mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2003] FCAFC 13 ; (2003) 196 ALR 350
Outcome: cited
is well accepted, the power to award costs in all proceedings is discretionary. Nonetheless, as is occasionally observed, it is "common or usual practice" to order that the contemnor pay costs on an indemnity basis: see eg Concrete Constructions Pty Ltd v Plumbers and Gasfitters Employees' Union (No 2) (1987) 15 FCR 64 at 86-87. However, there is no general principle or rule of law in contempt cases to this effect: see Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2003] FCAFC 13 ; (2003) 196 ALR 350 at [6] ; and see generally Dal Pont, Law of Costs (2 nd ed, 2009) at [16.65]. As was observed by Moore J in the BHP Steel case at [8] "in a significant number of cases where indemnity costs have been awarded in contempt proceedings, there is a link between the award of indemnity costs and the penalty for contempt. Costs can be explicitly awarded in substitution for or in lieu of a monetary or other penalty". In the present matter as I have indicated I intend to impose what I regard as being a reasonable and adequate pecuniary penalty. I take that matter into account in my consideration of an appropriate costs order.
Case: Henderson v Federal Commissioner of Taxation (1970) 119 CLR 612
Outcome: cited
applicant says that in "timing" cases such as those presented by the 1992 and 1994 years, a taxpayer can object to an assessment on the basis that it is too low. Reliance is placed on Henderson v Federal Commissioner of Taxation (1970) 119 CLR 612 at 646 per Barwick CJ, with whom the other members of the Court agreed. The applicant points out that objections in relation to the 1992 and 1994 years are before the Court in relation to an issue other than those involved in this application to amend. The amendment application is filed in all proceedings on foot, including those for the 1992 and 1994 years. Section 67(2) of the Act empowers the Commissioner to amend an assessment at any time to give effect to a decision on a review or appeal. If the applicant is successful in its contention that amounts should be excised from its assessable receipts in the 1991, 1993, 1995 and 1996 years, the Commissioner will in my view have power under s 67(2) to amend the assessments for 1992 and 1994 by increasing the assessable receipts for those years. The Commissioner raised a technical obstacle to the course described in [36]. This was that as matters stand at present there is simply an application for leave to add an additional ground. Until the objections are actually amended, so that the issue for the 1992 and 1994 years are in fact before the Court, the prejudice to the Commissioner cannot be avoided. In order to assuage the Commissioner's concern, Counsel for the applicant proffered an undertaking that the issue will be brought before the Court so that an order under s 67(2) can be made. I accept that undertaking.
Case: Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1996) 189 CLR 146
Outcome: applied
Commissioner's complaint is as to the unexplained delay between the applicant's receipt of the 1997 assessment in August 2000 and Mr Leyden's discovery in May 2007. It is true, as the Commissioner maintains, that as an organisation (ie apart from Mr Leyden's explanation), the applicant has been guilty of serious delay. However, when Mr Leyden discovered the true position, he acted promptly to alert the Commissioner to the "new point" and seek his consent to raise the new grounds. As has often been said, an application for leave to amend is not the occasion for punishing a party for its delay in making the application. See Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1996) 189 CLR 146 at 155. This is very complicated litigation with many difficult issues spread over several tax years. While the delay is unfortunate, it is not of an order that should prevent all live issues between the parties being resolved in the one proceeding. I will grant leave to add the grounds the subject of pars 1 to 3 of the proposed minutes of orders handed up by the applicant. If the Commissioner seeks a more formal undertaking than that noted at [37], attention should be given to its form. I will also make the orders sought in pars 4 and 5 of the draft minutes. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg. Associate: Dated: 27 March 2009 Counsel for the Applicant: J De Wijn QC, M Flynn and S Stewart Solicitors for the Applicant: Allens Arthur Robinson Counsel for the Respondent: G Davies QC and A Pound Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 13 February 2009 Date of Judgment: 27 March 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/272.html
