mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Gomez v Minister for Immigration and Multicultural Affairs [2002] FCAFC 105 ; (2002) 190 ALR 543
Outcome: cited
the Full Court of this Court has recognised that a residual discretion resides in this Court to allow a party to advance a ground of appeal not advanced before the Court from which the appeal is brought where it is in the interests of justice to do so: Iyer [2000] FCA 1788. In Gomez v Minister for Immigration and Multicultural Affairs [2002] FCAFC 105 ; (2002) 190 ALR 543 , the Full Court adopted the test propounded by the High Court in appeals to that Court in Metwally v University of Wollongong [1985] HCA 28 ; 60 ALR 68 at 71 that a party is bound by the conduct of the party's case in the Court below except in "the most exceptional circumstances".
Case: H v Minister for Immigration and Multicultural Affairs [2000] FCA 1348 ; (2000) 63 ALD 43
Outcome: cited
course, appeals of this kind are particularly sensitive: Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788. It is particularly important to the party seeking refugee status that that party's claim be considered by the Tribunal in accordance with law. That said, however, it seems to me that it is necessary to protect the integrity of the appellate jurisdiction that parties be bound by the way in which they conducted their application for judicial review before the Federal Magistrates Court: H v Minister for Immigration and Multicultural Affairs [2000] FCA 1348 ; (2000) 63 ALD 43.
Case: Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788
Outcome: cited
course, appeals of this kind are particularly sensitive: Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788. It is particularly important to the party seeking refugee status that that party's claim be considered by the Tribunal in accordance with law. That said, however, it seems to me that it is necessary to protect the integrity of the appellate jurisdiction that parties be bound by the way in which they conducted their application for judicial review before the Federal Magistrates Court: H v Minister for Immigration and Multicultural Affairs [2000] FCA 1348 ; (2000) 63 ALD 43. However, the Full Court of this Court has recognised that a residual discretion resides in this Court to allow a party to advance a ground of appeal not advanced before the Court from which the appeal is brought where it is in the interests of justice to do so: Iyer [2000] FCA 1788. In Gomez v Minister for Immigration and Multicultural Affairs [2002] FCAFC 105 ; (2002) 190 ALR 543 , the Full Court adopted the test propounded by the High Court in appeals to that Court in Metwally v University of Wollongong [1985] HCA 28 ; 60 ALR 68 at 71 that a party is bound by the conduct of the party's case in the Court below except in "the most exceptional circumstances".
Case: Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929 ; (2001) 192 ALR 71
Outcome: cited
will the Minister in an appeal to this Court from a migration judgment of the Federal Magistrates Court be able to point to any prejudice of the conventional kind. That cannot be a reason to allow a party to raise issues not raised in the Court below. In Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929 ; (2001) 192 ALR 71 , Gyles J said at 86: In my opinion, it is wrong to analyse a question which arises here as requiring a balancing of prejudice. Departure from the proper role of appeal in the court system is not simply a discretionary procedural decision. Furthermore, in public law matters like this, it can always be said that no actual prejudice apart from costs is suffered by the respondent compared with the prejudice to the appellant. It can easily be overlooked that there is a significant public interest in the timely and effective disposal of litigation. This aspect has particular force in this area of public law, where delays in dealing with applications for protection visas are obviously to be avoided if possible. In the present case, there was no bona fide ground of appeal from the primary decision and the litigation should have ended at that point more than 7 months ago. The Minister has a legitimate interest in the timely disposal of applications for protection visas. There are other public interests, however, to which regard should be had. There are good reasons why this Court should not be made de facto the Court of original jurisdiction when sitting on appeal. Otherwise its role as an intermediate Court of Appeal will be undermined. The High Court should not be burdened by applications for leave to appeal from decisions of this Court which have not been reviewed. The respondent conceded that I needed to consider whether any of the grounds had any merit before determining whether or not I should allow the application to amend. The concession was rightly made having regard to the decisions of this Court and, in particular, VUAX [2004] FCAFC 158. Adopting that procedure, however, means that in every case where there is an application to raise a ground not previously raised in the Court below, the party seeking to have the ground agitated will by reason of the application itself require the Court to consider the ground. It is a curious result when the Court would otherwise discourage such applications but a result which arises because the Court's overriding duty is to do justice. The reason for the power to allow a party to raise a ground on appeal for the first time is to do justice.
