mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Re Summers and Secretary, Department of Family and Community Services [2005] AATA 125
Outcome: referred to
The written submissions include reference to the Legal Services Directions 2005 , Judiciary Act 1903 (Cth) and to the 'Model Litigant' responsibility referred to in Re Summers and Secretary, Department of Family and Community Services [2005] AATA 125. Mr Croker submits that the standard of fair dealing which was referred to in such authorities applies to the Commonwealth as a model litigant. 47 The facts giving rise to Mr Croker's claim and the relief claimed in the current proceedings are, subject to the increase in damages claimed from $100,000 to $200,000, the same as those referred to in NSD 2478 of 2006 which were transferred to the Federal Magistrates Court and became proceedings SYG 548 of 2007. Those proceedings were dismissed because Mr Croker did not comply with the order made by Federal Magistrate Lloyd-Jones on 31 October 2007. 48 The statements of claim in both proceedings NSD 2478 of 2006 and in the current proceedings include claims under s 52 of the Trade Practices Act 1974 (Cth), breach of warranty and a claim for 'wrongfully defending a claim' . The last mentioned claim is predicated upon the basis that the Commonwealth is required to observe a policy of fair dealing pursuant to the direction of the Attorney-General under s 55ZF of the Judiciary Act 1903 (Cth).
Case: Sea Culture International Pty Ltd v Scoles and Others [1991] FCA 523 ; (1991) 32 FCR 275
Outcome: applied
As was observed in Sea Culture International Pty Ltd v Scoles and Others [1991] FCA 523 ; (1991) 32 FCR 275 at 279, there is an infinite variety of circumstances which may give rise to an abuse of process (see also Ashmore v British Coal Corporation [1990] 2 QB 338 at 348). However, the Court is mindful that the power to strike out proceedings should be used only in exceptional cases where the facts disclose a clear case of abuse: see Sea Culture at 279.
Case: SZMHQ v Minister for Immigration and Anor [2008] FMCA 1190
Outcome: affirmed
This appeal is from a judgment of the Federal Magistrates Court of Australia, given on 22 August 2008 and published as SZMHQ v Minister for Immigration and Anor [2008] FMCA 1190. The learned federal magistrate dismissed the appellant's application to set aside a decision of the Refugee Review Tribunal ("the Tribunal"), dated 17 April 2008, and handed down or sent on 13 May 2008. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Citizenship ("the Minister"), the first respondent to this appeal, not to grant the appellant a protection visa. 2 The appellant is a citizen of Thailand, who arrived in Australia on 2 September 2007. On 12 October 2007, she applied to the Department of Immigration and Citizenship for a protection visa. The decision of the delegate of the Minister refusing to grant the visa was made on 20 December 2007. 3 By s 36 of the Migration Act 1958 (Cth) ("the Migration Act "), there is a class of visas to be known as protection visas. A criterion for a protection visa is that the person applying for it be a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The terms "Refugees Convention" and "Refugees Protocol" are defined in s 5(1) of the Migration Act to mean, respectively, the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol relating to the Status of Refugees done at New York on 31 January 1967 . It is convenient to refer to these two documents, taken together, as the "Convention".
Case: Australia &amp; New Zealand Savings Bank v Commissioner of Taxation [1992] FCA 493 ; (1993) 42 FCR 535
Outcome: referred to
That the process of characterisation is approached from a practical and business point of view does not provide licence to ignore the legal relationship actually formed by the terms of the transaction. Subject to considerations of sham (not relevant here) and to considerations that the legal form agreed on may have been varied or may be incomplete (also not relevant here), the process of characterisation, from a practical and business point of view, is one that is directed to the legal rights and obligations created by the parties in their transaction (here, in the constituent documents). This was made clear in the judgments of Gibbs ACJ and Stephen and Aickin JJ in Federal Commissioner of Taxation v South Australia Battery Makers Pty Ltd [1978] HCA 32 ; (1978) 140 CLR 645 at 659-660 and 662, respectively. It is also made clear in the reasons of the Full Court in CityLink Melbourne Limited v Commissioner of Taxation [2004] FCAFC 272 ; (2004) 141 FCR 69 at [40] - [45] ; and in the reasons of Hill J (with whom Davies and Heerey JJ agreed) in Australia &amp; New Zealand Savings Bank v Commissioner of Taxation [1992] FCA 493 ; (1993) 42 FCR 535 at 560.
