mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: R v Clarke [1927] HCA 47 ; (1927) 40 CLR 227
Outcome: distinguished
This case is distinguishable from Carlill v Carbolic Smoke Ball Co [1892] EWCA Civ 1 ; [1893] 1 QB 256 and the reward cases such as Williams v Carwardine [1833] EWHC J44 (KB) ; (1833) 5 C &amp; P 566; 172 ER 1101; see also R v Clarke [1927] HCA 47 ; (1927) 40 CLR 227. In this case, having regard to the form and content of the advertisement, the reference to booking and the nature of the event, it cannot be said that there was an offer capable of acceptance merely by going to the Convention Centre and offering to purchase a ticket. In my opinion, the decision in Denton v Great Northern Railway Co (1856) 5 E &amp; B 860; 119 ER 701 is distinguishable on the ground that the nature of a railway timetable is quite different from the advertisement in this case. Furthermore, it is commonly understood that the circumstances in which a train cannot carry a passenger are far more limited than the circumstances in which a member of the public is denied entry to an event such as that involved in this case. In any event, I prefer the reasoning of Crompton J in Denton v Great Northern Railway (supra) who doubted that the defendant was answerable in contract (5 E and B 867-870; ER 704-705).
Case: Williams v Carwardine [1833] EWHC J44 (KB) ; (1833) 5 C &amp; P 566; 172 ER 1101
Outcome: distinguished
This case is distinguishable from Carlill v Carbolic Smoke Ball Co [1892] EWCA Civ 1 ; [1893] 1 QB 256 and the reward cases such as Williams v Carwardine [1833] EWHC J44 (KB) ; (1833) 5 C &amp; P 566; 172 ER 1101; see also R v Clarke [1927] HCA 47 ; (1927) 40 CLR 227. In this case, having regard to the form and content of the advertisement, the reference to booking and the nature of the event, it cannot be said that there was an offer capable of acceptance merely by going to the Convention Centre and offering to purchase a ticket. In my opinion, the decision in Denton v Great Northern Railway Co (1856) 5 E &amp; B 860; 119 ER 701 is distinguishable on the ground that the nature of a railway timetable is quite different from the advertisement in this case. Furthermore, it is commonly understood that the circumstances in which a train cannot carry a passenger are far more limited than the circumstances in which a member of the public is denied entry to an event such as that involved in this case. In any event, I prefer the reasoning of Crompton J in Denton v Great Northern Railway (supra) who doubted that the defendant was answerable in contract (5 E and B 867-870; ER 704-705).
Case: Deputy Commissioner of Taxation v Richard Walter Pty Ltd [1995] HCA 23 ; (1995) 183 CLR 168
Outcome: applied
In Deputy Commissioner of Taxation v Richard Walter Pty Ltd [1995] HCA 23 ; (1995) 183 CLR 168 at 211, after referring to ss 175 and 177 and to the judgment of Dixon J in R v Hickman; Ex parte Fox and Clinton [1945] HCA 53 ; (1945) 70 CLR 598 at 615, Deane and Gaudron JJ said: "That approach should, in our view, be applied to the construction of s 175 of the Act. The result of its application is that s 175's protection from invalidity is applicable only if the purported 'assessment' (i) is 'a bona fide attempt' by the Commissioner or other authorised officer to exercise powers conferred by the Act , (ii) 'relates to the subject matter' of the Act and (iii) 'is reasonably capable of reference to' those powers. If a purported 'assessment' does not satisfy those three requirements, the protection of s 175 will be unavailable and the purported 'assessment' will be invalid."
