mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Federal Commissioner of Taxation v Hamersley Iron Pty Ltd (Full Court) (1981) 37 ALR 595
Outcome: considered
Lindsay drew attention furthermore to what was described as the leading authority on the meaning of the combined expression process or treatment, as appears in the context of sub-paragraph (a)(iii) of the definition of 'aids to manufacture' contained in the legislative precursor to the STEC Act, being the Sales Tax (Exemptions and Classifications) Act 1935 (Cth), the words process or treatment appearing of course in each of pars (a), (b) and (c) of the Item 18(5) definition of manufacture-related activity. That authority is Federal Commissioner of Taxation v Hamersley Iron Pty Ltd (1981) 33 ALR 251, which was decided by the Supreme Court of Victoria (Gobbo J) at first instance, and which decision was upheld on appeal to a Full Court (Lush, Kaye and Brooking JJ) (1981) 37 ALR 595. At first instance, Gobbo J reviewed (at 268) dictionary meanings of processing and treatment , as follows: 'Turning first to the meaning of "processing or treatment", there is nothing in the context of Item 113C to suggest that the ordinary meaning of treatment found for Item 14 should not be adopted. Treatment was there taken to mean the act of subjecting to chemical or physical action so as to bring about a change in form nature or condition. I further found that in its context such treatment had to be directed to a relevant result, namely to use or marketability. As to processing this in my view should in its context in Item 113C and Reg 4 be taken to have a different and probably wider meaning than treatment.... These meanings all suggest that a change in nature form or condition is effected. I am disposed to the view that even in processing some change must result if this procedure is to be regarded as a process.' Lindsay drew attention in particular to 'subjecting to... physical action... [and] condition' , and also to 'use or marketability', appearing above, being expressions reflected explicitly or implicitly in Item 18(5)(a) to (c) within the definition of manufacture-related activity . After referring to Davies Coop and Company Limited v Federal Commissioner of Taxation [1947] HCA 64 ; (1948) 77 CLR 299, Gobbo J observed at 269 in Hamersley Iron that authority 'supports a meaning of processing that does not require that there be a change producing a commercially distinct article...', and his Honour referred to recent English authority which had 'adopted the view... that alteration of the material was not necessary to involve subjecting it to a process'. That submission was soundly conceived.
Case: ICI Chemicals &amp; Polymers Ltd v The Lubrizol Corporation Inc [2000] FCA 1349 ; (2000) 106 FCR 214
Outcome: cited
Lindsay further drew attention to the notion of process appearing in subItem 18(5)(c) as an aspect of the definition of manufacture-related activity, being a notion addressed in the patent case of ICI Chemicals &amp; Polymers Ltd v Lubrizol Corporation Inc [2000] FCA 1349 ; (2000) 106 FCR 214. The relevant subItem 18(5) expression is of course that of process or treatment to goods , being words of wide import and operation. In the reasons for joint judgment of the Full Court (Lee, Heerey and Lehane JJ) at [7], the following appears, upon which Lindsay placed reliance by way of illustration and analogy: 'Refrigeration involves a transfer of heat. A refrigerant is contained within what is described as a refrigeration loop. Liquid refrigerant, under pressure, is released into an evaporator, where, now under low pressure, it boils, absorbing heat from the space to be refrigerated. In the course of that process, the liquid refrigerant is entirely evaporated. It is drawn into a compressor in which it is both compressed and further heated. Thence it passes through tubing to a condenser. There, still under pressure, it loses heat through the walls of the condenser, condensing into liquid. It is then piped once more to the evaporator. The process continues so long as the compressor operates. In general terms, that is the way in which both refrigerators, domestic and industrial, and air conditioning systems (including those installed in motor vehicles) work.' The Commissioner's response was that the foregoing dicta was of no assistance to Lindsay, emanating as it did from 'a different statutory and factual context', and moreover that ICI Chemicals referred to 'refrigeration abstractly as a process or treatment to goods, and cannot assist in determining whether the process concerned was a manufacture related activity process'. I have not found that response on the Commissioner's part to be persuasive, and such as to reflect any distinction relevantly of the authorities cited by Lindsay and identified above by way of illustration. Refrigeration does involve to my mind, both conceptually and realistically, a process or treatment by way of transfer of heat of temperature (as probably reflected in ICI Chemicals above), and I therefore am of the opinion that the analogy advanced by Lindsay was soundly or sufficiently conceived.