Case: Mikasa (NSW) Pty Limited v Festival Stores [1972] HCA 69 ; (1972) 127 CLR 617
Outcome: cited
A question then arises as to whether a substantial purpose among any other purpose of carrying on the commercial activities of Australia Post satisfies s 7(4) of the FOI Act for the purposes of Part II of Schedule 2 thus rendering Australia Post exempt from the operation of the FOI Act in relation to the list for the purposes of s 7(2) of the FOI Act. In Mikasa (NSW) Pty Limited v Festival Stores [1972] HCA 69 ; (1972) 127 CLR 617, the High Court was called upon to consider the proper construction for the purposes of s 66B(2) of the Trade Practices Act 1965 1971 (Cth) of the phrase 'for the reason that' in the context of a provision of that Act in terms that 'a person (in this section called 'the supplier') engages in the practice of resale price maintenance if ... (d) the supplier withholds the supply of goods to a second person for the reason that the second person [has engaged in a particular conduct including withholding supply of goods]'. Although the context will, of course, influence the construction to be adopted in any particular given case having regard to the provisions of the Act as a whole, Barwick CJ made this observation at page 634: In my opinion, it is not correct to so emphasise the participle in the phrase "for the reason that" as to interpret the paragraph as requiring the withholding of the supply to be for one reason only. In my opinion, if the likelihood that the would be purchaser would sell at less than the specific price is an operative reason for withholding that supply, the supplier engages in the practice of resale price maintenance, however many other reasons the supplier may in fact have for not supplying the goods; it is enough if it is an operative reason, that is to say, a substantial reason in the totality of reasons for the withholding of supply. [emphasis added] 45 The Trade Practices Act 1974 (Cth) (as amended) ultimately adopted provisions which expressly dealt with consequences in terms of the prescriptions in the Act of conduct engaged in for a purpose and whether, in the case of multiple purposes, the prescribed purpose was a substantial purpose. The remarks of the Chief Justice are directed to the general import of the construction to be given to the phrase 'for the reason that'. In Mikasa , Walsh J also took the view that the phrase 'for the reason that' ought to be construed to mean 'a substantial and operative reason' for withholding supplies (page 646). At page 658 of Mikasa , Stephen J said this: ... common experience suggests that decisions (at least of that nature) have lying behind them a process of decision-making involving the conscious or unconscious weighing of numerous factors, each no doubt of varying weight but each distinct from the others. In such a context each substantial and proximate reason will in my view answer the description of "the reason" in this paragraph. [emphasis added]
Case: National Mutual Life Association of Australia Limited v The Commissioner of Taxation [1970] HCA 51 ; (1970) 122 CLR 13
Outcome: cited
In National Mutual Life Association of Australia Limited v The Commissioner of Taxation [1970] HCA 51 ; (1970) 122 CLR 13 ( 'National Mutual' ), Gibbs J considered the meaning of the phrase 'for the purpose of producing assessable income' in s 88(1) of the Income Tax and Social Services Contribution Assessment Act 1936 1963 (Cth) in a provision which said, 'where a taxpayer has paid any premium in respect of land, premises or machinery used for the purpose of producing assessable income and in the year of income [certain events occurred] a proportionate part of the amount of that premium ... shall be an allowable deduction'. Gibbs J at page 18 said this: The question then is whether the words "used for the purpose of producing assessable income" in s 88(1) and (2) on their proper construction apply to land ... only when it is solely used or chiefly used for the purpose of producing assessable income. The section itself contains no words restricting its operation in that way. If the provisions are literally construed, they apply when the land is used for the purpose of producing some assessable income even though it is used for other purposes as well. No doubt the application of the section might be excluded if the use of the land for the purpose of producing assessable income was so insubstantial as to call for the application of the principle de minimis non curat lex , but it is unnecessary to consider that situation ... [emphasis added] 47 In National Mutual , at page 22, Gibbs J said this: I conclude that the words of s 88 should be given the broad meaning which, in their ordinary and natural sense, they are capable of bearing, and should be understood as including a reference to land which has in fact been used for the purpose of producing assessable income whether or not that was the main use of the land. [emphasis added]
