mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Mutual Pools and Staff Pty Ltd v The Commonwealth (1994) 179 CLR 155
Outcome: distinguished
The appellant claims that the making of clause 880.230(2) and the 2006 transitional provision changed the character of the fee. It took away any chance of the appellant obtaining the visa, and the value of her access to the visa determination process, for which she had paid the fee, was entirely removed. The amendment, combined with the transitional provision and s 46(1)(ba), turned the payment of the fee into an ex post facto expropriation. Those provisions became laws "with respect to" the acquisition of property. Section 46(1) prescribes the requirements for a "valid visa" for the purposes of other provisions such as s 65. See [27]. One such requirement (par (ba)) is that any visa application charge required by the regulations to be paid at the time of application has been paid. The appellant relied on Mutual Pools and Staff Pty Ltd v The Commonwealth (1994) 179 CLR 155 (Mutual Pools ) at 188 as authority that a law can have more than one character. She claimed that there was no reason why a law cannot have different characters in different circumstances. It was said that when the Commonwealth obtains a fee for the provision of a benefit, and later legislation takes away the value of that benefit (in the sense of any prospect of obtaining it), the amount paid is acquired by the Commonwealth other than on just terms. 34 The central question is whether there has been an acquisition of property belonging to the appellant. That arises for decision before one gets to the question canvassed in cases such as Mutual Pools 179 CLR 155 , which is whether the law has the constitutional character of a law with respect to the acquisition of property.
Case: New York Central RR Co v White (1917) 243 US 188
Outcome: cited
In order for the voluntarily paid fee to become an expropriated asset, the challenged provisions must have defeated some right that was acquired by the appellant when she entered into the transaction constituted by the visa application accompanied by the fee. What she thereby obtained was the right to have her application considered and determined according to law. That right is enforceable by public law remedies such as mandamus. It is not a right to a particular outcome. The right to have an application determined according to law is always subject to the power of Parliament and its delegates to change the law. Accordingly there is no right to have an application considered against criteria that exist at the time the application is made. In Peverill 179 CLR at 261, McHugh J quoted with approval the observation of Pitney J in New York Central RR Co v White (1917) 243 US 188 at 198 that "No person has a vested interest in any rule of law entitling him to insist that it shall remain unchanged for his benefit".
Case: Ainsworth v CJC [1992] HCA 10 ; (1992) 175 CLR 564
Outcome: cited
respondent further submits that s 255-5, which provides for an express regime of civil recovery but does not extend to amounts arising under s 260-5, is also "a provision to the contrary". This seeks, in effect, to apply the maxim expressio unius est exclusio alterius as an aid to construction. It is an aid which must be used with caution: Houssein v Under Secretary of Industrial Relations and Technology [1982] HCA 2 ; (1982) 148 CLR 88 at 94; Barratt v Howard [1999] FCA 1132 ; (1999) 165 ALR 605 at 615 per Hely J. If applied in this case it would bring about a result which I doubt the Parliament intended: Ainsworth v CJC [1992] HCA 10 ; (1992) 175 CLR 564 at 575. The existence of affirmative provisions elsewhere in the Act does not, in my opinion, override the principle articulated in Mallinson .
Case: Barratt v Howard [1999] FCA 1132 ; (1999) 165 ALR 605
Outcome: cited
respondent further submits that s 255-5, which provides for an express regime of civil recovery but does not extend to amounts arising under s 260-5, is also "a provision to the contrary". This seeks, in effect, to apply the maxim expressio unius est exclusio alterius as an aid to construction. It is an aid which must be used with caution: Houssein v Under Secretary of Industrial Relations and Technology [1982] HCA 2 ; (1982) 148 CLR 88 at 94; Barratt v Howard [1999] FCA 1132 ; (1999) 165 ALR 605 at 615 per Hely J. If applied in this case it would bring about a result which I doubt the Parliament intended: Ainsworth v CJC [1992] HCA 10 ; (1992) 175 CLR 564 at 575. The existence of affirmative provisions elsewhere in the Act does not, in my opinion, override the principle articulated in Mallinson .
