mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Giumelli v Giumelli [1999] HCA 10 ; (1999) 196 CLR 101
Outcome: referred to
The task of the Tribunal would have been to examine the extent to which a court of equity would require Warwick to compensate his mother, as a term of being permitted to assert beneficial ownership of his shares. That is to say, it would be necessary to enquire whether Warwick's conduct, in receiving $400,000 in 1988 and thereafter having no involvement with the Company, gave rise to an estoppel against his asserting beneficial ownership of the shares. It is only if a constructive trust is the only way in which equity can be done, as between Warwick and his mother, that a court would impose such a remedy. The first step, however, would be to determine whether there was an appropriate equitable remedy that fell short of the imposition of a trust (see Giumelli v Giumelli [1999] HCA 10 ; (1999) 196 CLR 101 at [10] ). 75 The difficulty with the Tribunal's reasons is that it simply did not direct attention to findings necessary to establish that a remedy of constructive trust was appropriate in the circumstances. Although these matters were not the subject of any submission to the Tribunal on the hearing of this proceeding, counsel for Warwick suggested that Mrs Wall acted to her detriment in: &#8226; lending money, interest free, to the Company, &#8226; refraining from applying for an aged pension under the Entitlements Act. However, the Tribunal did not attempt to quantify any such detriment. 76 In addition, it would be necessary to examine the extent to which Mrs Wall obtained a benefit by reason of the tax losses of the Company being carried forward so as to be set off against income derived from investments made with money lent, interest free, by her to the Company. A further matter for enquiry may be the extent to which Fontas, a wholly owned subsidiary of the Company, forwent its claim against Warwick for the loan of $1,080,000 made to him in 1988. Of course, that may not have been a detriment to Mrs Wall, unless it is assumed that she was the beneficial owner of the shares.
Case: Repatriation Commission v Tsourounakis [2004] FCAFC 332
Outcome: referred to
For Mrs Wall to acquire an interest in Warwick's shares, by the operation of the doctrine of proprietary estoppel, it would be necessary to establish the following matters: (a) an expectation or belief by Mrs Wall, created and encouraged by Warwick, that Mrs Wall was to be regarded as the beneficial owner of the shares in the Company held by Warwick, (b) knowledge by Warwick of Mrs Wall's expectation or belief, (c) some conduct on the part of Mrs Wall, to her detriment, in reliance upon that expectation or belief, encouraged by some conduct of Warwick's or lack of conduct on his part. In those circumstances, it may be unconscionable for Warwick to rely on his ownership of the shares to defeat his mother's expectation and belief (see Dinyarrak Investments Pty Ltd v Amoco Australia Ltd (1982) 45 ALR 214 and Repatriation Commission v Tsourounakis [2004] FCAFC 332).
Case: Grollo Nominees Pty Ltd v FC of T (1997) 73 FCR 452
Outcome: considered
It is difficult to understand the focus of the Commissioner on s 14ZS of the Administration Act in the present case when neither the taxpayer's objection nor, in consequence, the Commissioner's objection decision, referred in any way to the remission of additional tax imposed by the amended notice of assessment. In support of that focus I was referred to cases which, correctly in my view, hold that the words 'relates to' are wide words signifying some connection between two subject matters with the connection or association signified by the words being either direct or indirect, substantial or real. However, in the present case, there is absolutely no connection or association between the objection decision and the remission of additional tax payable under s 223 of the ITAA 36. It may be, as the Full court of this Court observed in Grollo Nominees Pty Ltd v FC of T (1997) 73 FCR 452 at 523, 'that it would seem an odd thing if there were ... an appeal to the Tribunal on the question of the amount of income tax payable which did not carry with it the right to question any consequential imposition of additional tax', but this is such a case, in the absence of the Tribunal making an order pursuant to s 14ZZK of the Administration Act allowing the taxpayer to include the additional tax issue as an additional ground of objection. In short, the objection decision in the present case is not an ineligible income tax remission decision under s 14ZS of the Administration Act and, insofar as the Commissioner's appeal is grounded on this issue, it must fail. 16 In his written submissions in reply, the Commissioner refocussed his argument, to where it always should have been focussed, on subs 43(1) of the AAT Act. 17 Subsection 43(1) of the AAT Act is in the following terms: 'For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing: (a) affirming the decision under review; (b) varying the decision under review; or (c) setting aside the decision under review and: (i) making a decision in substitution for the decision so set aside; or (ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.'