Case: Hook v Rolfe (1986) 7 NSWLR 40
Outcome: cited
A similar position was adopted in Hook v Rolfe (1986) 7 NSWLR 40 per Hope, Glass and Samuels JJA at pp 44 and 45. In Secretary to The Department of Treasury and Finance v Dalla-Riva [2007] VSCA 11 , Buchanan JA with whom Ashley JA and Smith AJA agreed considered the construction to be given to a provision which said, 'a document is an exempt document if it is (b) a document that has been prepared by a Minister or on his or her behalf or by an agency for the purpose of submission for consideration by the Cabinet; (ba) a document prepared for the purpose of briefing a Minister in relation to issues to be considered by the Cabinet' (s 28(1) Freedom of Information Act 1982 ). At [13], Buchanan JA said this: The purpose identified in the relevant paragraph of s 28(1) may be the dominant purpose or one of a number of significantly contributing purposes. Notwithstanding that the objects of the Act set out in s 3 appear to me to warrant construing the rights conferred by the Act liberally and the exceptions narrowly, in my view as long as a purpose meeting the statutory description was causative in the sense that but for its presence, "the power would not have been exercised" it need not have been the sole purpose for the preparation of the document in question. [emphasis added]
Case: Secretary to The Department of Treasury and Finance v Dalla-Riva [2007] VSCA 11
Outcome: cited
A similar position was adopted in Hook v Rolfe (1986) 7 NSWLR 40 per Hope, Glass and Samuels JJA at pp 44 and 45. In Secretary to The Department of Treasury and Finance v Dalla-Riva [2007] VSCA 11 , Buchanan JA with whom Ashley JA and Smith AJA agreed considered the construction to be given to a provision which said, 'a document is an exempt document if it is (b) a document that has been prepared by a Minister or on his or her behalf or by an agency for the purpose of submission for consideration by the Cabinet; (ba) a document prepared for the purpose of briefing a Minister in relation to issues to be considered by the Cabinet' (s 28(1) Freedom of Information Act 1982 ). At [13], Buchanan JA said this: The purpose identified in the relevant paragraph of s 28(1) may be the dominant purpose or one of a number of significantly contributing purposes. Notwithstanding that the objects of the Act set out in s 3 appear to me to warrant construing the rights conferred by the Act liberally and the exceptions narrowly, in my view as long as a purpose meeting the statutory description was causative in the sense that but for its presence, "the power would not have been exercised" it need not have been the sole purpose for the preparation of the document in question. [emphasis added]
Case: Khoon's Official Assignee v Ex Liong Hin Ltd [1960] A.C. 178
Outcome: cited
See also on the question of the construction of the term, 'in the course of and for the purposes of', Khoon's Official Assignee v Ex Liong Hin Ltd [1960] A.C. 178 at 191 per Lord Denning, Lord Jenkins and the Rt. Hon. L.M.D. de Silva and on the question of approaches to the test of the validity of an act 'when the law makes the object, view or purpose of a man or of a body of men', an element of that validity, Mills v Mills [1938] HCA 4 ; (1938) 60 CLR 150 at 185 and 186 per Dixon J.
Case: Mills v Mills [1938] HCA 4 ; (1938) 60 CLR 150
Outcome: cited
See also on the question of the construction of the term, 'in the course of and for the purposes of', Khoon's Official Assignee v Ex Liong Hin Ltd [1960] A.C. 178 at 191 per Lord Denning, Lord Jenkins and the Rt. Hon. L.M.D. de Silva and on the question of approaches to the test of the validity of an act 'when the law makes the object, view or purpose of a man or of a body of men', an element of that validity, Mills v Mills [1938] HCA 4 ; (1938) 60 CLR 150 at 185 and 186 per Dixon J.
