mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Federal Commissioner of Taxation v Total Holdings (Aust) Pty Ltd (1979) 79 ATC 4279 at 4283
Outcome: cited
Their Honours reviewed the case law, and in particular the decision of the High Court in Steele v Deputy Commissioner of Taxation (1999) 197 CLR 449. They applied (at [20]) the statement of the High Court, adopting what was said by Lockhart J in Federal Commissioner of Taxation v Total Holdings (Aust) Pty Ltd (1979) 79 ATC 4279 at 4283, that a taxpayer may be entitled to a deduction after a business has ceased, provided the occasion of a business outgoing is to be found in the business operations directed towards the gaining or production of assessable income generally. However, cessation of business may be of factual importance. Their Honours (at [24]) concluded that the trial judge was correct in determining that the occasion for the loss or outgoing in question was the payment of interest which the taxpayers were obliged (their Honour's emphasis) to pay under the loan contract.
Case: Commissioner of Taxation v Sleight [2004] FCAFC 94 ; (2004) 136 FCR 211 at [46] - [61]
Outcome: cited
This does not mean, however, that Mr Guest was not carrying on business. He did so by engaging his agent Johnson Farm Management for that purpose: qui facit per alium facit per se ; see also Commissioner of Taxation v Sleight [2004] FCAFC 94 ; (2004) 136 FCR 211 at [46] - [61] , the facts of which are quite similar to the present case. Mr Guest's involvement in the blueberry growing at Corindi was comparable to that of English absentee landlords of Irish estates in the nineteenth century. They conducted their business through the medium of agents such as Captain Hugh Boycott, who gave his name to the language. 93 The blueberry project involved the motive of profit, albeit not immediate, repetition of activities, systematic organisation, and the investment by Mr Guest and the other three individuals of significant amounts. This was not a hobby. 94 Since there will need to be some adjustment to the amounts (see [63] above), I direct counsel to bring in minutes of proposed orders to give effect to these reasons. I certify that the preceding ninety-four (94) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey . Associate: Dated: 23 February 2007 Counsel for the Applicant: G T Pagone QC and M Flynn Solicitors for the Applicant: Coadys Counsel for the Respondent: R A Brett QC, S Steward and S Sharpley Solicitor for the Respondent: Australian Government Solicitor Dates of Hearing: 29 November 2006, 8 February 2007 Date of Judgment: 23 February 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/193.html
Case: Randhawa v Minister for Immigration, Local Government &amp; Ethnic Affairs (1994) 52 FCR 437
Outcome: cited
It is considered that the appeal must be dismissed for the reasons previously given by both the Migration Review Tribunal and the Federal Magistrates Court. The Grounds of Appeal seek to characterise the errors as being errors of law, jurisdictional error and procedural fairness. There is also a ground which asserts that the Federal Magistrate did not apply Randhawa v Minister for Immigration, Local Government &amp; Ethnic Affairs (1994) 52 FCR 437. The grounds are expressed in the most general terms but content may be given to them if reference is made to the reasons for decision of the Tribunal and the Federal Magistrate. 5 The Appellant's written submissions filed in this Court also make a submission as to a breach of s 359A of the Migration Act 1958 (Cth). 6 It is considered that each of the Grounds of Appeal should be dismissed as should the submission in respect to s 359A. 11 The decision of the Full Court in Randhawa v Minister for Immigration, Local Government &amp; Ethnic Affairs (1994) 52 FCR 437 is a decision as to the definition of a " refugee ". Its relevance to the present proceedings, other than an impermissible attempt to now recanvass the earlier unsuccessful claims for a protection visa, is not apparent.