Case: Metwally v University of Wollongong [1985] HCA 28 ; (1985) 60 ALR 68 
Outcome: cited
High Court has made it plain that, ordinarily, a party is confined in its grounds of appeal to matters which have been raised in the Court below. The High Court said in Metwally v University of Wollongong [1985] HCA 28 ; (1985) 60 ALR 68 at 71: It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case has been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so. However, the Full Court of this Court has recognised that a residual discretion resides in this Court to allow a party to advance a ground of appeal not advanced before the Court from which the appeal is brought where it is in the interests of justice to do so: Iyer [2000] FCA 1788. In Gomez v Minister for Immigration and Multicultural Affairs [2002] FCAFC 105 ; (2002) 190 ALR 543 , the Full Court adopted the test propounded by the High Court in appeals to that Court in Metwally v University of Wollongong [1985] HCA 28 ; 60 ALR 68 at 71 that a party is bound by the conduct of the party's case in the Court below except in "the most exceptional circumstances". Section 430(1)(c) does not oblige the Tribunal to make findings of fact that a court may consider to be material. In Minister for Immigration v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 , McHugh, Gummow and Hayne JJ said at [68]-[69] that the obligation on the Tribunal is to set out in its written statement its findings on what it considered to be material questions of fact.
Case: Minister for Immigration v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323
Outcome: cited
430(1)(c) does not oblige the Tribunal to make findings of fact that a court may consider to be material. In Minister for Immigration v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 , McHugh, Gummow and Hayne JJ said at [68]-[69] that the obligation on the Tribunal is to set out in its written statement its findings on what it considered to be material questions of fact.
Case: Ballarat Brewing Company Limited v Federal Commissioner of Taxation [1951] HCA 35 ; (1951) 82 CLR 364
Outcome: cited
Further, even where there is no legal or equitable restriction affecting the receipt, the receipt may not come home where: (a) the practical 'realities' prevent the taxpayer from the separate use, benefit or enjoyment of a gain because the obligor cannot meet their legal or contractual obligations to the taxpayer (see Prior at 13); or (b) it would be unsound from a business or legal perspective, to recognise the receipt as income because the receipt did not give a 'substantially correct reflex of the taxpayer's true income': see Carden at 145; Arthur Murray at 318; Ballarat Brewing Company Limited v Federal Commissioner of Taxation [1951] HCA 35 ; (1951) 82 CLR 364 at 368, 369. 83 This is illustrated by the approach to income recognition in the area of insurance. It is accepted that, in an appropriate case, the aggregate of insurance premiums received by an insurer in a year of income does not give a substantially correct reflex of that insurer's income because of the contingencies affecting those premiums: see Sun Insurance Office v Clark (1912) AC 443 at 452-4, 456 and 460, 461, approved in Ballarat Brewing and Carden .
Case: Barclays Mercantile Business Finance Ltd v Mawson [2005] 1 AC 684
Outcome: cited
In determining whether an amount paid or payable to the taxpayer has the character of income, it is necessary: (a) to have regard to the quality of the amount in the hands of the taxpayer and not to the character of the expenditure to the payer : Federal Commissioner of Taxation v McNeil [2007] HCA 5 ; (2007) 229 CLR 656 at [20] and [55]; G.P. International Pipecoaters Pty Ltd v Federal Commissioner of Taxation [1990] HCA 25 ; (1990) 170 CLR 124 at 136; (b) to have regard to the whole of the surrounding circumstances or factual matrix, and not just to the contract under which the amount is paid or payable: Federal Coke Co Pty Ltd v Federal Commissioner of Taxation (1977) 34 FLR 375 at 385; Federal Commissioner of Taxation v Cooling (1990) 22 FCR 42 at 53; (c) as an elaboration of the previous paragraph, to consider the substance rather than the form of the transaction, particularly where an amount is paid as part of a wider, composite transaction: Dickenson v Federal Commissioner of Taxation [1958] HCA 62 ; (1958) 98 CLR 460 at 482, 491; Reuter v Federal Commissioner of Taxation 93 ATC 5030 at 5036 5037; Federal Commissioner of Taxation v Broken Hill Pty Co Ltd (2000) 45 ATR 507 at [50]; Macquarie Finance Ltd v Federal Commissioner of Taxation (2004) 57 ATR 115 at [61], [64] per Hill J, on appeal [2005] FCAFC 205 ; (2005) 146 FCR 77 at [109] [111] per French J, [169] [170] and [187] per Hely J, and [251] [253] per Gyles J; Customs &amp; Excise Commissioners v Diners Club Ltd [1989] 1 WLR 1196 at 1207; see also Barclays Mercantile Business Finance Ltd v Mawson [2005] 1 AC 684; and (d) to disregard the labels used by the parties: Federal Commissioner of Taxation v Krakos Investments Pty Ltd (1995) 61 FCR 489 at 495; Vincent v Federal Commissioner of Taxation (2002) 124 FCR 350 at [64] [72].