Case: Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510
Outcome: cited
First, in my view Mr Bickford correctly stated the process by which the Tribunal was required to reach its decision: namely to achieve, on the evidence presented by the appellant, a state of satisfaction as to whether the payment of the fee required by the regulations had caused, or was likely to cause, severe financial hardship to the appellant. This approach is consistent with the approach required of the Tribunal in reaching other decisions under the Migration Act : cf, for example, Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 and Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510. The appellant does not bear an onus to satisfy the Tribunal that the fee should be waived (cf Minister for Immigration and Multicultural and Indigenous Affairs v QAAH [2006] HCA 53 ; (2007) 231 ALR 340 at 351) however it is clear that it is for the appellant to advance whatever evidence or argument she wishes to advance in support of her claim: cf Abebe 197 CLR at 576, cf re Minister for Immigration and Multicultural Affairs, ex parte Cassim [2000] HCA 50 at [9] .
Case: Andary v Minister for Immigration &amp; Multicultural Affairs [2003] FCAFC 211
Outcome: considered
Fourth, I agree with the submission of Mr Bickford that it is yet to be established whether a decision which is unreasonable, in the sense explained in the Wednesbury case, is amenable to review for jurisdictional error in Australia: Andary v Minister for Immigration &amp; Multicultural Affairs [2003] FCAFC 211 at [28] . (I note further with respect to this point that the High Court refused leave to appeal from the decision in Andary [2003] FCAFC 211: Andary v Minister for Immigration and Multicultural Affairs [2004] HCA Trans 242). In any event, the finding of the Federal Magistrate that the decision of the Tribunal delegate was one open to him in the circumstances (at [25]) demonstrates that, in the view of Jarrett FM, the decision was not "unreasonable". Given that in my view the Tribunal has taken into account relevant considerations in reaching its decision, and has made its decision based on findings supported by probative material, I am not persuaded that his Honour was incorrect.
Case: Andary v Minister for Immigration &amp; Multicultural Affairs [2004] HCA Trans 242
Outcome: considered
Fourth, I agree with the submission of Mr Bickford that it is yet to be established whether a decision which is unreasonable, in the sense explained in the Wednesbury case, is amenable to review for jurisdictional error in Australia: Andary v Minister for Immigration &amp; Multicultural Affairs [2003] FCAFC 211 at [28] . (I note further with respect to this point that the High Court refused leave to appeal from the decision in Andary [2003] FCAFC 211: Andary v Minister for Immigration and Multicultural Affairs [2004] HCA Trans 242). In any event, the finding of the Federal Magistrate that the decision of the Tribunal delegate was one open to him in the circumstances (at [25]) demonstrates that, in the view of Jarrett FM, the decision was not "unreasonable". Given that in my view the Tribunal has taken into account relevant considerations in reaching its decision, and has made its decision based on findings supported by probative material, I am not persuaded that his Honour was incorrect.