Case: Ranicar v Frigmobile Pty Ltd and Royal Insurance Australia Ltd (1983) TasR 113
Outcome: cited
It was therefore submitted by Lindsay that the evidence, which I have sought thus far to summarise, sufficiently established that its refrigeration unit was used in conjunction with the reefer or rigid body (all three of course together comprising the relevant goods the subject of the proceedings) in order to control the environment in which a manufacturer's temperature-sensitive goods were to be held and maintained in the course of transit, and in order thereby to prevent those goods from spoiling or perishing and to maintain their marketable condition for the benefit of the manufacturer or other principal involved. So much was described by Lindsay as reflective of 'a paradigm case illustrating the purpose which subItem 18(5)(c) was intended to serve'. In any event, so Lindsay's submissions continued, if contrary to that submission, the subItem 18(5)(c) notion of 'process or treatment to goods for the purpose of bringing them into, or keeping them in, the form or condition in which they are to be marketed or used by a person' does require change to occur in order for goods to be subjected to a process or treatment , the in transit refrigeration process applied by Lindsay did involve a physical change to the goods subjected thereto, being a change from that prevailing at the time prior to any process or treatment by way of establishment of the requisite degree of coolness in relation to the goods. I was referred in that regard, by way of purportedly analogous exemplification, to a decision of the Supreme Court of Tasmania in Ranicar v Frigmobile Pty Ltd and Royal Insurance Australia Ltd (1983) TasR 113, where Green CJ said as follows (at 117): 'The question which remains is whether in the circumstances of this case that change in temperature amounted to damage in the scallops. In my view, it plainly did. An alteration in temperature undeniably involves a physical change to a substance and in this case that change had the effect of removing one of the primary qualities which the scallop had their exportability. As a result, it is plain that their usefulness was impaired and their value reduced. That is not to say, of course, that in every case a change in temperature would amount to damage. It would depend upon the circumstances and the nature of the goods.' Reliance was placed by Lindsay in particular upon the implications there stated of '[a]n alteration in temperature [involving] a physical change to a substance' . The Commissioner rejoined that when a supermarket places frozen chickens in its freezer, it could not be said that it was thereby engaging in part of a manufacturing process', but the analogy is hardly compelling. Either way, arguments by way of analogy so often carry at least marginal difficulty, but I do not think that the dictum in Ranicar can be so radically rejected merely by the analogy proffered by the Commissioner.
Case: Alfred Thangarajah Durayappah v W J Fernando and Others [1967] 2 AC 337
Outcome: considered
The urgency of the circumstances may limit the period in which a person may have a right to be heard: see Alfred Thangarajah Durayappah v W J Fernando and Others [1967] 2 AC 337 at 346; see also Re Refugee Tribunal and Another; Ex parte Aala [2000] HCA 57 ; (2000) 176 ALR 219 at [60] . The period in which to show cause provided in the Notice was short. However, the operation of the Mutitjulu community was in a state of crisis, and had been so since 1 July 2006. Accordingly I consider that in these circumstances the period prescribed was reasonable. Even if such period of notice were not regarded as reasonable, the Court would not grant the relief sought in view of the urgency and exceptional circumstances surrounding the need for an administrator's appointment.
