mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: R v Hickman; Ex parte Fox and Clinton [1945] HCA 53 ; (1945) 70 CLR 598
Outcome: cited
I agree with Besanko J, for the reasons his Honour gave, that on those allegations no arguable case of bad faith on the part of the respondent in making the assessment or the penalty assessment could be made out. As so much has been acknowledged by counsel for the applicant, I do not need to repeat those reasons. Furthermore, although it has not been expressly stated in this application, I note that Besanko J also rejected the further contention that arguably there had been a breach of s 166 of the 1936 Act and in any event his Honour found it beyond argument that s 175 meant that any such breach would not affect the validity of the assessment. His Honour also noted (as appears also to be the case here) that the claim based upon a want of procedural fairness had not been pursued before him, and in any event it was unarguable as ss 175 and 177 would operate so as not to affect the validity of the assessment even if there had been a want of procedural fairness to which the applicant was entitled. In the light of those provisions, Besanko J concluded, and I agree, that the applicant was bound to confine its challenge (as distinct from any challenge to the amount of the assessment under Pt IVC of the Taxation Administration Act 1953 (Cth)) to the "Hickman grounds" ( R v Hickman; Ex parte Fox and Clinton [1945] HCA 53 ; (1945) 70 CLR 598 per Dixon J at 615), relevantly that the assessment was not made in good faith.
Case: Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509
Outcome: applied
In those circumstances, assuming the Deed had not by then been entered into, it was not inappropriate for the respondent to endeavour to fix an amount in accordance with s 167 of the Act as the assessable income of Haritopoulos. Its decision to do so when it did, to protect or better secure its legal position, does not impugn the bona fides of the exercise of the power: Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509 at 534. Nor could the timing of the decision, or the reason for the timing of the decision, inform the manner in which the power under s 167 has exercised in the particular circumstances. 35 The position of the applicant is even more remote from the proposed Deed of Company Arrangement. There is nothing in that document to suggest that its position, or the position of the respondent in relation to the applicant, could have been affected in any way by it. The applicant is not mentioned in it. The only basis upon which counsel for the applicant sought to attribute the paragraph of the Reasons for Decision referred to in the proposed amended statement of claim to the issue of the assessment against the applicant was by use of the plural "assessments" in the passage that has been quoted. There is no reason to do so. The plural is readily explained by reference to the fact of the primary assessment under s 167 and then the penalty assessment made against Haritopoulos. In the context of that passage in those Reasons, there is no basis upon which the use of that plural expression could be taken to be referring to the applicant.
Case: Re Mendonca; Ex parte Commissioner of Taxation (1969) 15 FLR 256
Outcome: cited
It is also clear, for the reasons already expressed, that the particular paragraph of those Reasons for Decision could not have affected the respondent forming the view in terms of s 167(b) of the 1936 Act of not being satisfied with the return furnished by the applicant for the financial year ended 30 June 2002, or the assessment of the amount on which income tax ought to be levied. It is apparent on the material that the respondent had formed the view that a default assessment should be made in respect of the applicant's taxation liability for the financial years ended 30 June 2002, at least by 20 October 2005. The default assessment crystallised the liability of the applicant to pay income tax and determine its extent: Re Mendonca; Ex parte Commissioner of Taxation (1969) 15 FLR 256 at 259-260. It thus identified for the applicant when its taxation liability was due: Taylor v Commissioner of Taxation (1987) 16 FCR 212 at 217. But there is nothing to suggest the decision about the amount was other than made in good faith.
Case: Taylor v Commissioner of Taxation (1987) 16 FCR 212
Outcome: cited
It is also clear, for the reasons already expressed, that the particular paragraph of those Reasons for Decision could not have affected the respondent forming the view in terms of s 167(b) of the 1936 Act of not being satisfied with the return furnished by the applicant for the financial year ended 30 June 2002, or the assessment of the amount on which income tax ought to be levied. It is apparent on the material that the respondent had formed the view that a default assessment should be made in respect of the applicant's taxation liability for the financial years ended 30 June 2002, at least by 20 October 2005. The default assessment crystallised the liability of the applicant to pay income tax and determine its extent: Re Mendonca; Ex parte Commissioner of Taxation (1969) 15 FLR 256 at 259-260. It thus identified for the applicant when its taxation liability was due: Taylor v Commissioner of Taxation (1987) 16 FCR 212 at 217. But there is nothing to suggest the decision about the amount was other than made in good faith.