Case: Commonwealth Bank Officers Superannuation Corporation Pty Ltd v Commissioner of Taxation [2005] FCAFC 244 (30 November 2005, unreported)
Outcome: applied
If this be right, then it is difficult to see why subs 43(1) of the AAT Act did not give the Tribunal jurisdiction to make that part of the decision against which this appeal is brought, namely, remission of the penalty matter to the Commissioner with the direction that the assessment for the year ended 30 June 1988 be amended by remitting additional tax in full. Subsection 43(1) of the AAT Act has been construed as not requiring the power or discretion to be exercised by the Tribunal as being necessarily involved in the making of the decision under review: Secretary, Department of Social Security v Hodgson supra at 39 40. In Commonwealth Bank Officers Superannuation Corporation Pty Ltd v Commissioner of Taxation [2005] FCAFC 244 (30 November 2005, unreported) the Full Court of this Court observed at [29] [30]: '...Section 43 empowers the Tribunal to exercise all the powers and discretions conferred upon the original decision-maker, provided it does so for the purpose of reviewing a decision. Provided the necessary purpose is present, the power conferred upon the Tribunal is not otherwise limited. It is neither necessary nor permissible to put a gloss upon s 43 that would permit the Tribunal to exercise the discretion maker's powers and discretions only when those powers or discretions are necessarily interdependent with the decision under review, or where the power or discretion to be exercised by the Tribunal is necessarily involved in the making of the decision under review see Secretary, Department of Social Security v Hodgson [supra]. Thus, so long as the exercise of powers and discretions by the Tribunal is for the purpose of reviewing a decision, all of the powers and discretions conferred by any relevant enactment on the decision-maker who made the decision, can be exercised by the Tribunal' (Emphasis)
Case: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321
Outcome: applied
The distinction between issues of fact and law was comprehensively addressed by Mason CJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 ( Bond ) where his Honour said at 355-6: 'The question whether there is any evidence of a particular fact is a question of law ... Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law ... This is because, before the inference is drawn, there is the preliminary question whether the evidence reasonably admits of different conclusions ... So, in the context of judicial review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law...' (citations omitted.) 28 His Honour observed, however, that the authorities indicate that it is not an error of law to make a wrong finding of fact and at 356 expressed the following view, with which Brennan J (at 365) and Toohey &amp; Gaudron JJ, (at 387) generally agreed: 'Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference in other words, the particular inference is reasonably open even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.' (emphasis added.) 29 Having referred to a line of English cases that support a 'no sufficient evidence' test in the context of judicial review of findings of fact and a further line of cases that suggested that inferences of fact were reviewable where they could not be reasonably drawn from the primary facts, his Honour added at 359-60: 'a finding of fact will then be reviewable on the ground that there is no probative evidence to support it and an inference will be reviewable on the ground that it was not reasonably open on the facts, which amounts to the same thing .' (emphasis added)
Case: Corlette v Mackenzie (1996) 62 FCR 597
Outcome: referred to
The Tribunal's conclusion as to 'serious hardship' does not conclude the matter. The decision to release the respondent from his tax obligations is clearly discretionary. The applicant submitted that the Tribunal either failed to exercise this discretion, or failed to exercise this discretion properly. The existence of the Tribunal's discretion is not in doubt. As Wilcox J observed in Corlette v Mackenzie (1996) 62 FCR 597 at 598: 'It would be extremely odd if a taxpayer who was the author of his or her misfortunes, through imprudent or extravagant expenditure, was entitled, as a matter of right, to a release of unpaid tax.'
Case: Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40 ; (1986) 162 CLR 24
Outcome: applied
The alleged errors set out in (b)(iii) and (iv) in paragraph [12] of these reasons essentially raise the same issues and can be dealt with together. The applicant says that a finding of serious hardship was not open to the Tribunal on the evidence before it and that the decision was totally unreasonable in the sense referred to by Lord Greene MR in Associated Provincial Picture Houses Limited v Wednesbury Corporation [1947] EWCA Civ 1 ; [1948] 1 KB 223 at 229-230. The principle on which the applicant relies was elaborated by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40 ; (1986) 162 CLR 24 at 41-42 where his Honour said: 'It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power ... I say "generally" because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is "manifestly unreasonable". ... However, in its application, there has been considerable diversity in the readiness with which courts have found the test to be satisfied. ... But guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion. In the context of the latter, it has been held that an appellate court may review a discretionary judgment that has failed to give proper weight to a particular matter, but it will be slow to do so because a mere preference for a different result will not suffice. ... So too in the context of administrative law, a court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on the merits.'
