 1916. COURT OF REVIEW (O'SULLIVAN D.C.J.). Counsel: Feez K.C. and Real; E. A. Douglas. Solicitors: Foxton, Hobbs & Macnish; The Crown Solicitor. 2. Income Tax-Life Assurance Company-Capital-The Income COURT OF REVIEW. This was an appeal against an assessment of income tax. O'SULLIVAN, D.C.J.: This is an appeal by the taxpayer against the assessment of income tax for the year 1915. The society is a life assurance company, carrying on business in Queensland, and its taxable income for 1915 was assessed in the same manner as in the case of the A.M.P. Society v. The Commissioner of Taxes (1917, Q.W.N. 1). Notice of objection was given on substantially the same grounds by the taxpayer, who raised a further alternative ground as to the rate. Mr Real appeared for the society, and Mr. E. A. Douglas for the Commissioner. The arguments on behalf of the taxpayer and the Commissioner were substantially the same, excepting as to the society having "capital." Mr. Douglas contended that the society had capital within the meaning of subsec. v., and quoted the memorandum of association to show that the society was a company limited by guarantee, and that every member was liable to contribute to the assets of the company in the event of it being wound up. Also Article 3 of the articles of association, providing for foundation policies to subscribers, the capital to be paid up not to exceed £5,000, and Article 54 as to the liability of members, and providing that, under certain conditions, “the remaining assets shall be " property of the then existing members." Assuming the capital to be £5,000, the society had a revenue exceeding 17 per cent on the capital derived from investments in Queensland and other sources than premiums. Mr. Real contended that expenses must be deducted from the revenue, but could not assert that such deduction would reduce revenue below 17 per cent. Subsection v. is not applicable to the society, which has no capital and no profits within the meaning of the subsection. No foundation policies are in existence. All had been paid off before the date of the Colonial Mututal Life Assurance Society Act, 1912 (Victoria). That Act deals with the memorandum and articles of association, and shows that the company is a purely mutual life assurance society. It has no share capital, and no capital except the liability of 1s. per share of its members. That liability is not capital within subsec. 7. The same cases cited by counsel in A.M.P. Society v. Commissioners of Taxes (1917, Q.W.N. 1) were referred to. I think this case is similar to the A.M.P. Society v. The Commissioner, and that the same reasoning applies. 66 I am of opinion that the society has no 'capital within the meaning of s. 7 (vii.d), and therefore that subsec. v. does not apply to the society. If the society had such " capital," a further question would arise as pointed out in the A.M.P. Case just referred to. The rate of assessment, therefore, will be the rate fixed by s. 7 (1)-viz., 18d. in the £. The assessment is reduced to 18d. in the £, and I will make no order as to costs. COLONIAL MUTUAL LIFE ASSURANCE SOCIETY v. COMMISSIONER OF TAXES, December 15th, 1916. COURT OF REVIEW (O'SULLIVAN D.C.J.). Counsel: Real; E. A. Douglas. Solicitors: J. F. FitzGerald & Walsh; The Crown Solicitor. THE QUEENSLAND LAW REPORTER. FEBRUARY, 1917. 3. Income Tax-Agreement to indemnify against Income TaxIllegality-Liability for tax-The Income Tax Acts, 19021912, s. 73. In 1914, on the sale by the plaintiff company to the defendant company of its business, assets, goodwill, and all its property, it was agreed (inter alia) that the defendant company should have the benefit of and undertake the obligation of all contracts; that the defendant company should pay and discharge all liabilities of the plaintiff company existing as at 1st July, 1914, or which may have been subsequently incurred in carrying on the business and shall indemnify the defendant company against all proceedings, claims, and demands in respect thereof to the intent that the purchase shall be completed both as to the assets and liabilities on a walk-in, walk-out basis; " and that the plaintiff company should be indemnified by the defendant company against all land tax, income tax, rates, taxes, assessments, and other outgoings, and all stamp duty upon the sale Assessment was made for the purposes of income tax for the year 1914, and the plaintiff company paid, inter alia, £250 income tax on the goodwill valued at £5000, and £468 on an amount of profits earned in former years, but not distributed until 1914. Income tax was apparently charged on the goodwill, because in balance sheets of former years it appeared as an asset, but was not shown in the balance sheet for 1914. In the agreement for sale was the item of £1000 for goodwill. The plaintiff company claimed that these two amounts were recoverable from the defendant company under the clauses of the agreement of sale. Quare, whether the plaintiff company was liable to pay income tax on the £5000. Held, that the undistributed profits of former years had been distributed as a dividend within the meaning of The Income Tax Acts, 1902-1912, s. 7; that the income tax payable on this dividend was not a "liability" under the above clause of the agreement; that the above clause indemnifying the plaintiff company against all income tax was contrary to s. 73 of the Income Tax Acts, and was void. JOHN HICKS LIMITED v. JOHN HICKS & COMPANY LIMITED, September 20th, October 6th, 1916. LUKIN J. Counsel: Stumm K.C. and Woolcock; Real and McGill (for Henchman, now serving with His Majesty's Forces). Solicitors: Hawthorn & Lightoller; Foxton, Hobbs & Macnish. 