Case: Briglia v Federal Commissioner of Taxation (2000) 2000 ATC 4,247
Outcome: cited
In Briglia v Federal Commissioner of Taxation (2000) 2000 ATC 4,247 at [9], Kenny J said: "It follows [from Richard Walter] that uncertainty on the Deputy Commissioner's part as to the facts relevant to the exercise of his power of assessment does not evidence an absence of bona fides in the Hickman sense. ... If, however, the Deputy Commissioner formed the view that there was no substantial possibility that an amount was part of the assessable income of a taxpayer, then the Commissioner could not bona fide assess that taxpayer as liable to tax in respect of that income." 24 The foregoing description of the audit process shows that once apprised by the Police of the applicant's arrest with $620,000 cash in his possession, the Commissioner proceeded in a methodical way to collect information about the applicant's financial affairs in order to determine whether any amounts should be included in his taxable income. As it turned out, two items were wrongly included in that income in the 2002 year. As I have said, the applicant successfully objected to that inclusion. But the fact that the Commissioner later accepted that he had erred in including these amounts does not establish that the assessment that contained them was not a bona fide attempt to assess the applicant's income. The applicant has not persuaded me that the Commissioner knew there was no substantial possibility that the amount he assessed was part of his assessable income. See the passage from Briglia set out at [12]. It may well be that the Commissioner was uncertain as to whether all the amounts he in fact included were truly income of the applicant, but that uncertainty does not show the absence of a bona fide attempt, as is pointed out in Futuris Corporation Ltd v Federal Commissioner of Taxation [2007] ATC 4600 at [44]. 37 Other cases that have found a lack of a bona fide attempt are in marked contrast to the present. In Darrell Lea Chocolate Shops Pty Ltd v Federal Commissioner of Taxation (1996) 72 FCR 175 at 188 the Full Court said: "Not only did the Commissioner not make any genuine attempt to ascertain the sale value of particular goods under each of the relevant Assessment Acts, but he also determined a sale value and purported to create a liability for sales tax upon facts which he knew were wrong. ... An assessment on facts known by the Commissioner to be untrue is of its nature unfair and oppressive." In the present case the Commissioner did not act upon any facts which he knew to be wrong. It is true that he did not know all the facts but, doing the best he could on the facts he did know, he made assessments. That they did not wholly survive review by the Tribunal does not establish the lack of a bona fide attempt: Madden at 396 and Briglia at [9].
Case: Futuris Corporation Ltd v Federal Commissioner of Taxation [2007] ATC 4600
Outcome: distinguished
The foregoing description of the audit process shows that once apprised by the Police of the applicant's arrest with $620,000 cash in his possession, the Commissioner proceeded in a methodical way to collect information about the applicant's financial affairs in order to determine whether any amounts should be included in his taxable income. As it turned out, two items were wrongly included in that income in the 2002 year. As I have said, the applicant successfully objected to that inclusion. But the fact that the Commissioner later accepted that he had erred in including these amounts does not establish that the assessment that contained them was not a bona fide attempt to assess the applicant's income. The applicant has not persuaded me that the Commissioner knew there was no substantial possibility that the amount he assessed was part of his assessable income. See the passage from Briglia set out at [12]. It may well be that the Commissioner was uncertain as to whether all the amounts he in fact included were truly income of the applicant, but that uncertainty does not show the absence of a bona fide attempt, as is pointed out in Futuris Corporation Ltd v Federal Commissioner of Taxation [2007] ATC 4600 at [44]. 38 Futuris is also distinguishable. There the Commissioner knew, at the time he issued the assessment, that the taxpayer's taxable income could be no greater than $169 million, yet he issued it for a taxable income of $188 million.
Case: Darrell Lea Chocolate Shops Pty Ltd v Federal Commissioner of Taxation (1996) 72 FCR 175
Outcome: distinguished
Other cases that have found a lack of a bona fide attempt are in marked contrast to the present. In Darrell Lea Chocolate Shops Pty Ltd v Federal Commissioner of Taxation (1996) 72 FCR 175 at 188 the Full Court said: "Not only did the Commissioner not make any genuine attempt to ascertain the sale value of particular goods under each of the relevant Assessment Acts, but he also determined a sale value and purported to create a liability for sales tax upon facts which he knew were wrong. ... An assessment on facts known by the Commissioner to be untrue is of its nature unfair and oppressive." In the present case the Commissioner did not act upon any facts which he knew to be wrong. It is true that he did not know all the facts but, doing the best he could on the facts he did know, he made assessments. That they did not wholly survive review by the Tribunal does not establish the lack of a bona fide attempt: Madden at 396 and Briglia at [9].