Case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: applied
To isolate each element of this complex factual analysis and subject it, out of context, to a detailed examination of the evidence to see if there is support for that element distorts the review process. The cautions of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 against over-zealous scrutiny 'by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed' are peculiarly appropriate here; at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. 25 In the same case Kirby J said, at 291: 'The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law.' His Honour recognised, however, that a decision-maker must establish the facts on the basis of evidence but warned, at 293, against 'an over-nice approach to the standard of proof'. Such an approach, 'betrays a misunderstanding of the way administrative decisions are usually made'. 26 In this case the Tribunal, either expressly or impliedly, took into account all the factors mentioned in [23] above. On the basis of evidence about those factors it made inferences of fact about the likelihood of certain events occurring in the future. In my view the Tribunal's conclusions were open to it on the evidence. However even if one regarded the minute analysis suggested by the applicant as necessary, for the reasons given below, I am still of the view that the applicant has not demonstrated that the Tribunal made a legal error.
Case: Powley v Crimes Compensation Tribunal (1996) 11 VAR 146
Outcome: referred to
In Schmid v Comcare (2003) 77 ALD 782 at 786, Weinberg J emphasised the 'high threshold' that needed to be met before a Court would find an error of law on the 'no evidence' ground. This high threshold was also referred to in Powley v Crimes Compensation Tribunal (1996) 11 VAR 146 where Phillips JA said at 157: 'The word 'reasonably' is used in this context, I suggest, just to emphasise that, when judging what was open and what was not open below, we are speaking of rational tribunals acting according to law, not irrational ones acting arbitrarily. The danger of using the word 'reasonably' lies in its being taken to suggest that a finding of fact may be overturned, on an appeal which is limited to the question of law, simply because that finding is regarded as 'unreasonable'. That is not the law as I understand it, at least in Australia. A finding of fact will be overturned on an appeal on a question of law only if that finding was not open.' His Honour's comments were referred to with approval by the Full Federal Court in Minister for Immigration and Multicultural Affairs v Epeabaka [1999] FCA 1 ; (1998) 84 FCR 411 at 421 - 422.
Case: Roads Corporation v Dacakis [1995] 2 VR 508
Outcome: referred to
The view was echoed by Batt J in Roads Corporation v Dacakis [1995] 2 VR 508 at 520 where his Honour said: 'a finding of fact will only be open to challenge as erroneous in law if there is no probative evidence to support it (and not also if it is not reasonably open on the evidence), whilst an inference will be open to challenge as being erroneous in law if it was not reasonably open on the facts. But, as the statement of Mason, C.J. at 360 shows, there is virtually no difference between the tests.'
Case: Schmid v Comcare (2003) 77 ALD 782
Outcome: referred to
In Schmid v Comcare (2003) 77 ALD 782 at 786, Weinberg J emphasised the 'high threshold' that needed to be met before a Court would find an error of law on the 'no evidence' ground. This high threshold was also referred to in Powley v Crimes Compensation Tribunal (1996) 11 VAR 146 where Phillips JA said at 157: 'The word 'reasonably' is used in this context, I suggest, just to emphasise that, when judging what was open and what was not open below, we are speaking of rational tribunals acting according to law, not irrational ones acting arbitrarily. The danger of using the word 'reasonably' lies in its being taken to suggest that a finding of fact may be overturned, on an appeal which is limited to the question of law, simply because that finding is regarded as 'unreasonable'. That is not the law as I understand it, at least in Australia. A finding of fact will be overturned on an appeal on a question of law only if that finding was not open.' His Honour's comments were referred to with approval by the Full Federal Court in Minister for Immigration and Multicultural Affairs v Epeabaka [1999] FCA 1 ; (1998) 84 FCR 411 at 421 - 422.
Case: Van Grieken v Veilands (1991) 21 ATR 1639 at 1644
Outcome: referred to
Hill J accepted that there was a distinction between extreme and serious hardship noting that what will constitute either will depend on the circumstances. His Honour also said it was inappropriate to attempt to state tests of what would constitute 'serious hardship' in the abstract and commented, at 259: 'Clearly there would be severe financial hardship if the dependants of a deceased person were left destitute without any means of support. That is not to say that in any particular case something less than that will not constitute serious hardship.' These observations were referred to with apparent approval by Gummow J in Van Grieken v Veilands (1991) 21 ATR 1639 at 1644.