Case: SJSB v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 225
Outcome: followed
Provision is made in the Migration Act 1958 (Cth) for the grant of a visa: s 65. Section 73 provides for the grant of a " bridging visa ", provided an applicant satisfies criteria which may be prescribed by regulation: s 31(3). Failure to satisfy those criteria requires a refusal of the application: SJSB v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 225 at [15] per Ryan, Jacobson and Lander JJ. 9 For present purposes, the regulations of relevance may be found in Schedule 2 to the Migration Regulations 1994 (Cth), being regulations 010.211 and 010.221. Those regulations relevantly provide as follows: 010.21 Criteria to be satisfied at the time of application. 010.211 (1) The applicant meets the requirements of subclause (2), (3), (4), (5) or (6). (2) An applicant meets the requirements of this subclause if: (a) the applicant has made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia; and (b) that application has not been finally determined;... ... (3) An applicant meets the requirements of this subclause if: ... (c) at the time of that application, he or she held a Bridging A (Class WA) or Bridging B (Class WB) visa; .... ... (4) An applicant meets the requirements of this subclause if: ... (b) he or she has not applied for a Protection (Class AZ) or Protection (Class XA) visa; ... ... (5) An applicant meets the requirements of this subclause if: (a) the applicant has made a valid application for: [specified visas]...; ... (6) An applicant meets the requirements of this subclause if: (a) the applicant has made a valid application for: ...[specified visas]; and ... 010.22 Criteria to be satisfied at the time of decision. 010.221 The applicant continues to satisfy the criterion set out in clause 010.211. 10 For the reasons given by the Migration Review Tribunal, the Appellant does not satisfy Clauses 010.211(2), (3), (4), (5) or (6). The now Appellant did not satisfy Clause 010.211(2)(b) as his application for a protection visa had been " finally determined " at the time of his application in November 2006. That phrase is further defined by s 5(9) of the Migration Act 1958 (Cth). In the circumstances of the present case, the application for the protection visa had been " finally determined " as the delegate had refused the application and there had been no review " instituted as prescribed " within the meaning of s 5(9)(b). The Appellant did not satisfy cl 010.211(3)(c) as he was not the holder of a bridging visa A or B; he did not satisfy cl 010.211(4)(b) as he had applied for a protection visa; and there was no evidence that he had applied for a class of visa prescribed by cl 010.211(5)(a) or (6)(a).
Case: SZBYR v Minister for Immigration &amp; Citizenship [2007] HCA 26 , 235 ALR 609
Outcome: followed
Comfort was sought to be drawn by the Respondent Minister in a submission that the matters in respect of which comment was sought was not " information" within the meaning of s 359A and that, accordingly, an invitation need not have been sent at all. That submission may well be correct. It may well be that the matters set forth are more in the nature of the thought processes or reasoning of the Tribunal: SZBYR v Minister for Immigration &amp; Citizenship [2007] HCA 26 at [18] , [2007] FCA 26 ; 235 ALR 609 at 616 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ. But, insofar as the Appellant is concerned, such subtleties do not deny the fact that he would have received the letter and read that it was forwarded to him in an attempt to " ensure both a fair and speedy review process ." The letter previously stated: The Migration Act 1958 (the Act) contains provisions intended to ensure both a fair and speedy review process. These include opportunities for review applicants to respond to material before the Tribunal, as well as limits on further opportunities if there is a failure to provide comments within a specified period. Section 359A of the Act states that the Tribunal must explain, and invite comments on, 'particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review.' If a letter in the form of that forwarded to the Appellant is to be sent, it is considered at a minimum that the letter should identify the source of the requirements being set forth and either extract the relevant provisions or annex a copy of the relevant Regulations . The bona fides of the author of the letter are not in question. What is in question is whether such matters as were disclosed in the letter put the recipient in a position where he could meaningfully contribute to what was held out as a " fair and speedy review process ". 15 Such deficiencies in the letter, however, do not advantage the Appellant, even if a breach of s 359A is made out and even if leave to raise the matter had been permitted. The simple fact is that he cannot bring himself within regulation 010.211 of Schedule 2 to the Migration Regulations and leave to amend should thus be refused. Any relief would have been refused as a matter of discretion: cf SZBYR v Minister for Immigration &amp; Citizenship [2007] HCA 26 at [27] [29], [2007] FCA 26 ; 235 ALR 609 at 618 19 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ. In the present case, the refusal of leave to amend and the refusal of relief, even if a breach be established, is an exercise of discretion that " is proper, prudent, economical and just ": [2007] HCA 26 at [87] per Kirby J. 16 None of the Grounds of Appeal is made out. 17 Accordingly, the appeal must be dismissed. An award of costs is always discretionary but there is no reason why the usual approach to the award of costs should not apply.
