mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Cronulla Sutherland Leagues Club Limited v Commissioner of Taxation (1990) 23 FCR 82
Outcome: considered
A more detailed and complete analysis of their Honours' respective reasons is given by Lockhart J presiding on a Full Court of this Court in Cronulla Sutherland Leagues Club Limited v Commissioner of Taxation (1990) 23 FCR 82 at 90 93; see too, Beaumont J at 111 113 and 117, and Foster J at 123. 201 See, also, Cronulla Sutherland Leagues Club 23 FCR at 117 per Beaumont J. 202 In the Surgeons' Case , Starke J at 448 indicated that it was permissible to look outside the objects of the entity to its activities in determining whether the qualification for exemption was met, at least where the memorandum did not make it clear which objects of a mixed character are its main or dominating characteristics. 203 Williams J went further when, at 452, he observed: '[I]n order to determine what is the main or dominant purpose of the College, it is a mistake to examine the objects contained in the memorandum in ... [a] disjunctive fashion. They should be examined in conjunction with one another and in the light of the circumstances in which the College was formed and of the manner in which the College is fulfilling the purposes for which it was incorporated.' 204 In other words, one can look to the circumstances in which the subject entity was formed and the manner in which it is fulfilling the purposes for which it was incorporated, but there remains the issue of whether one can examine the subjective motives and intentions of the promoters of the subject entity and its directors for the purpose of ascertaining if the statutory exemption from income tax operates. In Cronulla Sutherland Leagues Club 23 FCR at 98, Lockhart J referred to this issue by reference to the decision of the High Court in Brookton Co-operative Society Ltd v Commissioner of Taxation (Cth) [1981] HCA 28 ; (1981) 147 CLR 441 where the ultimate issue was whether the taxpayer was a co-operative company within the meaning of s 117 of the ITAA 1936. One of the elements of the statutory definition was that the company 'is established for the purpose of carrying on any business having as its primary object or objects one or more of the following ... [objects]'.
Case: Federal Commissioner of Taxation v Word Investments Ltd (2007) 164 FCR 194 
Outcome: considered
While the ultimate issue in the present case is the same as it was in the Surgeons' Case , the real or substantive underlying issues are not. In the Surgeons' Case it was, according to Starke J at 447, '... rightly conceded, that the College was an institution'. And in Federal Commissioner of Taxation v Word Investments Ltd (2007) 164 FCR 194 , Allsop J noted at [8] and [9] that there was no dispute that 'Word' was an institution; the only question was whether it was a 'charitable institution'. In the present case, there is a real issue as to whether ATTORI and AARI are institutions. As Gibbs CJ observed in Stratton v Simpson [1970] HCA 45 ; (1970) 125 CLR 138 at 158: 'Although its meaning must depend on its context, [an institution] would not ordinarily connote a mere trust.' 199 Nevertheless, it is unnecessary to break the task up into component parts: Is it an institution? And if so, is it a scientific institution? Rather, as Allsop J said in Word Investments at [14]: 'The relevant task, as stated in the Surgeons' Case [1943] HCA 34 ; 68 CLR 436 , is to assess the true character or nature of the entity by reference to its objects, purposes and activities. It is an integrated, holistic inquiry directed to whether a body of facts and circumstances satisfies a legal category or conception.'
Case: Pamas Foundation (Inc) v Commissioner of Taxation [1992] FCA 154 ; (1992) 35 FCR 117
Outcome: referred to
The mere fact that ATTORI and AARI are companies limited by guarantee does not make them institutions; any more than the fact that they call themselves an 'Institute': see Pamas Foundation (Inc) v Commissioner of Taxation [1992] FCA 154 ; (1992) 35 FCR 117 at 125 per Beaumont and Lee JJ. As their Honours there said in the immediately preceding sentence: 'The context in which the expression "religious institution" appears includes the juxtaposed term "public benevolent institution" which tends to suggest that the word "institution" is to be given a meaning greater than a structure controlled and operated by family members and friends.'