Case: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs and Another [2005] HCA 72 ; 222 ALR 411
Outcome: referred to
Mutitjulu further submits that the Registrar was subconsciously motivated to issue the Notice based upon untested information supplied to it by FaCSIA: see Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs and Another [2005] HCA 72 ; 222 ALR 411 at [19] . Mutitjulu submits that the Registrar, prior to the issue of the Notice, was bound to put the allegations made by FaCSIA to Mutitjulu as being ' credible, relevant and significant ' information, and to obtain a response from Mutitjulu prior to the issue of the Notice. 44 In VEAL the Court was concerned with the failure of the Tribunal to inform the appellant of the existence of a letter which could have influenced the decision which it was required to make. In Kioa and Others v West and Another [1985] HCA 81 ; (1985) 159 CLR 550, the Court determined that the decision-maker was required to provide an opportunity to a party to respond to information which was adverse to the interests of that party, and which the decision maker proposes to take into account in making the decision (at 628). 45 Although generally an opportunity should be given to a party whose interests are affected by a decision to deal with adverse information that is ' credible, relevant and significant to the decision to be made ' (see Kioa v West at 629), the allegations influencing the decision of FaCSIA was not information which was credible, relevant and significant to the decision of the Registrar to appoint an administrator. That information ' can and should be put aside from consideration by the decision-maker as not, credible, not relevant, or of little or no significance to the decision to be made.' (see VEAL at [17]).
Case: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1 ; [1948] 1 KB 223
Outcome: distinguished
Mutitjulu submits that the Notice was unreasonable in the Wednesbury sense (see: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1 ; [1948] 1 KB 223) or that it was otherwise procedurally unfair because only one day was allowed for a response. 42 Mutitjulu submits that prior to the issue of the Notice, the Registrar was bound to satisfy herself that adequate grounds existed to warrant the issue of the Notice. Mutitjulu submits that the grounds relied upon by FaCSIA to cease funding to Mutitjulu were based upon unproven allegations that were broadcast in the ' Lateline' program on ABC television which related to alleged unlawful conduct of several persons holding office within the Mutitjulu community. Mutitjulu submits that it was the duty of the Registrar to ascertain whether there was any truth in such allegations. It submits that Mr Armstrong was aware of this possibility when, in a memorandum prepared by him in support of the issue of the Notice he observed: 'Whilst the reply [of Mutitjulu] does raise some interesting points surrounding procedural unfairness by FaCSIA (which is not for ORAC to consider).' 49 In the circumstances it was not unreasonable, in the Wednesbury sense, for the Registrar to issue the Notice. The Wednesbury unreasonableness alleged is of the kind referred to by Weinberg J in Australian Retailers Association and Others v Reserve Bank of Australia [2005] FCA 1707 ; (2005) 148 FCR 446 at 585 [570] where His Honour said: 'Many of the particulars relied upon by the applicants in support of Wednesbury unreasonableness seem to me simply to manifest disagreement on their part with some detail or other of PSB's reasoning. Even if there is substance in some of their points, this does not give rise to reviewable error.' 50 The Registrar had before her information that was ' credible, relevant and significant ' ( Kioa v West , per Brennan J 628-9) namely that funding to the community had ceased; that Mutitjulu was in debt; and that there was no prospect of any income to support the operations of the community unless an administrator was appointed which justified the issue of the Notice. These were relevant considerations for the Registrar. For the reasons specified above I consider that the Registrar's decision was reached ' by a process of logical reasoning ': see Hill v Green [1999] NSWCA 477 ; (1999) 48 NSWLR 161. I therefore reject Mutitjulu's Wednesbury submissions.
Case: Australian Retailers Association and Others v Reserve Bank of Australia [2005] FCA 1707 ; (2005) 148 FCR 446
Outcome: cited
In the circumstances it was not unreasonable, in the Wednesbury sense, for the Registrar to issue the Notice. The Wednesbury unreasonableness alleged is of the kind referred to by Weinberg J in Australian Retailers Association and Others v Reserve Bank of Australia [2005] FCA 1707 ; (2005) 148 FCR 446 at 585 [570] where His Honour said: 'Many of the particulars relied upon by the applicants in support of Wednesbury unreasonableness seem to me simply to manifest disagreement on their part with some detail or other of PSB's reasoning. Even if there is substance in some of their points, this does not give rise to reviewable error.'
