The King (Harris Stein) v The Special Commissioners

• Judge: Kennedy C J,O’Connor J and Fitzgibbon J.
• Judgment Date: 20 January 1925
• Court: High Court

In the Supreme Court, on 6 March 1925, the Prosecutor’s application by way of appeal, was refused, with costs.

High Court - 20 January 1925

Kennedy, C J. As we were ourselves unable to see that any questions of law are involved in this case we asked Mr Jellett to formulate the questions which he desires to argue on a case stated, but I am afraid that although his argument has been ingenious, he has not shown us that any question of law can be raised.

Having been dissatisfied with the decision of the Commissioners Mr Stein instructed his solicitor to put before the Commissioners the objections he had to make and these objections are repeated in the notice of motion setting out the grounds upon which the case stated is asked. A case stated can only be granted on questions of law arising out of the determination by the Commissioners, and three such questions have been suggested by Mr Jellett. The first question which he suggests is:

Whether the Commissioners in arriving at their determination in respect of 1923-24 were justified in law in following and adopting the figures assessed by the Recorder in the previous two years?

In their affidavit the Commissioners state that the assessment was based upon the estimate of the profits and gains on a fair and just average of the three preceding years and that this estimate was ascertained and settled to the best of their judgment. Assuming that to be so, as on the evidence we must assume, then, if the Commissioners were ordered to state a case, it would contain an averment by the Commissioners: “we have estimated profits and gains to the best of our judgment”. Their statement of fact could not be challenged, and there would be no question of law for they would have stated that they had in fact done the very thing which the prosecutor says they are required by law to do.

The second question suggested by Mr Jellett is:

Whether in arriving at their figure of £1,200 the Commissioners were bound in law to give the prosecutor credit for bad debts?

The Commissioners say that they did, in fact, take bad debts into consideration. if they were ordered to state a case they would simply state that they had made an allowance for bad debts and the position would then be exactly the same as at present. It would, therefore, be futile to order the Commissioners to state a case on this question.

Mr Jellett’s third question is:

Whether in arriving at the figure appearing in the assessment the Commissioners were bound to compute...