Case: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321
Outcome: cited
Finally, I note again that it is for the appellant to make her case for waiver of the prescribed fee. While it is necessary that the Tribunal's decision be based on findings supported by probative material, or inferences of fact which can reasonably be drawn from such findings of fact (cf Deane J in Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 367), as correctly observed by Jarrett FM a finding of fact by the Tribunal against the weight of the evidence (as submitted by the appellant) does not constitute an error of law, let alone jurisdictional error. The material sought by the Tribunal was probative material upon which it would make decisions, and the appellant was on notice from the contents of the application form that the Tribunal placed importance upon receiving that documentary evidence. It is perhaps not surprising therefore that failure to provide relevant material as sought by the Tribunal - even if in the view of the appellant the material would not have added anything to what she had already said in the application form - contributed to a factual scenario where the Tribunal did not achieve a state of satisfaction which favoured the claim of the appellant. Irrespective whether the appellant can substantiate her contention that the facts of this case clearly indicate suggest that financial hardship would be occasioned to the appellant by payment of the fee - and indeed in my view it appears that the appellant was in fact in such financial circumstances that the payment of the fee would cause her severe financial hardship - the fact remains that review of decisions of the Tribunal is limited to questions of jurisdictional error, and not review of the merits of the decision. Second ground of appeal 32 Migration reg 4.13(4) requires a decision as to waiver of the prescribed fee by, inter alia , an "officer of the Tribunal authorised in writing by the Registrar". The appellant tendered material from which it was clear, and does not appear now to be in contention, that Mr AV Donohoe is such an authorised officer for the purposes of reg 4.13(4). The letter to the appellant was signed by Mr Manal Hajaj, who is not so authorised under reg 4.13(4). I note from exhibit A1, being a document entitled "Fee Waiver Recommendation" dated 15 December 2004, that: &#8226; Mr Hajaj was a member of the "Fee Waiver &amp; Priority Team" in the Tribunal &#8226; he had recommended to Mr Donohoe that the review fee for the appellant not be waived for reasons which were identical to those communicated to the appellant by letter from the Tribunal dated 28 January 2005 and &#8226; on 28 January 2005 Mr Donohoe accepted without qualification Mr Hajaj's recommendation and reasons by marking "Accepted" and signing the document containing Mr Hajaj's recommendation and reasons. 33 It is clear in these circumstances that a decision was made by an officer authorised within the meaning of reg 4.13(4) - namely Mr Donohoe - that the prescribed fee not be waived in favour of the appellant.
Case: David Jonathon Walsh v Mike Garrett [1998] 473 FCA
Outcome: cited
In my view these considerations are relevant to the decision of the Tribunal for the reasons explained by Jarrett FM in his Honour's decision. I have very little to add to the reasons of Jarrett FM in this regard, other than to note: &#8226; it is reasonable for the Tribunal to state in the application form to be completed by the appellant the material it requires and upon which it will base a decision (indeed failure to so indicate could itself constitute procedural unfairness: cf David Jonathon Walsh v Mike Garrett [1998] 473 FCA per Finn J). The documents specified in the application form were referable to considerations the Tribunal could relevantly take into account in making its decision, as explained by Jarrett FM &#8226; I do not accept the submission of Mr Boccabella that it does not follow that the failure to provide such bank statements can be a relevant consideration unless the decision-maker concludes that the appellant is attempting to mislead the decision-maker. As explained by Jarrett FM, the amount of money the appellant has had in her bank accounts both at and prior to the date of application for waiver is relevant to the decision whether payment of the fee would cause her financial hardship &#8226; I note the submission of the appellant that she had no credit card, and that a failure to provide a credit card statement could not lead to the conclusion that the payment of the fee would not cause her financial hardship, however at best any error of the Tribunal in relation to this issue is an error of fact which would not of itself constitute a jurisdictional error of the Tribunal in reaching its decision in these circumstances: NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76.
Case: Minister for Immigration &amp; Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611
Outcome: cited
First, in my view Mr Bickford correctly stated the process by which the Tribunal was required to reach its decision: namely to achieve, on the evidence presented by the appellant, a state of satisfaction as to whether the payment of the fee required by the regulations had caused, or was likely to cause, severe financial hardship to the appellant. This approach is consistent with the approach required of the Tribunal in reaching other decisions under the Migration Act : cf, for example, Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 and Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510. The appellant does not bear an onus to satisfy the Tribunal that the fee should be waived (cf Minister for Immigration and Multicultural and Indigenous Affairs v QAAH [2006] HCA 53 ; (2007) 231 ALR 340 at 351) however it is clear that it is for the appellant to advance whatever evidence or argument she wishes to advance in support of her claim: cf Abebe 197 CLR at 576, cf re Minister for Immigration and Multicultural Affairs, ex parte Cassim [2000] HCA 50 at [9] .