Case: Brogden v Metropolitan Railway (1877) 2 AC 666
Outcome: cited
The authorities support the proposition that an agreement may be implied from the acts and conduct of the parties even where the strictures of offer and acceptance cannot be strictly proven: see Brogden v Metropolitan Railway (1877) 2 AC 666 at 672, 678, 679, 686, 689, 698; Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 B.P.R 11,110 at 11,117; Pobjie Agencies v Vinidex Tubemakers (2000) Aust Contract R 90-112 at [21]-[32]; see also Vroon v Foster's Brewing Group Ltd [1994] 2 VR 32 at 67.
Case: Commissioner of Taxation v Dunn (1989) 85 ALR 244
Outcome: referred to
Expert accounting evidence was called by BARM in support of the argument underlying alternative (2) from Professor Robert Walker, the Professor of Accounting in the Faculty of Economics and Business at the University of Sydney. The Commissioner relied on expert accounting evidence from Mr Wayne Lonergan to deny the appropriateness of any financial accounting treatment consistent with the argument underlying alternative (2). With respect to both experts, I did not find their evidence provided me with any constructive assistance in resolving the issues raised by BARM's arguments. In any event, as Davies J observed in Commissioner of Taxation v Dunn (1989) 85 ALR 244 at 252: '... ordinary accounting principles and practices are not determinative of the issue, they are relevant and may be influential, as Dixon J in Carden's case (at 152) and Barwick CJ, Kitto and Taylor JJ in Arthur Murray (at 318) pointed out ...'
Case: Commissioner of Taxes (SA) v Executor Trustee and Agency Co of South Australia [1938] HCA 69 ; (1938) 63 CLR 108
Outcome: considered
Central to the concept of derivation is the proposition that there must be a gain in the sense of an amount which has 'come home' to the taxpayer, i.e. it is available for the taxpayer's separate use, benefit and disposal: Federal Commissioner of Taxation v Montgomery [1999] HCA 34 ; (1999) 198 CLR 639 at [65] and [117]-[118]; Commissioner of Taxes (SA) v Executor Trustee and Agency Co of South Australia (' Carden ') [1938] HCA 69 ; (1938) 63 CLR 108 at 155; Arthur Murray (NSW) Pty Ltd v Federal Commissioner of Taxation [1965] HCA 58 ; (1965) 114 CLR 314 at 318; Eisner v Macomber [1919] USSC 118 ; (1920) 252 US 189 at 207 applied in Montgomery at [117]. That is, receipt of itself is not sufficient to constitute a gain or an amount as income derived: Arthur Murray at 318.
Case: Customs &amp; Excise Commissioners v Diners Club Ltd [1989] 1 WLR 1196
Outcome: cited
In determining whether an amount paid or payable to the taxpayer has the character of income, it is necessary: (a) to have regard to the quality of the amount in the hands of the taxpayer and not to the character of the expenditure to the payer : Federal Commissioner of Taxation v McNeil [2007] HCA 5 ; (2007) 229 CLR 656 at [20] and [55]; G.P. International Pipecoaters Pty Ltd v Federal Commissioner of Taxation [1990] HCA 25 ; (1990) 170 CLR 124 at 136; (b) to have regard to the whole of the surrounding circumstances or factual matrix, and not just to the contract under which the amount is paid or payable: Federal Coke Co Pty Ltd v Federal Commissioner of Taxation (1977) 34 FLR 375 at 385; Federal Commissioner of Taxation v Cooling (1990) 22 FCR 42 at 53; (c) as an elaboration of the previous paragraph, to consider the substance rather than the form of the transaction, particularly where an amount is paid as part of a wider, composite transaction: Dickenson v Federal Commissioner of Taxation [1958] HCA 62 ; (1958) 98 CLR 460 at 482, 491; Reuter v Federal Commissioner of Taxation 93 ATC 5030 at 5036 5037; Federal Commissioner of Taxation v Broken Hill Pty Co Ltd (2000) 45 ATR 507 at [50]; Macquarie Finance Ltd v Federal Commissioner of Taxation (2004) 57 ATR 115 at [61], [64] per Hill J, on appeal [2005] FCAFC 205 ; (2005) 146 FCR 77 at [109] [111] per French J, [169] [170] and [187] per Hely J, and [251] [253] per Gyles J; Customs &amp; Excise Commissioners v Diners Club Ltd [1989] 1 WLR 1196 at 1207; see also Barclays Mercantile Business Finance Ltd v Mawson [2005] 1 AC 684; and (d) to disregard the labels used by the parties: Federal Commissioner of Taxation v Krakos Investments Pty Ltd (1995) 61 FCR 489 at 495; Vincent v Federal Commissioner of Taxation (2002) 124 FCR 350 at [64] [72].