Case: Royal Australasian College of Surgeons v Federal Commissioner of Taxation [1943] HCA 34 ; (1943) 68 CLR 436
Outcome: applied
The relevant facts are not in dispute, although there is an issue as to what is relevant and what is not. It is common ground that facts going to: '[W]hat is the true nature and the objects and activities of the [entity]', to use the words of the Lord President (Clyde) in The Commissioner of Inland Revenue v The Aberdeen Medico-Chirurgical Society (1931) 16 TC 237 at 249 quoted with approval by Latham CJ in Royal Australasian College of Surgeons v Federal Commissioner of Taxation ('the Surgeons' Case ') [1943] HCA 34 ; (1943) 68 CLR 436 at 444, are relevant. But the Commissioner says that facts going to the commercial imperatives that drove both the entity's incorporation and its activities, as well as the arrangements through which, or the manner in which, it carries on its activities, and the lack of public availability or utility of the results of those activities, reflect on the 'true nature' of ATTORI and AARI and their activities and for that reason, are also relevant. 199 Nevertheless, it is unnecessary to break the task up into component parts: Is it an institution? And if so, is it a scientific institution? Rather, as Allsop J said in Word Investments at [14]: 'The relevant task, as stated in the Surgeons' Case [1943] HCA 34 ; 68 CLR 436 , is to assess the true character or nature of the entity by reference to its objects, purposes and activities. It is an integrated, holistic inquiry directed to whether a body of facts and circumstances satisfies a legal category or conception.'
Case: SSAU Nominees Pty Ltd v Federal Commissioner of Taxation (1985) 16 ATR 992
Outcome: considered
The diversity of opinion in Brookton had previously been commented on by Ormiston J of the Supreme Court of Victoria in SSAU Nominees Pty Ltd v Federal Commissioner of Taxation (1985) 16 ATR 992 at 1011: 'Here it is clear that all members of the court on each occasion [Brookton and Ruffy] held the view that the primary object or objects of the appellant's business could not be determined solely, or even initially, by reference to its memorandum of association, and that evidence of its history, setting up and activities, had to be examined. In this instance Mason J (at 453), with the concurrence of Wilson J, thought that the intentions, if not the motives, of the promoters could be looked at, although Aickin J strongly disagreed: at 463.' 214 SSAU Nominees involved a claim for a sales tax exemption for 'goods for use ... by a society, institution or organisation established and carried on exclusively or principally for the promotion of the interests of a university or school conducted by an organisation not carried on for the profit of an individual'. Some 17 years later, Mandie J of the Supreme Court of Victoria said in Capital Club Pty Ltd v Commissioner of State Revenue (2007) 66 ATR 606 at [41]: 'Ormiston J referred to Ruffy and Brookton noting that the High Court held the view that the primary object or objects of the company's business could not be determined solely or even initially by reference to its Memorandum of Association and that evidence of its history, setting up and activities had to be examined. The case otherwise turned on its own facts and the particular legislation.'
Case: Stratton v Simpson [1970] HCA 45 ; (1970) 125 CLR 138
Outcome: referred to
While the ultimate issue in the present case is the same as it was in the Surgeons' Case , the real or substantive underlying issues are not. In the Surgeons' Case it was, according to Starke J at 447, '... rightly conceded, that the College was an institution'. And in Federal Commissioner of Taxation v Word Investments Ltd (2007) 164 FCR 194 , Allsop J noted at [8] and [9] that there was no dispute that 'Word' was an institution; the only question was whether it was a 'charitable institution'. In the present case, there is a real issue as to whether ATTORI and AARI are institutions. As Gibbs CJ observed in Stratton v Simpson [1970] HCA 45 ; (1970) 125 CLR 138 at 158: 'Although its meaning must depend on its context, [an institution] would not ordinarily connote a mere trust.' 198 As Gibbs CJ further observed in Stratton v Simpson 125 CLR at 158: 'In its ordinary sense "institution" means "an establishment, organization, or association, instituted for the promotion of some object, especially one of public utility, religious, charitable, educational etc." (The Shorter Oxford English Dictionary).' This suggests to me that before an entity can be a 'scientific institution', it must be established for an object or objects of public utility. 205 Gibbs CJ did not find it necessary to decide whether, in considering whether a company came within s 117(1) , the subjective motives and intentions of the promoters should be taken into account, although he said that it was clear that the court must consider the activities that the company actually carried on (at 445).