Case: Zizza v Federal Commissioner of Taxation (1999) 42 ATR 371
Outcome: referred to
The Tribunal's decision to grant relief to a taxpayer who is in receipt of what, by community standards, is a very substantial income is initially surprising. However, the decision was based on a consideration of the evidence and the respondent's particular circumstances. As the Tribunal saw it, that income was highly vulnerable should the respondent be made bankrupt and, given the complications arising from the wife's illness, it was very likely that serious hardship would follow. On balance, I find that the Tribunal's conclusion was open to it and that the applicant has failed to establish the high standards of unreasonableness required for a decision to be reviewable on the Wednesbury ground. Whilst other minds might reasonably have disagreed with the Tribunal's inferences of fact and ultimate conclusion, the Tribunal's decision was not so unreasonable that no reasonable decision-maker could ever have come to it; see Zizza v Federal Commissioner of Taxation (1999) 42 ATR 371 at [15].
Case: Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 190 ALR 601
Outcome: referred to
The application was remitted to this Court pursuant to orders made by Gaudron J following the delivery of judgment in Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 190 ALR 601. 5 By letter dated 12 November 2004, the District Registrar of this Court notified the applicant that the Court proposed to consider whether there was an arguable case on the basis of the written material that the applicant had given to the Court and without any oral hearing. The applicant was invited to file written submissions on the question of whether the Court should make an order nisi . Written submissions were filed by the applicant on 10 December 2004. 6 I propose to deal with this application on the papers.
Case: Blair v Curren [1939] HCA 23 ; (1939) 62 CLR 464
Outcome: referred to
Res judicata arises where a cause of action relied on in proceedings has, in former proceedings, passed into judgment so that it has merged and has no longer an independent existence: see Blair v Curren [1939] HCA 23 ; (1939) 62 CLR 464 at 532 per Dixon J; Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589 at 597 per Gibbs CJ, Mason and Aickin JJ ( Anshun ). The doctrine of res judicata represents a complete bar to a new application because the cause of action is extinguished by the judgment: see Anshun at 612-3 per Brennan J.
Case: Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589
Outcome: referred to
Res judicata arises where a cause of action relied on in proceedings has, in former proceedings, passed into judgment so that it has merged and has no longer an independent existence: see Blair v Curren [1939] HCA 23 ; (1939) 62 CLR 464 at 532 per Dixon J; Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589 at 597 per Gibbs CJ, Mason and Aickin JJ ( Anshun ). The doctrine of res judicata represents a complete bar to a new application because the cause of action is extinguished by the judgment: see Anshun at 612-3 per Brennan J.
Case: Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 36 FCR 406 
Outcome: referred to
The question to be determined on a plea of res judicata is whether the cause of action relied upon in the proceedings in which the plea is raised is the same cause of action which has been determined in the earlier proceedings. In determining that question, the Court will have regard to the substance rather than the form of the proceedings: Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 36 FCR 406 (affirmed (1993) 43 FCR 510). 9 In the draft order nisi , the applicants claim that the Tribunal failed to afford them natural justice because they had not been given an opportunity (or at least an adequate opportunity) to prepare and present favourable material at the hearing or an adequate opportunity to respond to unfavourable material. In her supporting affidavit, the applicant does not give any particulars of the material that she wished to present to the Tribunal or the unfavourable material that she did not have an opportunity to respond to. There is no evidence before me that would support the applicant's claim that she was denied natural justice. 10 The submissions filed by the applicant on 10 December 2004 raise a number of grounds of review. First, the applicant submits that the Tribunal erred in failing to determine whether, on the totality of the facts found, she had a well-founded fear of persecution. Secondly, it is argued that the Tribunal misunderstood the elements of the definition of a refugee under the Convention which were supported by the facts of the case. Thirdly, the applicant says that the Tribunal erred in finding that women in India and/or Sikh women did not constitute a social group for Convention purposes. Fourthly, the applicant claims that she was denied procedural fairness as the Tribunal forced her to attend the hearing despite the fact that she had informed it of her psychological condition. Finally, the applicant made a number of claims regarding the merits of the decision of the Tribunal. In particular, the applicant says that the Tribunal did not realise that she suffered because of her husband's involvement in the Sikh movements and that she has a fear of harm by the Indian police authorities, who have provided her with no protection.