Case: Clyne v Deputy Commissioner of Taxation [1981] HCA 40 ; (1981) 150 CLR 1 
Outcome: discussed
Clyne v Deputy Commissioner of Taxation [1981] HCA 40 ; (1981) 150 CLR 1 , Mason J (Aickin and Wilson JJ agreeing) described s 218 as imposing an obligation on the recipient of a notice to pay money which falls within the statutory description. Brennan J observed that the Commissioner was entitled to insist on compliance and that there was no reason why the Commissioner's right should not be enforced by proceedings other than prosecution under subs (2). No other member of the Court considered this point. When Clyne was decided s 218 did not confer any power on the Court convicting an entity for non-compliance with the notice to pay some or all of the amount in the notice. I do not consider that this affects the proper construction of s 260-5. Brennan J further observed that the statute worked an assignment of the moneys to be paid to the Commissioner as though the taxpayer had charged the moneys otherwise payable to him with payment of his tax liability. The references to "tax payable" and "tax due" are significant. I apprehend the Court here was saying no more than that under s 218 the third party was, unlike s 255, not liable to pay the "tax payable". Section 255(1)(c) rendered the "controller" of monies of a non-resident personally liable for the tax payable on behalf of the non-resident. Section 218, by contrast, created a new obligation for payment to the Commissioner of "money due, accruing or (which) may become due" by a person to a taxpayer, albeit the payment of that money by the person to the Commissioner was to be credited against the taxpayer's liability to tax. However, it did not in terms enable the Commissioner to recover from the other person the tax due by the taxpayer. The provisions to which I have referred in the ITAA36 concerning assessments of tax have no immediate application in respect of s 218. This, in my view, is how the distinction between ss 218 and 255 referred to in Bluebottle should be understood. I would expect that had the Court meant that s 218 provided no capacity for the Commissioner to sue for recovery of amounts the subject of a notice other than through criminal proceedings, it would have referred to earlier High Court authority on the subject such as Clyne and particularly the principle explained in Mallinson . Indeed Clyne was applied in Bluebottle in dealing with another issue and Mallinson was also referred to but not on this point. I do not regard Bluebottle as overruling the principle articulated in Mallinson.
Case: Deputy Commissioner of Taxation v Broadbeach Properties Pty Ltd [2008] HCA 41 ; (2008) 248 ALR 693
Outcome: referred to
general principle was re-affirmed recently by the High Court in Deputy Commissioner of Taxation v Broadbeach Properties Pty Ltd [2008] HCA 41 ; (2008) 248 ALR 693 at [51] where it was explained that where legislation creates a duty to pay money, an action in debt is "the appropriate remedy for which the general law provides".
Case: Deputy Commissioner of Taxation v Lanstel Pty Ltd (1996) 22 ACSR 314
Outcome: referred to
J of the Supreme Court of New South Wales, referring to that observation, held in Deputy Commissioner of Taxation v Lanstel Pty Ltd (1996) 22 ACSR 314 that the s 218 worked an assignment of the debt so that it became payable to the Commissioner. In doing so his Honour observed: A conclusion that, quite apart from prosecuting a recipient of a notice for an offence, the Commissioner has a legal right to compel the payments to be made to the Commissioner, and to sue for the amount if it is not paid, is left to implication, but the implication is clear. This conclusion was reached despite the then inclusion by s 218(3) of the discretionary power to order payment.
Case: Houssein v Under Secretary of Industrial Relations and Technology [1982] HCA 2 ; (1982) 148 CLR 88 
Outcome: cited
respondent further submits that s 255-5, which provides for an express regime of civil recovery but does not extend to amounts arising under s 260-5, is also "a provision to the contrary". This seeks, in effect, to apply the maxim expressio unius est exclusio alterius as an aid to construction. It is an aid which must be used with caution: Houssein v Under Secretary of Industrial Relations and Technology [1982] HCA 2 ; (1982) 148 CLR 88 at 94; Barratt v Howard [1999] FCA 1132 ; (1999) 165 ALR 605 at 615 per Hely J. If applied in this case it would bring about a result which I doubt the Parliament intended: Ainsworth v CJC [1992] HCA 10 ; (1992) 175 CLR 564 at 575. The existence of affirmative provisions elsewhere in the Act does not, in my opinion, override the principle articulated in Mallinson .