4. Central Sugar Cane Prices Board-Jurisdiction-Majority- Prerogative writs will lie to the Central Cane Prices Board. When a Local Cane Prices Board is constituted, it continues in existence, although its personnel may be changed, until the Order-in-Council constituting it is rescinded or amended. The Central Cane Prices Board having refused to hear evidence on the cost of production of cane, on the assumption that it was not a factor which they were bound to take into consideration, mandamus was issued compelling the Board to enter adjournments and to hear according to law. The Central Board, under the Registration of Sugar Cane Prices Act of 1915, in fixing the price of cane, may make an award for the whole of a sugar season, and such an award may be given retrospective effect to the commencement of the season. R. v. THE CENTRAL CANE PRICES BOARD AND OTHERS, Ex parte THE COLONIAL SUGAR REFINING COMPANY LIMITED, October 11th, 12th, 13th, 16th, 27th, 1916. FULL COURT (COOPER C.J., REAL, CHUBB, SHAND AND LUKIN JJ.). Counsel: Stumm K.C. and Walsh (for Henchman, on service with His Majesty's Forces); Ryan A.G. and Real (for Hart, on service with His Majesty's Forces); Wassell and Hobbs. Solicitors: Flower & Hart; The Crown Solicitor; Foxton, Hobbs & Macnish, for Mac Donnell & Hannam, Cairns, and for Havard & Montgomery, Herberton. MARCH 16, 1917. THE QUEENSLAND LAW REPORTER. 5. Maintenance-Desertion of child-Illegitimate child-Corroboration of evidence given by the mother as to paternity-Sufficiency of corroboration-Deserted Wives and Children Act of 1840 (4 Vic., 8. No. 5), ss. 7, ORDER NISI FOR QUashing Order. The appellant was convicted by the Police Magistrate at Gympie on a complaint made against him by the respondent, Eunice Jacobs, that he did unlawfully leave without adequate means of support an illegitimate male child begotten by him upon the body of Eunice Jacobs," and he was ordered to pay a weekly sum for maintenance and to pay costs. The material portions of the evidence given at the hearing are summarised in the judgment of Cooper C.J. The plaintiff stated that she wrote three letters to defendant, but received no reply. She then sent a registered letter, in which she told the defendant she was in trouble, but this was returned. She did not keep copies of the letters. They were posted, addressed to Mr. C. Must, c/o Post Office, Rosewood. The only letter returned was the registered letter. The substance of the letters was that she was in trouble, and asking him what he intended doing. Soon after the child was born, she saw her solicitor, Mr. Sykes. Letters between the plaintiff's solicitor and the defendant and his solicitor were tendered. One of these letters, from defendant's solicitors to complainant's solicitor, was a reply to a letter of demand for the payment of maintenance written by complainant's solicitor to the defendant, and was as follows: To FRED. B. SYKES, Esq., Gympie. Ipswich, 1st December, 1915. Dear Sir,-Your letter to Charles Michael Must of the 25th ultimo has been handed to us with instructions to reply thereto. Our client received a very great shock upon perusing your letter. He absolutely denies the allegations therein and in fact does not even know the girl. He cannot even recall ever having spoken to her, let alone being in any way intimate with her. We feel sure that you have not been given the correct facts of the case otherwise you would have hesitated to write the above referred to. On behalf of our client we now inform you that there is not a particle of truth in the allegation and he is prepared to vindicate his honour in any action that you may wish to take. We are, Dear Sir, Yours Faithfully SUMMERVILLE & DELANEY. An order nisi was granted by Chubb J., returnable before the Full Court, to quash the conviction, on the ground that there was no evidence in support of the evidence of the complainant (the mother of the child) that the appellant was its father. At the hearing before the Full Court, Neal Macrossan moved the order absolute. A. D. Graham, for the respondent, showed cause. There was evidence upon which the Magistrate might reasonably have relied as corroborating the complainant's evidence. The defendant failed to reply to letters; his solicitors wrote denying knowledge on his part of the complainant, which was admittedly false. The defendant denied having