Case: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125
Outcome: cited
Under s 31A of the Federal Court of Australia Act 1976 (Cth) the Court may give summary judgment if it is satisfied that the applicant has no reasonable prospect of successfully prosecuting the proceeding. That section appears to relax the test imposed by General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125; see e.g. Garrett v National Australia Bank [2007] FCA 530 at [37] [38].
Case: Garrett v National Australia Bank [2007] FCA 530
Outcome: cited
Under s 31A of the Federal Court of Australia Act 1976 (Cth) the Court may give summary judgment if it is satisfied that the applicant has no reasonable prospect of successfully prosecuting the proceeding. That section appears to relax the test imposed by General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125; see e.g. Garrett v National Australia Bank [2007] FCA 530 at [37] [38].
Case: Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298
Outcome: cited
If there had been some evidence to the effect contended for by the applicant, then the absence of evidence from Ms Pereira might more readily lead to the inference for which the applicant contended. However, the omission to call evidence from Ms Pereira could 'not properly be treated as supplying any gap which the evidence adduced for the (plaintiff) left untouched': Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298 per Kitto J at 308. 64 I am also not satisfied that the respondents were on notice that evidence should be led from Ms Pereira on that issue. The applicant's application sought evidence that she held a Transitional (Permanent) visa. She could only be entitled to a Transitional (Permanent) visa if she held at Authority to Return or a Return Endorsement as at 1 September 1994. It is not clear then, in those circumstances, why, on the application as it was framed, the respondents needed to adduce evidence from Ms Pereira. 65 There was nothing in the applicant's case to put the respondents on notice that the applicant asserted that the action taken on 12 September 1997 by Ms Pereira was taken deliberately and with knowledge that the applicant had not entered Australia between April 1991 and October 1996. It was not raised in correspondence with the respondents or DIMA. It was not referred to in the application or affidavits. It was not raised in the applicant's written submissions. The respondents were never put on notice that it was a live issue that needed to be addressed. The applicant did not, at any time prior to the hearing, take issue with the respondents' assertion in 2003 that the action of 12 September 1997 was due to administrative error. For those further reasons, it would be inappropriate to raise an inference of the kind contended by the applicant due to a failure to call Ms Pereira.
Case: Jadwan Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCAFC 288 ; (2003) 204 ALR 55
Outcome: cited
The applicant argued that the cancellation was void 'ab initio'. She argued that an administrative decision involving jurisdictional error lacks legal foundation and can be regarded as no decision at all. In that regard, the applicant's counsel relied on Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 ; (2001) 209 CLR 597 (' Bhardwaj '). The effect of the High Court decision in Bhardwaj was explained by the Full Court of this Court in Jadwan Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCAFC 288 ; (2003) 204 ALR 55. In that case, Gray and Downes JJ addressed the reasoning of the members of the High Court and said at [40]: 'This analysis shows that the judgment in Bhardwaj rested clearly upon the proposition that the relevant legislation did not give the first decision of the IRT force and effect such as to require the IRT to treat that decision as precluding it from exercising its statutory function. All six judges who formed the majority did so on that basis. Only Gaudron and Gummow JJ, with the agreement of McHugh J, as part of their reasoning, relied on the proposition that jurisdictional error on the part of the decision-maker causes an administrative decision to be of no legal effect. Gleeson CJ, Hayne J and Callinan J do not appear to have embraced that proposition. Kirby J in his dissenting judgment clearly did not. Gaundron and Gummow JJ did not explain in detail the consequences of the proposition that a decision has no legal effect. They did not deal with issues such as the status of the first decision of the IRT if the IRT had not chosen to ignore it and make another. Indeed, their Honours did not discuss what might be the factual, as distinct from the legal, consequences attaching to an administrative decision if no challenge to its validity is ever made, or if any challenge to its validity is made out of time, or is made in proceedings to which someone bound or otherwise affected by the decision is not a party. Nor did their Honours say anything about the possible effect of an administrative decision after a court proceeding in which a party has made out a case of jurisdictional error on the part of the decision-maker, but the court has declined to grant relief in relation to the decision by reason of discretionary considerations. The facts of Bhardwaj did not call for pronouncement upon these issues. The IRT had itself chosen to ignore its previous decision. The validity of that decision was in issue in the very proceeding with which the High Court was dealing.'