Case: Hawkins v Bank of China (1992) 26 NSWLR 562
Outcome: cited
administrators contend that the obligations under the Supply Agreements fall within s 443A and seek a direction to that effect. There is an initial question as to whether any liability which ensues would properly be described as a 'debt'. Counsel has properly referred me to the decision of Branson J in Molit (No55) Pty Ltd v Lam Soon Australia Pty Ltd (Administrator Appointed) &amp; Macks (1996) 68 FCR 319 in which a strict instruction of the term 'debt' is adopted, drawing a distinction between a debt and a liability for unliquidated damages in this section. Counsel has pointed out that, in other sections, the words such as 'debt' and 'creditor' have been given a wider construction. The provision for insolvent trading is one example. Another is the construction of s 563A in Sons of Gwalia Ltd v Margaretic [2006] FCAFC 17 ; (2005) 149 FCR 227. There is also a question as to whether the liabilities are 'incurred' by reason of cl 6, at least unless and until there is a surplus to be distributed. Counsel has referred to the decision of the New South Wales Court of Appeal in Hawkins v Bank of China (1992) 26 NSWLR 562 which dealt with whether a relevant debt was incurred when a company entered into a guarantee under which it was obliged to pay a liquidator an amount contingent upon demand following default.
Case: Molit (No55) Pty Ltd v Lam Soon Australia Pty Ltd (Administrator Appointed) &amp; Macks (1996) 68 FCR 319
Outcome: cited
administrators contend that the obligations under the Supply Agreements fall within s 443A and seek a direction to that effect. There is an initial question as to whether any liability which ensues would properly be described as a 'debt'. Counsel has properly referred me to the decision of Branson J in Molit (No55) Pty Ltd v Lam Soon Australia Pty Ltd (Administrator Appointed) &amp; Macks (1996) 68 FCR 319 in which a strict instruction of the term 'debt' is adopted, drawing a distinction between a debt and a liability for unliquidated damages in this section. Counsel has pointed out that, in other sections, the words such as 'debt' and 'creditor' have been given a wider construction. The provision for insolvent trading is one example. Another is the construction of s 563A in Sons of Gwalia Ltd v Margaretic [2006] FCAFC 17 ; (2005) 149 FCR 227. There is also a question as to whether the liabilities are 'incurred' by reason of cl 6, at least unless and until there is a surplus to be distributed. Counsel has referred to the decision of the New South Wales Court of Appeal in Hawkins v Bank of China (1992) 26 NSWLR 562 which dealt with whether a relevant debt was incurred when a company entered into a guarantee under which it was obliged to pay a liquidator an amount contingent upon demand following default.