Case: Dickenson v Federal Commissioner of Taxation [1958] HCA 62 ; (1958) 98 CLR 460
Outcome: cited
In determining whether an amount paid or payable to the taxpayer has the character of income, it is necessary: (a) to have regard to the quality of the amount in the hands of the taxpayer and not to the character of the expenditure to the payer : Federal Commissioner of Taxation v McNeil [2007] HCA 5 ; (2007) 229 CLR 656 at [20] and [55]; G.P. International Pipecoaters Pty Ltd v Federal Commissioner of Taxation [1990] HCA 25 ; (1990) 170 CLR 124 at 136; (b) to have regard to the whole of the surrounding circumstances or factual matrix, and not just to the contract under which the amount is paid or payable: Federal Coke Co Pty Ltd v Federal Commissioner of Taxation (1977) 34 FLR 375 at 385; Federal Commissioner of Taxation v Cooling (1990) 22 FCR 42 at 53; (c) as an elaboration of the previous paragraph, to consider the substance rather than the form of the transaction, particularly where an amount is paid as part of a wider, composite transaction: Dickenson v Federal Commissioner of Taxation [1958] HCA 62 ; (1958) 98 CLR 460 at 482, 491; Reuter v Federal Commissioner of Taxation 93 ATC 5030 at 5036 5037; Federal Commissioner of Taxation v Broken Hill Pty Co Ltd (2000) 45 ATR 507 at [50]; Macquarie Finance Ltd v Federal Commissioner of Taxation (2004) 57 ATR 115 at [61], [64] per Hill J, on appeal [2005] FCAFC 205 ; (2005) 146 FCR 77 at [109] [111] per French J, [169] [170] and [187] per Hely J, and [251] [253] per Gyles J; Customs &amp; Excise Commissioners v Diners Club Ltd [1989] 1 WLR 1196 at 1207; see also Barclays Mercantile Business Finance Ltd v Mawson [2005] 1 AC 684; and (d) to disregard the labels used by the parties: Federal Commissioner of Taxation v Krakos Investments Pty Ltd (1995) 61 FCR 489 at 495; Vincent v Federal Commissioner of Taxation (2002) 124 FCR 350 at [64] [72].
Case: Eisner v Macomber [1919] USSC 118 ; (1920) 252 US 189
Outcome: cited
Central to the concept of derivation is the proposition that there must be a gain in the sense of an amount which has 'come home' to the taxpayer, i.e. it is available for the taxpayer's separate use, benefit and disposal: Federal Commissioner of Taxation v Montgomery [1999] HCA 34 ; (1999) 198 CLR 639 at [65] and [117]-[118]; Commissioner of Taxes (SA) v Executor Trustee and Agency Co of South Australia (' Carden ') [1938] HCA 69 ; (1938) 63 CLR 108 at 155; Arthur Murray (NSW) Pty Ltd v Federal Commissioner of Taxation [1965] HCA 58 ; (1965) 114 CLR 314 at 318; Eisner v Macomber [1919] USSC 118 ; (1920) 252 US 189 at 207 applied in Montgomery at [117]. That is, receipt of itself is not sufficient to constitute a gain or an amount as income derived: Arthur Murray at 318.
Case: Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55 ; (2004) 218 CLR 471 
Outcome: cited
While the Commissioner's primary submission is that the mode of discharge of payment of the management fees is irrelevant to the issue of derivation by BARM, the mode of discharge adopted (utilising bills of exchange) had the consequence that payments in the amounts shown on the bills of exchange (i.e. full payment of the management fees instalments) are to be taken as having been made to BARM on the dates on which the bills of exchange were delivered to it: Howland-Rose at [128] [130]; Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55 ; (2004) 218 CLR 471 at [44] [47].