Case: Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1
Outcome: cited
That concession, I think, also has been rightly made. In Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1, McHugh and Gummow JJ said at [67] that McHugh J's dissenting judgment in Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1995) 183 CLR 273, in which he said that administrative decision makers must accord parties procedural fairness including bringing to that party's attention the issue on which the decision is likely to turn so as to allow the party to deal with it, meant that there was no need for any doctrine of legitimate expectation and should be accepted as representing the law of Australia. See also Hayne J at [121] and Callinan J at [148]. For the reasons given by Finn J in Rush v Commissioner of Police [2006] FCA 12 , the doctrine of substantive legitimate expectation is not presently part of Australian law. I need, therefore, say no more about the 'other way' of putting the estoppel argument. 142 In the applicant's outline, it was contended: '27. The Applicant assumed that she would be entitled to re-enter Australia as long as she did so within three years of her previous visit, and be entitled to stay indefinitely. In the circumstances, it is reasonable to infer that the Applicant held such an assumption: Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1 at 30-32 [90] - [92] , 47 [145]. 28. This assumed state of affairs was based upon the conduct or representation of the First Respondent (or her agents) in 1997 and onwards. If the assumption is not fulfilled, the Applicant will suffer detriment.' 143 The argument needs to be considered at two snapshots in time. If the applicant assumed that she would be entitled to re-enter Australia, as long as she did so within three years of her previous visit and be entitled to stay indefinitely, as at 7 April 1994 she must have known that that entitlement would cease on that day. It follows that she must have known prior to 1 September 1994 that she was no longer entitled to a Return Endorsement as at 1 September 1994. 144 The estoppel which is sought to be erected by the applicant is an estoppel that did not arise until 12 September 1997, after she had lost an entitlement to a Return Endorsement and therefore a Transitional (Permanent) visa.
Case: Rush v Commissioner of Police [2006] FCA 12
Outcome: cited
That concession, I think, also has been rightly made. In Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1, McHugh and Gummow JJ said at [67] that McHugh J's dissenting judgment in Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1995) 183 CLR 273, in which he said that administrative decision makers must accord parties procedural fairness including bringing to that party's attention the issue on which the decision is likely to turn so as to allow the party to deal with it, meant that there was no need for any doctrine of legitimate expectation and should be accepted as representing the law of Australia. See also Hayne J at [121] and Callinan J at [148]. For the reasons given by Finn J in Rush v Commissioner of Police [2006] FCA 12 , the doctrine of substantive legitimate expectation is not presently part of Australian law. I need, therefore, say no more about the 'other way' of putting the estoppel argument.
Case: The Commonwealth of Australia v Verwayen [1990] HCA 39 ; (1990) 170 CLR 394
Outcome: cited
'Waiver' is an imprecise term: The Commonwealth of Australia v Verwayen [1990] HCA 39 ; (1990) 170 CLR 394 (' Verwayen ') per Mason CJ at 406 and Dawson J at 451-452. It has been described as a vague term used in many senses: Smyth &amp; Co v Bailey &amp; Co [1940] 3 All ER 60 per Lord Wright at 70. It may be that the term is now used only to describe two legal concepts; election and estoppel, although there is support for a broader scope: see Toohey J in Verwayen at 468 and McHugh J at 491. 131 It was, however, conceded that if waiver was to apply at all it could only apply where there had been a deliberate decision by the decision maker to ignore the condition attaching to the Return Endorsement. Whatever the concept of waiver, that concession was rightly made: Craine v Colonial Mutual Fire Insurance Co Ltd [1920] HCA 64 ; (1920) 28 CLR 305; Verwayen at 406, 473, 485 and 498.