Case: Cassell v The Queen [2000] HCA 8 ; (2000) 201 CLR 189
Outcome: followed
Even if, contrary to the above finding, Mr Andrews did not possess the requisite power for the purpose of the appointment, the circumstances surrounding the appointment were such that the Court would exercise its discretion to decline the relief claimed. Considering the arrangements that may have been made in the intervening period the consequences of deeming the appointment invalid are such as may cause considerable inconvenience. The 'defacto officers' doctrine' was considered by Kirby J in Cassell v The Queen [2000] HCA 8 ; (2000) 201 CLR 189 at [71] in which it was observed that the doctrine was usually invoked to cure an accidental or unintentional lack of authority: see also GJ Coles &amp; Co Ltd and Others v Retail Trade Industrial Tribunal and Others (1987) 7 NSWLR 503 at 525-526. At 527 it was said: 'Whatever is the true account of the origin of the de facto officer rule, its rationale in modern times is the protection which affords the public' Such doctrine would have application with equal force in the present circumstances.
Case: GJ Coles &amp; Co Ltd and Others v Retail Trade Industrial Tribunal and Others (1987) 7 NSWLR 503
Outcome: cited
Even if, contrary to the above finding, Mr Andrews did not possess the requisite power for the purpose of the appointment, the circumstances surrounding the appointment were such that the Court would exercise its discretion to decline the relief claimed. Considering the arrangements that may have been made in the intervening period the consequences of deeming the appointment invalid are such as may cause considerable inconvenience. The 'defacto officers' doctrine' was considered by Kirby J in Cassell v The Queen [2000] HCA 8 ; (2000) 201 CLR 189 at [71] in which it was observed that the doctrine was usually invoked to cure an accidental or unintentional lack of authority: see also GJ Coles &amp; Co Ltd and Others v Retail Trade Industrial Tribunal and Others (1987) 7 NSWLR 503 at 525-526. At 527 it was said: 'Whatever is the true account of the origin of the de facto officer rule, its rationale in modern times is the protection which affords the public' Such doctrine would have application with equal force in the present circumstances.
Case: Hill v Green [1999] NSWCA 477 ; (1999) 48 NSWLR 161
Outcome: cited
The Registrar had before her information that was ' credible, relevant and significant ' ( Kioa v West , per Brennan J 628-9) namely that funding to the community had ceased; that Mutitjulu was in debt; and that there was no prospect of any income to support the operations of the community unless an administrator was appointed which justified the issue of the Notice. These were relevant considerations for the Registrar. For the reasons specified above I consider that the Registrar's decision was reached ' by a process of logical reasoning ': see Hill v Green [1999] NSWCA 477 ; (1999) 48 NSWLR 161. I therefore reject Mutitjulu's Wednesbury submissions.
Case: Jamieson v Guri War Ngundagar Aboriginal Corporation [2001] FCA 1104
Outcome: referred to
Mutitjulu claims that the period of notice of one day was unreasonably short. It submits that s 71(1) requires ' a reasonable period ' and that the period allowed was simply too short to satisfy this requirement. Mutitjulu refers to the decision of Stone J in Jamieson v Guri War Ngundagar Aboriginal Corporation [2001] FCA 1104 wherein Her Honour observed that a period of seven days was ' a very short time '. 36 The Registrar was aware, prior to the issue of the Notice, that Mutitjulu's accounts recorded a deficit of $171,595.60, that funding had ceased from 1 July 2006, and that no funds would be available to pay staff or to provide for any of the services necessary for the continued operation of the community. Accordingly, Mutitjulu was unfunded. 37 Despite meetings between FaCSIA and Mutitjulu, no arrangement had been made acceptable to FaCSIA for a resumption of funding in the absence of an administrator. The Registrar was aware that Mutitjulu had been afforded an opportunity to respond to the allegations made against it by FaCSIA and despite Mutitjulu's representations contained in its letter of 11 July 2006 to the Minister, the situation remained unchanged. The letter from Mutitjulu to the Registrar did not offer any plan of action which might have led to a restoration of funding. Accordingly the Registrar was entitled to believe that the funding of Mutitjulu would not be resumed.
