Wiseman v Borneman, 1971, Ac 297
Citation:Wiseman v Borneman, 1971, Ac 297
Rule of thumb:What happens if there is a legal dispute and no in-point Regulation or Statute can be found which applies to it? Does this mean it cannot be litigated and is not a claim? If there is no statute in a matter, then the correct source to look towards is the common law (principles and case-law derived therefrom, as supplemented by secondary sources).
Background facts:
The facts of this case were that there was a tax dispute. No legislation or regulations could be found.
Arguments
The taxpayer argued this meant they did not have to pay, the case was irrelevant and should be dismissed. The tax authority argued that the common law should be applied.
Judgment:
The Court upheld the arguments of the tax authority. If there is no legislation, Regulations or case-law affirming something is not a breach of the law, and the common law applies – if there are no in-point parts of the common law breached the Court has to consider whether the common law should be extended to make it a breach of common law.
Ratio-decidendi:
’ ... Nor do we wait for directions from Parliament. The common law has abundant riches: there we may find what Byles J called “the justice of the common law”’, at 309 Lord Morris
Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.