Case: Blatch v Archer [1774] EngR 2 ; (1774) 1 Cowp 63
Outcome: cited
The power of a party to adduce evidence may be relevant to the weight to be accorded to the evidence presented ( Apollo Shower Screens at 565; Blatch v Archer [1774] EngR 2 ; (1774) 1 Cowp 63 at 65; Ho v Powell (2001) 51 NSWLR 572 at [15]). It may also be relevant to the standard of proof. There is, however, a distinction between the probabilities on limited material available and whether limited material provides an appropriate basis on which to reach a reasonable decision ( Ho at [14]).
Case: De Rose v State of South Australia [2003] FCAFC 286 ; (2003) 133 FCR 325
Outcome: referred to
The Minister submits that a party seeking to resist the making of the orders sought in a non-claimant application must adduce or identify at least some credible evidence addressing the following matters as identified in Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58 ; (2002) 214 CLR 422 , De Rose v State of South Australia [2003] FCAFC 286 ; (2003) 133 FCR 325 and De Rose v South Australia (No 2) [2005] FCAFC 110 ; (2005) 145 FCR 290: a that at the time of sovereignty there was "a body of persons united in and by its acknowledgement and observance of a body of laws and customs" (the "pre-sovereignty society"); b the nature and content of a normative body of laws and customs (the "traditional laws and customs") pursuant to which rights and interests were held at the time of sovereignty; c the nature and content of the rights and interests held at the time of sovereignty pursuant to the traditional laws and customs (the "traditional rights and interests"); d that the pre-sovereignty society has substantially maintained its identity and existence from generation to generation in accordance with the traditional laws and customs through to the present time; e that the traditional laws and customs have been acknowledged and observed by the pre-sovereignty society and their successors, and that such acknowledgement and observance has continued substantially uninterrupted since sovereignty; f that since sovereignty the pre-sovereignty society and their successors have maintained a connection with the application area and have transmitted rights and interests in relation to the application area by and in accordance with the traditional laws and customs; g that they, the native title claim group (as a whole), acknowledge and observe the traditional laws and customs; h the nature and content of the traditional laws and customs observed by members of the native title claim group; i that, by the traditional laws and customs that are still observed by them, the native title claim group has a connection with the application area; j that, by the traditional laws and customs that are still observed by them, the native title claim group has rights and interests in the application area; k the nature and extent of the extant rights and interests; and, l that such rights and interests have not been extinguished, (or if extinguishment has occurred, it is to be disregarded); and are not "antithetical to the fundamental tenets of the common law".
Case: De Rose v South Australia (No 2) [2005] FCAFC 110 ; (2005) 145 FCR 290
Outcome: referred to
The Minister submits that a party seeking to resist the making of the orders sought in a non-claimant application must adduce or identify at least some credible evidence addressing the following matters as identified in Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58 ; (2002) 214 CLR 422 , De Rose v State of South Australia [2003] FCAFC 286 ; (2003) 133 FCR 325 and De Rose v South Australia (No 2) [2005] FCAFC 110 ; (2005) 145 FCR 290: a that at the time of sovereignty there was "a body of persons united in and by its acknowledgement and observance of a body of laws and customs" (the "pre-sovereignty society"); b the nature and content of a normative body of laws and customs (the "traditional laws and customs") pursuant to which rights and interests were held at the time of sovereignty; c the nature and content of the rights and interests held at the time of sovereignty pursuant to the traditional laws and customs (the "traditional rights and interests"); d that the pre-sovereignty society has substantially maintained its identity and existence from generation to generation in accordance with the traditional laws and customs through to the present time; e that the traditional laws and customs have been acknowledged and observed by the pre-sovereignty society and their successors, and that such acknowledgement and observance has continued substantially uninterrupted since sovereignty; f that since sovereignty the pre-sovereignty society and their successors have maintained a connection with the application area and have transmitted rights and interests in relation to the application area by and in accordance with the traditional laws and customs; g that they, the native title claim group (as a whole), acknowledge and observe the traditional laws and customs; h the nature and content of the traditional laws and customs observed by members of the native title claim group; i that, by the traditional laws and customs that are still observed by them, the native title claim group has a connection with the application area; j that, by the traditional laws and customs that are still observed by them, the native title claim group has rights and interests in the application area; k the nature and extent of the extant rights and interests; and, l that such rights and interests have not been extinguished, (or if extinguishment has occurred, it is to be disregarded); and are not "antithetical to the fundamental tenets of the common law".