been at Rosewood on the night on which intercourse was alleged, and his evidence was contradicted on this point by a witness other than the mother, and was contradicted in other matters by other witnesses. The circumstances of the meeting in Brisbane, the journeying to Rosewood, where he was seen in the complainant's company at night time in a quiet place, his friendly relations with the complainant were all proved by evidence apart from that given by the mother. The difference in social position of the parties may be taken into consideration. He referred to Farr v. Thornton (1903, St. R. Qd. 312), Lihou v. Chalmers (1914, St. R. Qd. 164), Harvey v. Anning (87 L.T. 687), Cole v. Manning (46 L.J. M.C. 175), Grocock v. Stevenson (1905, V.L.R. 536). Macrossan, in reply: There was no corroborative evidence that the parties were ever seen together under compromising circumstances. Phillips v. Tomlinson (2 W.W. and A'B. 92). No inference is to be drawn against the defendant by reason of the denial of facts by him in the course of giving his evidence, and his evidence cannot be used against him, except so far as it contains an admission of THE QUEENSLAND LAW REPORTER. MARCH 16, 1917. guilt. Peacock v. The King (13 C.L.R. 637). The compromising circumstances must be proved by evidence other than that of the complainant. Eather v. The King (19 C.L.R. 409, at p. 415). The fact that the Magistrate may have disbelieved the defendant is immaterial. Scott Fell v. Lloyd (13 C.L.R. 230, at p. 241). Mere physical opportunity is not sufficient. Davies v. D'Ennett (1910, St. R. Qd. 140). Apart from the complainant's evidence, there is no evidence that the complainant and defendant were on any other terms than ordinary acquaintance. He also referred to Matthews v. Colless (1915, St. R. Qd. 159), Ex parte Jackson (22 W.N. (N.S.W.) 30), Gordon v. Brown (12 N.Z.G.L.R. 155), Whittaker v. Johnson (18 N.Z.L.R. 589). C.A.V. COOPER C.J.: In this case the respondent claimed against the appellant, under the Deserted Wives and Children Act, payment for the maintenance of her illegitimate child. By s. 8 of that Act, it is provided (inter alia) that no man shall be taken to be the father of any illegitimate child upon the oath of the mother only. In this case the mother gave evidence that the appellant was the father of her illegitimate child. Other evidence was given by different witnesses, and the appellant was convicted. He now asks that the conviction may be quashed, on the ground that there is no corroboration of the mother's evidence of paternity. The respondent gave evidence that she had met the appellant at Rosewood, where she lived, and had known him for several years, and was on friendly terms with him; that she went to Maryborough in February, 1915, with her sister, for a holiday, and when they returned, the appellant met them at the Central Railway Station. He attended to their luggage at the station, went with them to the People's Palace, and arranged for their accommodation, and took them to tea. The two sisters stayed at the People's Palace for that night, and took the train for their home at Rosewood on the next day. The appellant travelled to Rosewood by the same train; he was seen by both sisters at Ipswich, where the train stopped for a little while. That night the respondent met the complainant at her house, and took her out walking along a lonely country road, where the respondent alleges the misconduct took place. In April, she wrote three letters to the appellant, but received no answer. She then sent him a registered letter, which was returned to her. On 25th November, 1915, her solicitor wrote the appellant a letter [His Honour read the letter of demand]. On the 1st December, the appellant's solicitor wrote the following letter in reply [His Honour read the letter]. In that letter, it is admitted that the letter was written in reply to the letter of 25th November, from the respondent's solicitor to the appellant. The object of the appellant seems to have been to set up an alibi as a defence. He said in the letter that he "did not even know the girl." In evidence, he denied meeting the complainant and her sister at Brisbane or Rosewood in February, 1915. It is perfectly clear that the evidence given on behalf of the respondent proves that she was on friendly terms with the appellant. The incidents occurring in February at the Central Railway Station and at the People's Palace in Brisbane were sworn to by the respondent and her sister. Further, the sister saw the appellant board the train at Ipswich, and saw the respondent walking along the road with the appellant on the night of their arrival home from Brisbane. Evidence was given also by her brother that he had seen the appellant several times at Rosewood talking to his sister, and by a married woman-Mrs. Hertweck-who deposed that the appellant called at her house in March, 1915, and took the respondent away with him in his motor car, and that they appeared to be on very friendly terms. The fact that the appellant