Case: The Commissioner of Inland Revenue v The Aberdeen Medico-Chirurgical Society (1931) 16 TC 237 
Outcome: referred to
The relevant facts are not in dispute, although there is an issue as to what is relevant and what is not. It is common ground that facts going to: '[W]hat is the true nature and the objects and activities of the [entity]', to use the words of the Lord President (Clyde) in The Commissioner of Inland Revenue v The Aberdeen Medico-Chirurgical Society (1931) 16 TC 237 at 249 quoted with approval by Latham CJ in Royal Australasian College of Surgeons v Federal Commissioner of Taxation ('the Surgeons' Case ') [1943] HCA 34 ; (1943) 68 CLR 436 at 444, are relevant. But the Commissioner says that facts going to the commercial imperatives that drove both the entity's incorporation and its activities, as well as the arrangements through which, or the manner in which, it carries on its activities, and the lack of public availability or utility of the results of those activities, reflect on the 'true nature' of ATTORI and AARI and their activities and for that reason, are also relevant.
Case: The Incorporated Council of Law Reporting of the State of Queensland v Federal Commissioner of Taxation [1971] HCA 44 ; (1971) 125 CLR 659 
Outcome: cited
Importantly, proceeds from the 'commercialisation' of the Research Results were not to flow back to ATTORI to be re-invested for further scientific research in accordance with ATTORI's stated 'objects'. Rather, ATTORI was providing a service, as a part of a commercial scheme, to Participants and the Manager, who would be entitled to the proceeds of sale of the fruits of the research: cl 5. In other words, the proceeds derived from the fruits of ATTORI's research were intended 'to be diverted into the pockets of individuals': The Incorporated Council of Law Reporting of the State of Queensland v Federal Commissioner of Taxation [1971] HCA 44 ; (1971) 125 CLR 659 at 672. Other Budplans for which ATTORI was appointed to conduct research in the relevant years 54 As well as the Budplan Personal Syndicate, ATTORI was also appointed to conduct research in the following Budplans: (a) Personal Budplan No. 2 prospectus dated 3 June 1996 (b) Personal Budplan No. 3 prospectus dated 6 November 1996 (c) Personal Budplan No. 4 prospectus dated 16 April 1997 (d) Company Budplan No. 1 prospectus dated 8 May 1996 (e) Company Budplan No. 2 prospectus dated 3 June 1996 (f) Company Budplan No. 3 prospectus dated 26 May 1997 (g) Melaleuca Biotics Budplan project summary dated June 1996 55 It is apparent that a generic set of documents were used in relation to all of the abovementioned Budplans that were similar in nature to the Budplan Personal Syndicate Deed (although for these other Budplans there was a separate Management Agreement and Research Agreement rather than these being encompassed in one deed as was the case for the Budplan Personal Syndicate).
Case: D&eacute;cor Corp Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397
Outcome: referred to
discretion the Court has in respect of an application for leave to appeal is a wide one, but is ordinarily informed by two considerations: (1) Whether in all the circumstances the decision is attended by sufficient doubt to warrant it being reconsidered by the Full Court; and (2) whether substantial injustice would result if leave were refused, supposing the decision is wrong. See Decor Corp Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397. The same considerations apply where the application for leave is heard by a single judge.
Case: Mastronardi v State of New South Wales [2007] NSWCA 54
Outcome: referred to
relation to both matters, it is claimed by the applicant that his Honour's reasoning and conclusions were vitiated by the excessive delay of 14 months between the conclusion of the hearing and the giving of judgment. This was not pressed on the hearing of the application for leave, correctly in my view, because it is well-established that delay will not constitute a ground of appeal in its own right in civil proceedings, but the manner in which it can affect appellate review can vary from case to case: NAIS v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] HCA 77 ; (2005) 228 CLR 470 and Mastronardi v State of New South Wales [2007] NSWCA 54 at [63] . The highest it was put was by reference to the observations of Kirby J in NAIS at [87] and [88] that because extensive delay may sometimes tempt (or appear to tempt) the decision-maker to take the path of easy resolution, it is incumbent on a court, reviewing the impugned decision in an appeal or on judicial review, to approach its task with vigilance.