Case: R v Deputy Commissioner of Taxation (WA); Ex parte Briggs (1986) 12 FCR 301
Outcome: distinguished
His Honour went on at 396 to say that the Commissioner had available to him positive information as to the value of the heroin dealing undertaken by the taxpayer in the relevant income year. It was a substantial sum, and was adequate to provide a foundation for a default assessment in the circumstance in which the assessment needed to be issued. He concluded that conformably with the principles in R v Deputy Commissioner of Taxation (WA); Ex parte Briggs (1987) 14 FCR 249, the Commissioner was entitled to use the figure provided as a basis for the assessment. It "could well be erroneous, but it was nevertheless bona fide". 36 I do not attribute any significance to the sending of the garnishee notice to the applicant's former address. I do not accept the applicant's contention that the person who sent the copy notice to the wrong address did so in order that the applicant would not know it had been served on the Police. Mr Saunders, who knew of the changed address, was on leave at the crucial time, and the officer who acted in his absence was probably unaware of the change.
Case: Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298
Outcome: cited
The applicant submitted that the issues in the case were within the knowledge of the taxation officers and that their failure to give evidence gave rise to the inference that their evidence would not have assisted the Commissioner. He relied on Kordan Pty Ltd v Commissioner of Taxation [2002] FCA 1807 at [47] to [51] and Weissensteiner v The Queen [1993] HCA 65 ; (1993) 178 CLR 217 at 225-229. This reliance on Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298 is misplaced. As the Court said in that case at [48]: "the rule, however expressed, does not permit an inference to be drawn by reason of the failure of the other side to call a witness where that inference is not otherwise open. Put another way, the failure to call evidence does not provide positive evidence, nor does it fill up any gap in the evidence." In Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18 ; (2000) 200 CLR 121 at 143 Gleeson CJ and McHugh J approved a passage from the 6 th Australian edition of Cross on Evidence : "The rule [in Jones v Dunkel] only applies where a party is 'required to explain or contradict' something. What a party is required to explain or contradict depends on the issues in the case as thrown up in the pleadings and by the course of evidence in the case. No inference can be drawn unless evidence is given of facts 'requiring an answer'." Their Honours went on: "A Jones v Dunkel inference can only make certain evidence more probable. It 'cannot be used to make up any deficiency of evidence': Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298 at 312 per Menzies J." That observation is applicable here.
Case: Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18 ; (2000) 200 CLR 121
Outcome: applied
The applicant submitted that the issues in the case were within the knowledge of the taxation officers and that their failure to give evidence gave rise to the inference that their evidence would not have assisted the Commissioner. He relied on Kordan Pty Ltd v Commissioner of Taxation [2002] FCA 1807 at [47] to [51] and Weissensteiner v The Queen [1993] HCA 65 ; (1993) 178 CLR 217 at 225-229. This reliance on Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298 is misplaced. As the Court said in that case at [48]: "the rule, however expressed, does not permit an inference to be drawn by reason of the failure of the other side to call a witness where that inference is not otherwise open. Put another way, the failure to call evidence does not provide positive evidence, nor does it fill up any gap in the evidence." In Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18 ; (2000) 200 CLR 121 at 143 Gleeson CJ and McHugh J approved a passage from the 6 th Australian edition of Cross on Evidence : "The rule [in Jones v Dunkel] only applies where a party is 'required to explain or contradict' something. What a party is required to explain or contradict depends on the issues in the case as thrown up in the pleadings and by the course of evidence in the case. No inference can be drawn unless evidence is given of facts 'requiring an answer'." Their Honours went on: "A Jones v Dunkel inference can only make certain evidence more probable. It 'cannot be used to make up any deficiency of evidence': Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298 at 312 per Menzies J." That observation is applicable here.