denied absolutely any knowledge of the girl, and the fact that he set up the defence of an alibi, which was disproved, seem to me to be important, and they indicate, at least, that he considered the matters about which he told falsehoods to be material enough to drive him into inventing those falsehoods in respect to them. I am of opinion that, taking all the evidence, the Magistrate was right in deciding that there was sufficient evidence to corroborate the mother's evidence as to paternity, and that the order nisi should be discharged, with costs. :: CHUBB J. I have the misfortune to disagree with the judgment of the Court. The fact of the parties being seen together under the ordinary circumstances of the usual course of life and social intercourse is not corroboration, and I see no material evidence corroborating the mother's story. SHAND J. I cannot say the Magistrate was unreasonable in his conclusion on the evidence. MARCH 16, 1917. THE QUEENSLAND LAW REPORTER. LUKIN J. The cumulative effect of all the evidence given at the hearing is, in my opinion, sufficient corroboration, and I think the Magistrate's decision was reasonable and proper. Order nisi discharged, with costs. JACOBS v. MUST, Ex parte MUST, 24th October, 1916, FULL Court (Cooper C.J., CHUBB, SHAND, AND LUKIN JJ.). Counsel: Neal Macrossan; A. D. Graham. Solicitors W. R. Scott, Agent for Summerville & Delaney, Ipswich; Nicol Robinson, Fox & Edwards, Agents for F. B. Sykes, Gympie. : 6. Stamp duty-Conveyance or transfer on sale Agreement under seal-Deed—Voluntary winding up of company and transfer of property to new company formed for the purpose-The Stamp Act, 1894 (58 Vic., No. 8). A. company duly passed resolutions for a voluntary winding up, and for the transfer by the liquidator of its business, freehold and leasehold lands, assets, effects, and goodwill to B. Company, formed for the purpose of acquiring that property under s. 151 of The Companies Act of 1863. By an instrument, purporting to be an agreement under the seals of A. Company and B. Company, and made between A. Company and its liquidator and B. Company, it was agreed that A. Company should transfer to, and B. Company should take over the undertaking and property of the A. Company for the consideration that the B. Company would be liable for all debts and obligations of the A. Company in connection with the undertakings acquired by it, and that the B. Company should allot to the liquidator of A. Company, or his nominees, fully paid-up shares in the capital of B. Company for distribution among the members of A. Company. Transfers and assignments were executed under the agreement in respect of the freehold and leasehold lands and the goodwill, and stamp duty was paid thereon as on conveyances or transfers on sale." The Commissioners of Stamps claimed duty on the instrument as being a conveyance or transfer on sale" of property. 66 Held, that the instrument, so far as it related to property other than freehold or leasehold land or goodwill, was chargeable only as a deed or agreement under seal," and not as a conveyance on sale. THE QUEENSLAND MEAT EXPORT CO. LTD. v. THE COMMISSIONERS OF STAMPS ; THE AUSTRALIAN STOCK BREEDERS' CO. LTD. v. THE COMMISSIONERS OF STAMPS, 5th, 6th, 7th, and 15th December, 1916, FULL COURT (COOPER C.J., SHAND AND LUKIN JJ.). Counsel: Feez K.C. and Real (for Hart, on service with His Majesty's Forces); Stumm K.C. and Gore Jones. Solicitors: Flower & Hart; The Crown Solicitor. 7. Workers' compensation-Recovery of compensation-Action damages not maintainable-The Workers' Compensation Act of 1916 (6 Geo, V., No. 35), Schedule, s. 24, APPEAL FROM SMALL DEBTS COURT. car. The plaintiff brought an action in the Small Debts Court, claiming damages for injuries caused by the negligence of the defendant while driving his motor The defendant pleaded :—A denial of negligence; the defence of contributory negligence; the defence that the plaintiff had already recovered compensation under The Workers' Compensation Act of 1916. A verdict was given for the plaintiff for £25 damages and costs, after allowing credit for £5 5s., being the amount of compensation paid by the Insurance Commissioner from the State Insurance Fund. The defendant appealed to the District Court. Hennessy (solicitor) for the appellant: The respondent has been paid compensation under s. 9 of The Workers' Compensation Act of 1916; s. 24 of the Schedule to the Act. His rights are terminated by recovery of compensation. Tong v. G.N. Railway Company ([1902] 4 W.C.C. 40), Oliver v. Nautilus S.S. Co. Ltd. (1903, 2 K.B. 639). Brennan (solicitor), for the respondent: Section 24 of the Schedule is a reenactment of s. 6 of The Workers' Compensation Act of 1905. This section is different from s. 6 of the English Act of 1897, on which Tong v. Great Northern Railway Company was decided. A worker may recover balance of damage after allowing for compensation, unless he has expressly exercised his option. Halsbury, Laws of England, Vol. XX., p. 196, par. 433. |