Case: Federal Commissioner of Taxation v Broken Hill Pty Co Ltd (2000) 45 ATR 507
Outcome: cited
In determining whether an amount paid or payable to the taxpayer has the character of income, it is necessary: (a) to have regard to the quality of the amount in the hands of the taxpayer and not to the character of the expenditure to the payer : Federal Commissioner of Taxation v McNeil [2007] HCA 5 ; (2007) 229 CLR 656 at [20] and [55]; G.P. International Pipecoaters Pty Ltd v Federal Commissioner of Taxation [1990] HCA 25 ; (1990) 170 CLR 124 at 136; (b) to have regard to the whole of the surrounding circumstances or factual matrix, and not just to the contract under which the amount is paid or payable: Federal Coke Co Pty Ltd v Federal Commissioner of Taxation (1977) 34 FLR 375 at 385; Federal Commissioner of Taxation v Cooling (1990) 22 FCR 42 at 53; (c) as an elaboration of the previous paragraph, to consider the substance rather than the form of the transaction, particularly where an amount is paid as part of a wider, composite transaction: Dickenson v Federal Commissioner of Taxation [1958] HCA 62 ; (1958) 98 CLR 460 at 482, 491; Reuter v Federal Commissioner of Taxation 93 ATC 5030 at 5036 5037; Federal Commissioner of Taxation v Broken Hill Pty Co Ltd (2000) 45 ATR 507 at [50]; Macquarie Finance Ltd v Federal Commissioner of Taxation (2004) 57 ATR 115 at [61], [64] per Hill J, on appeal [2005] FCAFC 205 ; (2005) 146 FCR 77 at [109] [111] per French J, [169] [170] and [187] per Hely J, and [251] [253] per Gyles J; Customs &amp; Excise Commissioners v Diners Club Ltd [1989] 1 WLR 1196 at 1207; see also Barclays Mercantile Business Finance Ltd v Mawson [2005] 1 AC 684; and (d) to disregard the labels used by the parties: Federal Commissioner of Taxation v Krakos Investments Pty Ltd (1995) 61 FCR 489 at 495; Vincent v Federal Commissioner of Taxation (2002) 124 FCR 350 at [64] [72].
Case: Federal Commissioner of Taxation v Cooling (1990) 22 FCR 42
Outcome: cited
In determining whether an amount paid or payable to the taxpayer has the character of income, it is necessary: (a) to have regard to the quality of the amount in the hands of the taxpayer and not to the character of the expenditure to the payer : Federal Commissioner of Taxation v McNeil [2007] HCA 5 ; (2007) 229 CLR 656 at [20] and [55]; G.P. International Pipecoaters Pty Ltd v Federal Commissioner of Taxation [1990] HCA 25 ; (1990) 170 CLR 124 at 136; (b) to have regard to the whole of the surrounding circumstances or factual matrix, and not just to the contract under which the amount is paid or payable: Federal Coke Co Pty Ltd v Federal Commissioner of Taxation (1977) 34 FLR 375 at 385; Federal Commissioner of Taxation v Cooling (1990) 22 FCR 42 at 53; (c) as an elaboration of the previous paragraph, to consider the substance rather than the form of the transaction, particularly where an amount is paid as part of a wider, composite transaction: Dickenson v Federal Commissioner of Taxation [1958] HCA 62 ; (1958) 98 CLR 460 at 482, 491; Reuter v Federal Commissioner of Taxation 93 ATC 5030 at 5036 5037; Federal Commissioner of Taxation v Broken Hill Pty Co Ltd (2000) 45 ATR 507 at [50]; Macquarie Finance Ltd v Federal Commissioner of Taxation (2004) 57 ATR 115 at [61], [64] per Hill J, on appeal [2005] FCAFC 205 ; (2005) 146 FCR 77 at [109] [111] per French J, [169] [170] and [187] per Hely J, and [251] [253] per Gyles J; Customs &amp; Excise Commissioners v Diners Club Ltd [1989] 1 WLR 1196 at 1207; see also Barclays Mercantile Business Finance Ltd v Mawson [2005] 1 AC 684; and (d) to disregard the labels used by the parties: Federal Commissioner of Taxation v Krakos Investments Pty Ltd (1995) 61 FCR 489 at 495; Vincent v Federal Commissioner of Taxation (2002) 124 FCR 350 at [64] [72].