Ambrose J:

The question for decision is whether this Court has jurisdiction to hear an appeal from the opinion of the High Court delivered under s. 82 of the Income Tax Ordinance (Cap. 166). The question arises in this way. The Board of Review stated a case on certain questions of law for the opinion of the High Court under s. 82 of the Income Tax Ordinance. The High Court remitted the case to the board with its opinion. The appellants being dissatisfied with the opinion appealed to this Court against the opinion. The respondent to both the appeals is the Comptroller of Income Tax. He applies to this Court to set aside the notices of appeal filed by the appellants and to stay all further proceedings. The ground of the application is that this Court has no jurisdiction to hear an appeal from the opinion of the High Court.

It is to be noted that the Income Tax Ordinance does not provide for a right of appeal against an opinion of the High Court delivered under s. 82 of the Ordinance. If it were intended by the legislature that such an opinion should be the subject-matter of an appeal, one would expect such an intention to be explicitly stated in the ordinance.

The appellants rely on s. 67 of the Courts of Judicature Act 1964. This section provides that the Federal Court shall have jurisdiction to hear and determine appeals from any judgment or order of any High Court in any civil matter, whether made in the exercise of its original or its appellate jurisdiction.

The first argument submitted on behalf of the appellants is this. s. 82(6) of the Income Tax Ordinance provides that the High Court shall hear and determine any question of law arising on a stated case and may in accordance with its decision thereon confirm, reduce, increase or annul any assessment determined by the board in the appeal, or may remit the case to the board with the opinion of such Court thereon. It is said that it is clear from this subsection that the determination of a question of law arising on a stated case is a decision by the High Court. I think this must be conceded. Counsel goes on to say that the determination by the High Court is an order of the High Court. Counsel relies on Ex parte Dawes, Re Moon (1886) 17 QBD 275 at p. 284. There a special case was stated for the opinion of the High Court under s. 97(3) of the Bankruptcy Act 1883. That subsection provided:

If any question of law arises in any bankruptcy proceeding in a county Court which all the parties to the proceeding desire, or which one of them and the Judge of the county Court may desire, to have determined in the first instance in the High Court, the Judge shall state the facts, in the form of a special case, for the opinion of the High Court

The High Court gave its opinion. An appeal was brought against the opinion under s. 104 (2) (b) of the Bankruptcy Act 1883, which provided for an appeal from an order of the High Court to the Court of Appeal. Lord Esher MR said that the first effective order was made by the High Court sitting in bankruptcy and that from that order an appeal lay to the Court of Appeal. As regards Ex parte Dawes, Re Moon, Lord Esher MR had this to say subsequently in Re Knight and Tabernacle Permanent Building Society [1892] 2 QB 613, at p. 617:

In the bankruptcy case to which our attention was directed, the statute spoke of a question of law to be determined by the Court. It was held that, although the Act did not in terms provide for any judgment or order of the Court, inasmuch as the Court was to determine the matter, there was what was equivalent to a judgment or order of the High Court.

In Ex parte Dawes, Re Moon, the Court of Appeal considered the language of s. 97(3) of the Bankruptcy Act 1883, looked at its context, and took the view that the determination by the High Court was equivalent to an order of the High Court under s. 104(2)(b), because the jurisdiction of the High Court was not merely consultative. It seems to me that not every deter