Case: NAIS v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] HCA 77 ; (2005) 228 CLR 470
Outcome: referred to
relation to both matters, it is claimed by the applicant that his Honour's reasoning and conclusions were vitiated by the excessive delay of 14 months between the conclusion of the hearing and the giving of judgment. This was not pressed on the hearing of the application for leave, correctly in my view, because it is well-established that delay will not constitute a ground of appeal in its own right in civil proceedings, but the manner in which it can affect appellate review can vary from case to case: NAIS v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] HCA 77 ; (2005) 228 CLR 470 and Mastronardi v State of New South Wales [2007] NSWCA 54 at [63] . The highest it was put was by reference to the observations of Kirby J in NAIS at [87] and [88] that because extensive delay may sometimes tempt (or appear to tempt) the decision-maker to take the path of easy resolution, it is incumbent on a court, reviewing the impugned decision in an appeal or on judicial review, to approach its task with vigilance.
Case: Ogawa v University of Melbourne (No 2) [2004] FCA 1275
Outcome: referred to
is for the applicant seeking leave to appeal to satisfy the court as to both these matters: Ogawa v University of Melbourne (No 2) [2004] FCA 1275. The considerations referred to in [20] above are not exhaustive. Whilst leave to appeal an interlocutory decision on a point of practice or procedure, rather than substantive rights, might less readily be granted, even a decision affecting the latter may be refused where the appeal would achieve no useful purpose. Refusal to Allow Amendment of Application The Federal Magistrate dealt with this matter at [88] [115] of his reasons. The applicant sought to amend his application in the manner indicated below: Describe the discrimination you are complaining of In early 2005 I purchased a return air ticket from Qantas to travel from Sydney to Mumbai, India and return. I commenced my journey on 23 March 2005 when I left Sydney and returned to Australia on a Qantas flight leaving Mumbai, India on 8 June 2005. The Respondent has discriminated against me in that it refused to its Conditions of Carriage failed to reasonably accommodate carriage of my mobility aids and other essential equipment, including medications and sleep machine without the payment of excess baggage charges. In doing so the Respondent has unlawfully discriminated against me in the provision of goods and services and access to premises on the grounds of my disability and has contravened the Disability Standards for Accessible Public Transport 2002. State all sections of the Act that are relevant to this claim Sections 4 , 5 , 6 , 7 , 11 , 12 , 23 , and 24 , 31 and 32 of the Disability Discrimination Act, 1992
Case: Queensland v Forest [2008] FCAFC 96 ; (2008) 168 FCR 532
Outcome: considered
applicant submitted that his Honour's conclusion, that ss 23 and 24 of the DDA are mutually exclusive and that the applicant could not rely on essentially the same conduct in a claim under two mutually exclusive sections, was an error of law. It was submitted that the provisions can and do operate mutually without excluding each other and reference was made to the decision of a Full Court of this Court in Queensland v Forest [2008] FCAFC 96 ; (2008) 168 FCR 532. Having closely read the reasons of the Full Court, both those of the majority (Spender and Emmett JJ) and the minority (Black CJ), I am not persuaded that this case is authority for that proposition. But even if these two provisions are not mutually exclusive and his Honour was in error in concluding that they were, in my view this would not vitiate his Honour's ultimate conclusion that the proposed amendments to the application are outside the limits of s 46PO(3) of the then HREOC Act. In my view, his Honour's refusal to allow amendment of the application in the terms proposed by the applicant, is not attended by sufficient doubt to warrant it being re-considered by this Court. Summary Dismissal The Federal Magistrate dealt with this matter at [116] to [137] of his reasons. His Honour paraphrased the issue, correctly in my view, as being whether the applicant had a reasonable prospect of successfully prosecuting his application. On the basis of the dismissal of the application to amend, his Honour observed, again correctly in my view, that the application to be considered was the original application filed on 8 June 2007: at [121] of his reasons.