Case: Kordan Pty Ltd v Commissioner of Taxation [2002] FCA 1807
Outcome: cited
The applicant submitted that the issues in the case were within the knowledge of the taxation officers and that their failure to give evidence gave rise to the inference that their evidence would not have assisted the Commissioner. He relied on Kordan Pty Ltd v Commissioner of Taxation [2002] FCA 1807 at [47] to [51] and Weissensteiner v The Queen [1993] HCA 65 ; (1993) 178 CLR 217 at 225-229. This reliance on Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298 is misplaced. As the Court said in that case at [48]: "the rule, however expressed, does not permit an inference to be drawn by reason of the failure of the other side to call a witness where that inference is not otherwise open. Put another way, the failure to call evidence does not provide positive evidence, nor does it fill up any gap in the evidence." In Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18 ; (2000) 200 CLR 121 at 143 Gleeson CJ and McHugh J approved a passage from the 6 th Australian edition of Cross on Evidence : "The rule [in Jones v Dunkel] only applies where a party is 'required to explain or contradict' something. What a party is required to explain or contradict depends on the issues in the case as thrown up in the pleadings and by the course of evidence in the case. No inference can be drawn unless evidence is given of facts 'requiring an answer'." Their Honours went on: "A Jones v Dunkel inference can only make certain evidence more probable. It 'cannot be used to make up any deficiency of evidence': Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298 at 312 per Menzies J." That observation is applicable here.
Case: Weissensteiner v The Queen [1993] HCA 65 ; (1993) 178 CLR 217
Outcome: cited
The applicant submitted that the issues in the case were within the knowledge of the taxation officers and that their failure to give evidence gave rise to the inference that their evidence would not have assisted the Commissioner. He relied on Kordan Pty Ltd v Commissioner of Taxation [2002] FCA 1807 at [47] to [51] and Weissensteiner v The Queen [1993] HCA 65 ; (1993) 178 CLR 217 at 225-229. This reliance on Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298 is misplaced. As the Court said in that case at [48]: "the rule, however expressed, does not permit an inference to be drawn by reason of the failure of the other side to call a witness where that inference is not otherwise open. Put another way, the failure to call evidence does not provide positive evidence, nor does it fill up any gap in the evidence." In Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18 ; (2000) 200 CLR 121 at 143 Gleeson CJ and McHugh J approved a passage from the 6 th Australian edition of Cross on Evidence : "The rule [in Jones v Dunkel] only applies where a party is 'required to explain or contradict' something. What a party is required to explain or contradict depends on the issues in the case as thrown up in the pleadings and by the course of evidence in the case. No inference can be drawn unless evidence is given of facts 'requiring an answer'." Their Honours went on: "A Jones v Dunkel inference can only make certain evidence more probable. It 'cannot be used to make up any deficiency of evidence': Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298 at 312 per Menzies J." That observation is applicable here.
Case: Neal v Secretary, Department of Transport (1980) 29 ALR 350
Outcome: cited
The jurisdiction of this Court to review a decision of the AAT is confined by the terms of s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) which confines an appeal to 'a question of law'. In Neal v Secretary, Department of Transport (1980) 29 ALR 350 at 354, Franki J stated that: 'There is no appeal to this court on anything other than a question of law and therefore the court is not concerned with whether or not it would have come to the same conclusion as the Tribunal came to, but only with the question of whether the Tribunal erred in law.'