Case: Re Ansett Australia Ltd and Mentha [2001] FCA 1806 ; (2001) 115 FCR 376
Outcome: followed
is not necessary for me to decide those interesting questions because, in my opinion, it is clear that any liability which ensues would not be for any of the topics enumerated in s 443A(1). The only possible argument is that the liability would be for services rendered. I cannot view what is involved in cl 6 of the Supply Agreements as incurring a liability for services rendered. In that respect, I would adopt the reasoning of Goldberg J in Re Ansett Australia Ltd and Mentha [2001] FCA 1806 ; (2001) 115 FCR 376 at [45] [46]. (See also Re Spyglass Management Group Pty Ltd (Administrator Appointed) (2004) 51 ACSR 432; (2004) 23 ACLC 28 at [4].) I decline to give the direction sought. The decisions of Goldberg J in Re Ansett Australia Ltd and Mentha [2001] FCA 1806 ; (2001) 115 FCR 376 and of Finkelstein J in Re Spyglass Management Group Pty Ltd (Administrator Appointed) (above) and the orders made by Hely J in Re Henry Walker Eltin Group Ltd (Administrators Appointed) (No 4) [2005] FCA 745 provide support for making the order. Order 2 as sought will be made. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 1 September 2006 Counsel for the Plaintiffs Mr P M Wood Solicitor for the Plaintiffs: Blake Dawson Waldron Date of Hearing: 18 August 2006 Date of Judgment: 1 September 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1201.html
Case: Re Henry Walker Eltin Group Ltd (Administrators Appointed) (No 4) [2005] FCA 745
Outcome: applied
decisions of Goldberg J in Re Ansett Australia Ltd and Mentha [2001] FCA 1806 ; (2001) 115 FCR 376 and of Finkelstein J in Re Spyglass Management Group Pty Ltd (Administrator Appointed) (above) and the orders made by Hely J in Re Henry Walker Eltin Group Ltd (Administrators Appointed) (No 4) [2005] FCA 745 provide support for making the order. Order 2 as sought will be made. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 1 September 2006 Counsel for the Plaintiffs Mr P M Wood Solicitor for the Plaintiffs: Blake Dawson Waldron Date of Hearing: 18 August 2006 Date of Judgment: 1 September 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1201.html
Case: Re Spyglass Management Group Pty Ltd (Administrator Appointed) (2004) 51 ACSR 432; (2004) 23 ACLC 28
Outcome: followed
is not necessary for me to decide those interesting questions because, in my opinion, it is clear that any liability which ensues would not be for any of the topics enumerated in s 443A(1). The only possible argument is that the liability would be for services rendered. I cannot view what is involved in cl 6 of the Supply Agreements as incurring a liability for services rendered. In that respect, I would adopt the reasoning of Goldberg J in Re Ansett Australia Ltd and Mentha [2001] FCA 1806 ; (2001) 115 FCR 376 at [45] [46]. (See also Re Spyglass Management Group Pty Ltd (Administrator Appointed) (2004) 51 ACSR 432; (2004) 23 ACLC 28 at [4].) I decline to give the direction sought. The decisions of Goldberg J in Re Ansett Australia Ltd and Mentha [2001] FCA 1806 ; (2001) 115 FCR 376 and of Finkelstein J in Re Spyglass Management Group Pty Ltd (Administrator Appointed) (above) and the orders made by Hely J in Re Henry Walker Eltin Group Ltd (Administrators Appointed) (No 4) [2005] FCA 745 provide support for making the order. Order 2 as sought will be made. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 1 September 2006 Counsel for the Plaintiffs Mr P M Wood Solicitor for the Plaintiffs: Blake Dawson Waldron Date of Hearing: 18 August 2006 Date of Judgment: 1 September 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1201.html
Case: Sons of Gwalia Ltd v Margaretic [2006] FCAFC 17 ; (2005) 149 FCR 227 
Outcome: cited
administrators contend that the obligations under the Supply Agreements fall within s 443A and seek a direction to that effect. There is an initial question as to whether any liability which ensues would properly be described as a 'debt'. Counsel has properly referred me to the decision of Branson J in Molit (No55) Pty Ltd v Lam Soon Australia Pty Ltd (Administrator Appointed) &amp; Macks (1996) 68 FCR 319 in which a strict instruction of the term 'debt' is adopted, drawing a distinction between a debt and a liability for unliquidated damages in this section. Counsel has pointed out that, in other sections, the words such as 'debt' and 'creditor' have been given a wider construction. The provision for insolvent trading is one example. Another is the construction of s 563A in Sons of Gwalia Ltd v Margaretic [2006] FCAFC 17 ; (2005) 149 FCR 227. There is also a question as to whether the liabilities are 'incurred' by reason of cl 6, at least unless and until there is a surplus to be distributed. Counsel has referred to the decision of the New South Wales Court of Appeal in Hawkins v Bank of China (1992) 26 NSWLR 562 which dealt with whether a relevant debt was incurred when a company entered into a guarantee under which it was obliged to pay a liquidator an amount contingent upon demand following default.