Case: Frith v Gold Coast Mineral Springs Pty Ltd [1983] FCA 28 ; (1983) 65 FLR 213
Outcome: referred to
orders sought in this case are orders refusing to enforce (in the sense of recognising for the purposes of the respondent' damages claim) provisions in the relevant property contracts. The orders sought seem to be similar to orders varying provisions of contracts and that is an order which could be made under s 87(1): see s 87(2)(b). The orders sought, or permissible variations of them, may, in the alternative, or in addition, fall within other paragraphs in s 87(2) (see, for example, s 87(2)(ba)). An order varying the contract price under a contract may be made under the section: Frith v Gold Coast Mineral Springs Pty Ltd [1983] FCA 28 ; (1983) 65 FLR 213 at 241 per Fitzgerald J. It may be likely that Mr Humphries' case as a whole will stand or fall on his claim for rescission. However, having regard to the wide terms of s 87 and the authorities, it cannot be said that his alternative claim for relief is bound to fail. In other words, it is possible that Mr Humphries will succeed on his claims under the TPA and yet the Court will award the alternative relief claimed by him. In those circumstances, the respondent's challenge must fail. Paragraph 56 of Ms Humphries' Statement of Claim The respondents seek an order that paragraph 56 of Ms Humphries' Statement of Claim be struck out on the ground that it is embarrassing and has a tendency to cause prejudice and delay. Paragraph 56 is in the following terms: "Peter Humphries passed on to the applicant the effect of what was being conveyed to him as described in this pleading prior to the applicant entering into the contracts."
Case: General Steel Industries Inc v Commissioner for Railways (NSW) and Others [1964] HCA 69 ; (1964) 112 CLR 125
Outcome: referred to
respondents claim that this alternative claim is not maintainable as a matter of law and should be struck out. They rely on the Court's power in O 11 r 16 of the Federal Court Rules to strike out part of a pleading which discloses no reasonable cause of action. In essence, their argument is that there are no circumstances in which Mr Humphries' claim for rescission would fail and yet his claim for alternative relief would succeed. In my opinion, Mr Humphries' claim for alternative relief is not unarguable in the sense referred to in the authorities ( General Steel Industries Inc v Commissioner for Railways (NSW) and Others [1964] HCA 69 ; (1964) 112 CLR 125) and the respondents' application in relation to Mr Humphries' claim for alternative relief must be refused. As I have said, Mr Humphries claims a right to rescind the property contracts, or an order under s 87 of the TPA that the property contracts have been rescinded, or are rescinded. He then makes the following allegations, in the alternative: "106.6 Alternatively an order refusing to enforce the Contracts against the Applicant or alternatively that the Respondents be precluded from maintaining or acting upon the contract price being more than the market value or the settlement date being before the date on which allotments in Stage 3 commence to be sold or claiming that the Applicant is in default or is liable to pay or forfeit any monies to them. 106.7 In the alternative to paragraph 106.3 above, an order that the First Respondent and the Second Respondent be permanently restrained from calling upon the Bank Guarantees." The claim for relief in paragraph 106.3 is for a declaration that the applicant is entitled to the destruction or return of the bank guarantees. The claims for relief in paragraphs 106.6 and 106.7 are based on earlier paragraphs which are challenged. Paragraph 82 is in the following terms: "82 Alternatively, pursuant to section 87 , an order should be made refusing to enforce the Property Contracts and the second Marina Berth Agreement against the Applicant or alternatively that Newport Quays 2 be precluded from: 82.1 maintaining or acting upon the contract price being more than the true market value of the Properties being $805,000 for terrace No 44 and $315,000 for sky home No 607; 82.2 maintaining or acting upon the contract price being more than the true market value of the second Marina Berth being $60,000; 82.3 acting under clause 7.1 to claim that the Applicant is in default under the Property Contracts or the second Marina Berth Agreement or is liable to pay or forfeit any monies to Newport Quays."