Case: Derschaw v Sutton (1996) 17 WAR 419
Outcome: considered
Derschaw v Sutton (1996) 17 WAR 419 was a case of defensive native title to a criminal prosecution. That is, the defendants sought to establish the existence of native title as a defence. Justice Franklyn (with whom Murray J agreed) held at 431 that the defendants had to adduce or direct the Court's attention to evidence of each of the material matters necessary to establish the existence of native title. Despite Worimi's submission that the case has no precedent value, it should, as a decision of the Full Court of the Supreme Court of Western Australia, be followed unless it is plainly wrong ( Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at [135]). Similar reasoning has been followed in other cases (see, for example, Mason v Tritton (1994) 34 NSWLR 572; Dillon v Davies (1998) 156 ALR 142 ; Lewis v Wanganeen [2005] SASC 36). Special leave to appeal Derschaw to the High Court was refused. In my respectful opinion, it is not plainly wrong. Justice Franklyn , drawing from Mabo v The State of Queensland (No 2) [1992] HCA 23 ; (1992) 175 CLR 1 , pointed out that, in the absence of evidence going to each element of native title, there is insufficient foundation for the claim to have legal justification. I agree, with respect, with that analysis. To establish the existence of native title under the Act, the same elements of native title apply whether native title is asserted by an applicant or by a respondent.
Case: Hillig as Administrator of Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales (No 2) [2006] FCA 1115
Outcome: referred to
I have recorded the history of this matter in Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales [2007] FCA 1357 (' Worimi 2007 '). That history includes the striking out of two claimant applications filed by the third respondent, Mr Gary Dates, who prefers to be called Worimi. I will refer to him as Worimi. Each application was struck out pursuant to s 84C of the Act for failure to comply with s 61 ( Hillig as Administrator of Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales (No 2) [2006] FCA 1115 ; Worimi v Minister for Lands for the State of New South Wales [2006] FCA 1770 (' Worimi 2006 ')). Worimi did not give notice within the notification period that he wanted to be a party to the non-claimant application. On 30 March 2007, Worimi filed an amended notice of motion to be joined as a party to the non-claimant application pursuant to s 84(5) of the Act. For the reasons set out in Worimi 2007 , I made an order that he be joined as a respondent to these proceedings.
Case: Ho v Powell (2001) 51 NSWLR 572
Outcome: referred to
The power of a party to adduce evidence may be relevant to the weight to be accorded to the evidence presented ( Apollo Shower Screens at 565; Blatch v Archer [1774] EngR 2 ; (1774) 1 Cowp 63 at 65; Ho v Powell (2001) 51 NSWLR 572 at [15]). It may also be relevant to the standard of proof. There is, however, a distinction between the probabilities on limited material available and whether limited material provides an appropriate basis on which to reach a reasonable decision ( Ho at [14]).