Case: Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40 ; (1985-1986) 162 CLR 24 , 
Outcome: followed
The ground of failure to take into account a relevant consideration similarly does not arise in this instance as this ground is only established if the decision maker fails to take into account a consideration which he or she is bound to take into account in making the decision: see Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40 ; (1985-1986) 162 CLR 24 at 39; Kioa v West at 630. The Registrar was not obliged to consider the material relied upon by FaCSIA because the Registrar had no power to control FaCSIA's decision making. The Registrar was only concerned with the consequence of the disputed matters between Mutitjulu and FaCSIA, namely that funding had ceased on 30 June 2006 and that Mutitjulu had no source of income from that time.
Case: Re Refugee Tribunal and Another; Ex parte Aala [2000] HCA 57 ; (2000) 176 ALR 219
Outcome: referred to
The urgency of the circumstances may limit the period in which a person may have a right to be heard: see Alfred Thangarajah Durayappah v W J Fernando and Others [1967] 2 AC 337 at 346; see also Re Refugee Tribunal and Another; Ex parte Aala [2000] HCA 57 ; (2000) 176 ALR 219 at [60] . The period in which to show cause provided in the Notice was short. However, the operation of the Mutitjulu community was in a state of crisis, and had been so since 1 July 2006. Accordingly I consider that in these circumstances the period prescribed was reasonable. Even if such period of notice were not regarded as reasonable, the Court would not grant the relief sought in view of the urgency and exceptional circumstances surrounding the need for an administrator's appointment.
Case: Australian Broadcasting Corporation v Lenah Game Meats Pty Limited [2001] HCA 63 ; (2001) 208 CLR 199
Outcome: followed
It was alleged, in the particulars given to par 31, that that conversation occurred between Mr Llewellyn and Mr John Alexander who was the Chief Executive Officer and Managing Director of another company, Publishing and Broadcasting Limited. In Australian Broadcasting Corporation v Lenah Game Meats Pty Limited [2001] HCA 63 ; (2001) 208 CLR 199 at 226 [42] Gleeson CJ said that: 'There is no bright line which can be drawn between what is private and what is not. Use of the term " public " is often a convenient method of contrast, but there is a large area in between what is necessarily public and what is necessarily private. An activity is not private simply because it is not done in public. It does not suffice to make an act private that because it occurs on private property, it has such measure of protection from the public gaze as the characteristics of the property, the nature of the activity, the locality and the disposition of the property owner combine to afford. Certain kinds of information about a person such as information relating to health, personal relationships or finances may be easy to identify as private, as may certain kinds of activity which a reasonable person applying contemporary standards of morals and behaviour would understand to be meant to be unobserved. The requirement that disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary person of ordinary sensibilities is in many circumstances a useful practical test of what is private.' 33 In my opinion the way in which public broadcasting licences are conducted and the responsibility of those in senior positions within them as to their conduct is a matter is capable of being of genuine public interest and is not such as would ordinarily be regarded as entirely private. 34 I am unable to accept without any evidence to support the submission of Nine Network that what is contained in par 31 on p 7 of the statement of claim is simply a matter of prurience. I accept that it is at this stage an untested allegation, as indeed any fair report of the statement of claim or the proceedings would need to make clear for it to carry the privilege against being liable for publication of defamatory matter. That is so even if it is now the law under the uniform Defamation Acts 2005 and 2006 of the various States and Territories that corporations employing more than 10 persons cannot sue for defamation. Necessarily, corporations act through individuals and those individuals, to the extent that their conduct is impugned in material reported about what goes on in courts, can be identified and can raise causes of action if there is unfair and inappropriate reporting. But it is a fundamental of a free society that there be the opportunity of members of the public to see and know what goes on in courts, including pursuant to the rules of this court, what allegations are made in open court.
Case: Batistatos v The Roads and Traffic Authority of New South Wales [2006] HCA 27
Outcome: applied
In Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 at [9] Gleeson CJ and Gummow, Hayne and Crennan JJ said that: '... what amounts to an abuse of the court process is insusceptible of a formulation comprising closed categories. Development continues.' 14 Their Honours referred to the grant of an anti-suit injunction and said that the counterpart of the power of the court to prevent an abuse of its processes was the power of the court to protect the integrity of those processes once set in motion.