Case: Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc (1999) 161 ALR 79
Outcome: referred to
in the same way as an injunction must be couched in clear and unambiguous language, so must an undertaking. As the learned authors of Meagher, Gummow and Lehane's Equity: Doctrines and Remedies (4 th ed, 2002) at [21-505] say, 'the recipient of it must be placed in a position where he knows exactly what he is obliged to do'. (See also Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc (1999) 161 ALR 79 per French J at 88-89 [26] (' REIWA ')). An undertaking should not be accepted if it is vague and uncertain or if enforcement is likely to prove impossible. This proposition is subject to a narrow qualification. I agree with the point made by French J, albeit in the context of s 86C, that in the context of compliance programmes it is neither practicable nor useful to prescribe with minute particularity the content of such programmes: Australian Competition and Consumer Commission v Virgin Mobile Australia Pty Ltd (No 2) [2002] FCA 1548 at [24] . An order or undertaking which contains objectives to be fulfilled, or aims to be achieved, might be too uncertain to be enforceable, although the problem might be overcome by making the obligation a best or reasonable endeavours obligation: REIWA per French J at 90 [35].
Case: Australian Competition and Consumer Commission v Virgin Mobile Australia Pty Ltd (No 2) [2002] FCA 1548
Outcome: referred to
in the same way as an injunction must be couched in clear and unambiguous language, so must an undertaking. As the learned authors of Meagher, Gummow and Lehane's Equity: Doctrines and Remedies (4 th ed, 2002) at [21-505] say, 'the recipient of it must be placed in a position where he knows exactly what he is obliged to do'. (See also Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc (1999) 161 ALR 79 per French J at 88-89 [26] (' REIWA ')). An undertaking should not be accepted if it is vague and uncertain or if enforcement is likely to prove impossible. This proposition is subject to a narrow qualification. I agree with the point made by French J, albeit in the context of s 86C, that in the context of compliance programmes it is neither practicable nor useful to prescribe with minute particularity the content of such programmes: Australian Competition and Consumer Commission v Virgin Mobile Australia Pty Ltd (No 2) [2002] FCA 1548 at [24] . An order or undertaking which contains objectives to be fulfilled, or aims to be achieved, might be too uncertain to be enforceable, although the problem might be overcome by making the obligation a best or reasonable endeavours obligation: REIWA per French J at 90 [35].
Case: N W Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285
Outcome: referred to
is an undertaking which restrains conduct which would be a contravention of the Act and, as it is within the power of the Court to grant an injunction in similar terms, it is within the power of the Court to accept the undertaking. I have the power to accept the first undertaking and I think that it would be appropriate to do so. The undertaking has been proffered as part of a negotiated settlement of what is a complex dispute. Unless there was good reason not to do so, and there is no such reason here, then, providing the adoption of the settlement is within power, I should give effect to the settlement reached between the parties. All the corporate respondents were legally represented as was the Commission and I see no reason why it would not be appropriate to accept the first undertaking: N W Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 per Burchett and Kiefel JJ at 291; REIWA per French J at 87 [20]-[21]. The second undertaking is proffered by the three individual respondents and is in the following terms: of Mr Frank McDonald, Mr Andrew Bone and Mr Gary Daniel, for a period of 5 years, undertakes to the Court to refrain from inducing or attempting to induce or being directly or indirectly, knowingly concerned in, or party to the making of, or the arriving at, or the giving effect to, any such contract, arrangement or understanding between a corporation and one or more of its competitors which contains a provision or provisions that: any or all of them would no longer provide estimating services without charge but would pass on to the customer any charges incurred at cost; any or all of them would procure or attempt to procure or induce other competitors to make arrangement or arrangements, alternatively to arrive at an understanding or understandings, containing a provision to the same effect, but including such other competitors or some of them, as the provision set out in sub-paragraph (i) above; or any or all of them would charge customers for estimating services at a particular price or particular prices or in accordance with or by reference to a particular mechanism, process or procedure by which the price or prices of estimating services to be charged by all or any of them would be fixed or controlled.' As with the first undertaking, I have the power to accept the undertaking and I think it would be appropriate to do so. The individual respondents, other than Mr McDonald, had legal representation, and Mr McDonald told me that he had received legal advice.