Case: Jango v Northern Territory [2006] FCA 318 ; (2006) 152 FCR 150
Outcome: considered
Worimi says that, because the Land Council asserts that native title does not exist, it is required to prove the absence of each of the elements necessary to establish native title under the Act. On 19 December 2007, after Worimi had been joined and a hearing date allocated, I directed the filing of Statements of Contentions by the Land Council and by Worimi, better to understand the case being made by each of these parties. While the document that the parties were directed to file was called a Statement of Contentions, it was clearly not a pleading in the sense used in Jango v Northern Territory [2006] FCA 318 ; (2006) 152 FCR 150. In that case, the "Points of Claim" filed by the applicant was considered to define the nature of the applicant's claim. 33 Worimi says that the material facts in respect of each of the facts and contentions and in respect of each of the elements necessary to establish native title have not been articulated in the Land Council's Statement of Facts and Contentions. He treats them as equivalent to pleadings. They are not and were not intended by me to be so, nor were they understood by the Land Council as such. 34 Submissions have been made concerning what has been called ' the evidential onus ' of proof. The Land Council contends that, on establishing the matters necessary to demonstrate that the appropriate notification procedures have occurred and in the absence of a claimant application, the Court should infer that no native title exists over the Land and ' the evidential onus ' shifts to Worimi. The Land Council and the Minister both say that Worimi has ' an onus ' regarding his assertion that native title exists over the Land.
Case: Jango v Northern Territory (2007) 159 FCR 531
Outcome: referred to
Worimi asserts that he and his immediate family may be the only Worimi people who were given native title rights and interests in the Land and, he adds, in the area from Birubi Beach to Boat Harbour, under traditional laws and customs. It follows that Worimi has the means of bringing forward evidence to establish the existence of the native title rights and interests he asserts. It is not for the Court to conduct a roving enquiry as to whether anybody, and if so who, might hold native title over the Land ( Jango v Northern Territory (2007) 159 FCR 531 (' Jango ') at [84]). In considering the evidence adduced by Worimi, it is relevant that he is the person who is able to adduce evidence of the laws and customs that he asserts he and his family practise and observe. On the other hand, he has insufficient resources to present the expert historical and anthropological evidence to substantiate his claims.
Case: Mason v Tritton (1994) 34 NSWLR 572
Outcome: considered
Derschaw v Sutton (1996) 17 WAR 419 was a case of defensive native title to a criminal prosecution. That is, the defendants sought to establish the existence of native title as a defence. Justice Franklyn (with whom Murray J agreed) held at 431 that the defendants had to adduce or direct the Court's attention to evidence of each of the material matters necessary to establish the existence of native title. Despite Worimi's submission that the case has no precedent value, it should, as a decision of the Full Court of the Supreme Court of Western Australia, be followed unless it is plainly wrong ( Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at [135]). Similar reasoning has been followed in other cases (see, for example, Mason v Tritton (1994) 34 NSWLR 572; Dillon v Davies (1998) 156 ALR 142 ; Lewis v Wanganeen [2005] SASC 36). Special leave to appeal Derschaw to the High Court was refused. In my respectful opinion, it is not plainly wrong. Justice Franklyn , drawing from Mabo v The State of Queensland (No 2) [1992] HCA 23 ; (1992) 175 CLR 1 , pointed out that, in the absence of evidence going to each element of native title, there is insufficient foundation for the claim to have legal justification. I agree, with respect, with that analysis. To establish the existence of native title under the Act, the same elements of native title apply whether native title is asserted by an applicant or by a respondent. 72 In Mason v Tritton (1994) 34 NSWLR 572, Kirby P pointed to the difficulty for Aboriginal people to provide recorded details of, for example, genealogy. At 586 589, his Honour discussed the inferences that can be drawn to overcome the absence of evidence for the period from 1788 to a later time, in that case to the 1880s. Referring to the analysis in Wigmore on Evidence, vol 2, 3 rd edition at 437, his Honour said that it is not appropriate to apply a "presumption of continuance" but a process of inference. His Honour was prepared to draw an inference from proved use of land in the 1880s back to the time before 1788. As he noted, it is more easily drawn in more traditional Aboriginal communities. However, in Mason , there were other aspects of the claim to native title which were not proved. Further, it is hard to see from Yorta Yorta how a presumption of native title can be said to apply.