Case: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Outcome: applied
In Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 286, the Full Court stated: 'The limitation of the jurisdiction to the resolution of questions of law imposes a significant constraint upon the role of the Court in reviewing decisions of the Tribunal. The appealable error of law must arise on the facts found by the Tribunal or must vitiate the findings made or must have led the Tribunal to omit to make a finding it was legally required to make. A wrong finding of fact is not sufficient to demonstrate error of law'. (citation omitted)
Case: Minister for Immigration and Citizenship v SZKTI [2009] HCA 30 ; (2009) 258 ALR 434
Outcome: cited
Minister submits that the concerns that the Tribunal had with the applicant's evidence were put to him. His Honour's conclusion that the Tribunal was frank and open in drawing attention to its concerns about the applicant's claims has not been shown to be in error. His Honour concluded that the ground based on s 424 of the Act was not made out, as there was no invitation for additional information pursuant to s 424. The applicant has not made out any such breach and there is no limitation on the general power under s 424(1) on the part of the Tribunal to obtain additional information ( Minister for Immigration and Citizenship v SZKTI [2009] HCA 30 ; (2009) 258 ALR 434). As to the applicant's assertion of procedural unfairness on the part of the tribunal, in that he said the Tribunal did not give him an opportunity to be heard, his Honour rejected that assertion. I accept the Minister's submission that there was no arguable case before the Federal Magistrate, and that the Federal Magistrates Court was entitled to exercise its discretion to dismiss the application without proceeding to a final hearing. There is not sufficient doubt about the Federal Magistrate's decision to warrant it being reconsidered by this Court. His Honour was entitled to dismiss the matter as he did. The applicant has not described any error in his Honour's decision. In my view, as the case has been presented in this Court, even if his Honour were in error, no substantial injustice would be suffered by the applicant if leave to appeal were refused. It follows that the application for leave to appeal is dismissed. The applicant is to pay the first respondent's costs. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate: Dated: 3 November 2009 Counsel for the Applicant: The Applicant appeared in person. Solicitor for the First Respondent: Ms T Quinn of DLA Phillips Fox Date of Hearing: 3 November 2009 Date of Judgment: 3 November 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1279.html
Case: SZNOG v Minister for Immigration and Citizenship [2009] FMCA 690
Outcome: affirmed
is an application for leave to appeal against the judgment of Driver FM of 21 July 2009, SZNOG v Minister for Immigration and Citizenship [2009] FMCA 690 , dismissing an application for judicial review of a decision of the Refugee Review Tribunal made on 8 April 2009 and sent to the applicant on 9 April 2009. The Tribunal had affirmed a decision of a delegate of the Minister who formed the view that the applicant was not a person to whom Australia has protection obligations under the Convention and accordingly refused to grant a protection visa on 15 December 2008. The proceedings in the Federal Magistrates Court began with a show cause application filed on 4 May 2009. The dismissal of the application by the Federal Magistrates Court was interlocutory by reason of rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth). Leave to appeal from an interlocutory judgment requires the applicant to show that there is sufficient doubt as to the correctness of the judgment below to warrant review and, further, that if the judgment below is assumed to be wrong, substantial injustice will be suffered by the applicant if leave to appeal were refused. The applicant is a citizen of India who arrived in Australia on 12 August 2008. He lodged an application for a protection visa with the Department of Immigration and Citizenship on 18 September 2008. The delegate refused the application on 15 December 2008. On 13 January 2009, the applicant applied to the Tribunal for a review of that decision. I will deal with the chronology that followed later in these reasons. In his application for a protection visa, the applicant claimed that he was born in a moderate Muslim family. He claimed that in the wake of the demolition of the Babri Mosque in 1992 and in the wake of the inter-religious riots that followed, his own family's home was set alight. He claimed that his father was an active member of the local Muslim community whose business was ransacked by a Hindu group called the RSS. The applicant claimed that he joined a group called the TMMK and was arrested by the police for attempting to hold a rally to ensure improved employment and living conditions for local Muslims. He claimed that he was interrogated and tortured. He claimed that he was thereafter targeted by police whenever there was a bombing and the Muslims were blamed for everything.