Case: Smyth &amp; Co v Bailey &amp; Co [1940] 3 All ER 60
Outcome: cited
'Waiver' is an imprecise term: The Commonwealth of Australia v Verwayen [1990] HCA 39 ; (1990) 170 CLR 394 (' Verwayen ') per Mason CJ at 406 and Dawson J at 451-452. It has been described as a vague term used in many senses: Smyth &amp; Co v Bailey &amp; Co [1940] 3 All ER 60 per Lord Wright at 70. It may be that the term is now used only to describe two legal concepts; election and estoppel, although there is support for a broader scope: see Toohey J in Verwayen at 468 and McHugh J at 491.
Case: Craine v Colonial Mutual Fire Insurance Co Ltd [1920] HCA 64 ; (1920) 28 CLR 305
Outcome: cited
It was, however, conceded that if waiver was to apply at all it could only apply where there had been a deliberate decision by the decision maker to ignore the condition attaching to the Return Endorsement. Whatever the concept of waiver, that concession was rightly made: Craine v Colonial Mutual Fire Insurance Co Ltd [1920] HCA 64 ; (1920) 28 CLR 305; Verwayen at 406, 473, 485 and 498.
Case: Minister for Immigration &amp; Ethnic Affairs v Polat (1995) 57 FCR 98
Outcome: cited
In Minister for Immigration &amp; Ethnic Affairs v Polat (1995) 57 FCR 98, Davies and Branson JJ said at 107: 'Estoppel will not operate so as to contradict a statute or to extend the authority of a decision-maker beyond that given by the statute.' 153 In 1984 he was issued with an Australian passport by the Australian Embassy in Belgrade and in 1990 he was issued with a second Australian passport by the same Embassy. He entered Australia twice in 1991 and 1992 on that second passport. On each occasion his passport was stamped with an arrival stamp. When he later applied to sponsor his Thai born wife and her child for permanent resident status when he was told that he was not, and never had been, an Australian citizen. He argued that he was entitled to the issue of an Australian passport and that the Minister was estopped so as to compel the Minister to grant him Australian citizenship. Burchett J said at 308-309: 'Once this conclusion is reached, I do not think it is possible to find in the circumstances of the issue of the two passports to Mr Petrovski any foothold from estoppel that would control the exercise of the statutory powers of the Minister, so as to compel him to grant Australian citizenship to the respondent. The attempt to argue such an estoppel was met by a phalanx of cases that cannot be breached: Wyong Shire Council v Associated Minerals Consolidated Ltd [1972] 1 NSWLR 114 at 142 per Hope J; Southend-On-Sea Corp v Hodgson (Wickford) Ltd [1962] 1 QB 416; Rubrico v Minister for Immigration &amp; Ethnic Affairs (1989) 23 FCR 208 at 229; Roberts v Repatriation Commission (1992) 39 FCR 420 at 425; Minister for Immigration, Local Government &amp; Ethnic Affairs v Kurtovic (1990) 21 FCR 193; Minister for Immigration &amp; Ethnic Affairs v Polat (1995) 57 FCR 98 at 105, 107; Formosa v Secretary, Department of Social Security (1988) 46 FCR 117.' See also Tamberlin J at 325 et seq.
Case: Minister for Immigration &amp; Ethnic Affairs v Petrovski (1997) 73 FCR 303
Outcome: cited
In Minister for Immigration &amp; Ethnic Affairs v Petrovski (1997) 73 FCR 303, the respondent was born in Australia to a father who was then a consular officer in Australia of the Republic of Yugoslavia. He was born in 1969. In 1971 he returned to Yugoslavia.
Case: Allphones Retail Pty Ltd v Hoy Mobile Pty Ltd [2009] FCAFC 85
Outcome: related
2006, Hoy Mobile Pty Limited ( Hoy Mobile ) commenced proceedings in this Court against Allphones. Those proceedings ( the Hoy Mobile proceedings ) were heard in February and March 2008 by Rares J. His Honour delivered reasons for judgment on 30 May 2008 ( Hoy Mobile Pty Limited v Allphones Retail Pty Ltd (No 2) (2008) ATPR 42-240). Allphones appealed from that judgment. On appeal, Allphones was partly successful ( Allphones Retail Pty Ltd v Hoy Mobile Pty Ltd [2009] FCAFC 85).
Case: Byrne v Australian Airlines Ltd [1995] HCA 24 ; (1995) 185 CLR 410
Outcome: cited
order for such a private right to exist, the relevant legislation must be found to reflect a legislative intention to create a private right for breach ( Byrne v Australian Airlines Ltd [1995] HCA 24 ; (1995) 185 CLR 410 at 424 425). The question is one of construction of the statute. As submitted by Allphones, it is the statute that creates the right and the common law that supplies the remedy ( Darling Island Stevedoring and Lighterage Co Ltd v Long [1957] HCA 26 ; (1957) 97 CLR 36 at 52). It is by no means clear or beyond argument that the Act creates a private right in Allphones to sue for damages and other relief in the event that an ACCC official discloses information in breach of s 155AAA. There is much to be said for the view that no such right is created (see, in particular, the observations of McHugh and Gummow JJ in Byrne [1995] HCA 24 ; 185 CLR 410 at 458).
Case: Darling Island Stevedoring and Lighterage Co Ltd v Long [1957] HCA 26 ; (1957) 97 CLR 36
Outcome: cited
order for such a private right to exist, the relevant legislation must be found to reflect a legislative intention to create a private right for breach ( Byrne v Australian Airlines Ltd [1995] HCA 24 ; (1995) 185 CLR 410 at 424 425). The question is one of construction of the statute. As submitted by Allphones, it is the statute that creates the right and the common law that supplies the remedy ( Darling Island Stevedoring and Lighterage Co Ltd v Long [1957] HCA 26 ; (1957) 97 CLR 36 at 52).
Case: Glencore International AG v Selwyn Mines Ltd [2005] FCA 801 ; (2005) 223 ALR 238
Outcome: cited
submissions in support of the discovery order which it claims were developed in detail as follows: (a) The correct principles to be applied in the present application are: (i) First, the applicant must show that, after having made reasonable inquiries, it is unable to ascertain the description of a person sufficiently for the purpose of commencing a proceeding against that person. (ii) Second, the applicant must show that 'some person' has or is likely to have knowledge of facts, or the possession of documents, tending to assist in identifying the prospective respondent. (iii) Third, the applicant is not required to demonstrate the existence of a prima facie case against the prospective respondent. However, relief of this kind is nevertheless unavailable to a person who intends to commence 'merely speculative proceedings'. This criterion requires the applicant to demonstrate a reasonable objective basis for the proposed claim ( Hooper v Kirella Pty Ltd [1999] FCA 1584 ; (1999) 96 FCR 1 ; Glencore International AG v Selwyn Mines Ltd [2005] FCA 801 ; (2005) 223 ALR 238 at [16] , [91], [96], [105]). (iv) Fourth, an applicant under a rule in the form of O 15A r 3 of the Federal Court Rules must show that the order sought is necessary in the interests of justice. That is, the applicant must show that "the making of the order is necessary to provide him with an effective remedy in respect of the actionable wrong of which be complains". (b) Allphones intends to sue the ACCC itself and the official who passed on the ACCC's Written Submission to Birch Partners and to Chew + Matthews for: (i) Breach of statutory duty. The alleged breach is a breach of s 155AAA(1) of the Act; and (ii) Breach of an equitable duty of confidence said to be owed by both the ACCC and the relevant ACCC official to Allphones in respect of Allphones' confidential information (especially its confidential financial information). (c) Objectively speaking, there is a reasonable basis for each of the foreshadowed causes of action. The ACCC knows the identity of the relevant ACCC official and has declined to reveal that identity. The disclosure of the identity of that person is in the interests of justice because it is necessary in order to provide Allphones with an effective remedy for the actionable wrongs of which it complains.
Case: Hoy Mobile Pty Limited v Allphones Retail Pty Ltd (No 2) (2008) ATPR 42-240
Outcome: cited
2006, Hoy Mobile Pty Limited ( Hoy Mobile ) commenced proceedings in this Court against Allphones. Those proceedings ( the Hoy Mobile proceedings ) were heard in February and March 2008 by Rares J. His Honour delivered reasons for judgment on 30 May 2008 ( Hoy Mobile Pty Limited v Allphones Retail Pty Ltd (No 2) (2008) ATPR 42-240). Allphones appealed from that judgment. On appeal, Allphones was partly successful ( Allphones Retail Pty Ltd v Hoy Mobile Pty Ltd [2009] FCAFC 85).