Case: BP Australia Limited v Commissioner of Taxation [1965] UKPCHCA 2 ; (1965) 112 CLR 386
Outcome: referred to
To similar effect, see the judgment of the Privy Council in BP Australia Limited v Commissioner of Taxation [1965] UKPCHCA 2 ; (1965) 112 CLR 386 at 397 and 399. 58 It is clear that the character of the advantage sought by the making of the expenditure is the chief, if not critical, factor in determining the character of what was paid: The Colonial Mutual Life Assurance Society Limited v The Federal Commissioner of Taxation [1953] HCA 68 ; (1953) 89 CLR 428 at 454; GP International Pipecoaters Pty Limited v Commissioner of Taxation [1990] HCA 25 ; (1990) 170 CLR 124 at 137; Mount Isa Mines Limited v Commissioner of Taxation [1992] HCA 62 ; (1992) 176 CLR 141 at 147-149; Commissioner of Taxation v CityLink Melbourne Limited [2006] HCA 35 ; (2006) 228 CLR 1 at [1] , [3], [76], [77] and [148]; and BP Australia 112 CLR at 394 and 398. 61 It is also essential to recognise that the above analysis of characterisation requires "both a wide survey and an exact scrutiny of the taxpayer's activities": Western Gold Mines (NL) v Commissioner of Taxation (WA) [1938] HCA 5 ; (1938) 59 CLR 729 at 740. That is, one examines the whole business context of what was done: BP Australia 112 CLR at 399; National Australia Bank Limited v Commissioner of Taxation (1997) 80 FCR 352 at 362; Commissioner of Taxation v Cooling (1990) 22 FCR 42 at 52-53 (Hill J); and Macquarie Finance Limited v Commissioner of Taxation [2004] FCA 1170 ; (2004) 210 ALR 508 (Hill J) at [64]. Relevant also here is the close interconnection of all the constituent documents in the integrated international commercial transaction: cf Inland Revenue Commissioner v Europa Oil (NZ) Ltd [1971] AC 760 at 774-775.
Case: CityLink Melbourne Limited v Commissioner of Taxation [2004] FCAFC 272 ; (2004) 141 FCR 69
Outcome: discussed
It is clear that the character of the advantage sought by the making of the expenditure is the chief, if not critical, factor in determining the character of what was paid: The Colonial Mutual Life Assurance Society Limited v The Federal Commissioner of Taxation [1953] HCA 68 ; (1953) 89 CLR 428 at 454; GP International Pipecoaters Pty Limited v Commissioner of Taxation [1990] HCA 25 ; (1990) 170 CLR 124 at 137; Mount Isa Mines Limited v Commissioner of Taxation [1992] HCA 62 ; (1992) 176 CLR 141 at 147-149; Commissioner of Taxation v CityLink Melbourne Limited [2006] HCA 35 ; (2006) 228 CLR 1 at [1] , [3], [76], [77] and [148]; and BP Australia 112 CLR at 394 and 398. 59 That the process of characterisation is approached from a practical and business point of view does not provide licence to ignore the legal relationship actually formed by the terms of the transaction. Subject to considerations of sham (not relevant here) and to considerations that the legal form agreed on may have been varied or may be incomplete (also not relevant here), the process of characterisation, from a practical and business point of view, is one that is directed to the legal rights and obligations created by the parties in their transaction (here, in the constituent documents). This was made clear in the judgments of Gibbs ACJ and Stephen and Aickin JJ in Federal Commissioner of Taxation v South Australia Battery Makers Pty Ltd [1978] HCA 32 ; (1978) 140 CLR 645 at 659-660 and 662, respectively. It is also made clear in the reasons of the Full Court in CityLink Melbourne Limited v Commissioner of Taxation [2004] FCAFC 272 ; (2004) 141 FCR 69 at [40] - [45] ; and in the reasons of Hill J (with whom Davies and Heerey JJ agreed) in Australia &amp; New Zealand Savings Bank v Commissioner of Taxation [1992] FCA 493 ; (1993) 42 FCR 535 at 560. 63 Equally impermissible is to recast the transaction entered between the parties and substitute an economic equivalent: CityLink Melbourne 141 FCR at 40 and Commissioner of Taxation v Myer Emporium Ltd [1987] HCA 18 ; (1986) 163 CLR 199 at 217. Some of the submissions of the Commissioner tended towards such an approach. It is not permissible, for instance, to take as the subject of characterisation what is "really happening", being the payment of money by SGB, nominally as "interest", but in truth as the payment to capital securities holder of their dividend. That is not the legal relationship that has been lawfully set up. The payment to be the subject of characterisation is the payment of interest on the Debenture under the Indenture. The task is to decide, from a business and practical perspective, giving weight to the nature of the rights and obligations of the parties created by the relevant transaction documents, and placing the Indenture and the rights and obligations arising therefrom in their complete relevant legal and business context, whether the outgoings of interest bear the character of capital or revenue.
Case: Colonial Mutual Life Assurance Society Limited v The Federal Commissioner of Taxation [1953] HCA 68 ; (1953) 89 CLR 428
Outcome: referred to
It is clear that the character of the advantage sought by the making of the expenditure is the chief, if not critical, factor in determining the character of what was paid: The Colonial Mutual Life Assurance Society Limited v The Federal Commissioner of Taxation [1953] HCA 68 ; (1953) 89 CLR 428 at 454; GP International Pipecoaters Pty Limited v Commissioner of Taxation [1990] HCA 25 ; (1990) 170 CLR 124 at 137; Mount Isa Mines Limited v Commissioner of Taxation [1992] HCA 62 ; (1992) 176 CLR 141 at 147-149; Commissioner of Taxation v CityLink Melbourne Limited [2006] HCA 35 ; (2006) 228 CLR 1 at [1] , [3], [76], [77] and [148]; and BP Australia 112 CLR at 394 and 398.
Case: Commissioner of Taxation v Asiamet (No 1) Resources Pty Ltd [2004] FCAFC 73 ; (2004) 137 FCR 146
Outcome: referred to
At times, the submissions put on behalf of SGB appeared to combine the undoubtedly correct (at least at a sufficient level of generality) propositions that the contractual and legal rights must be analysed and that the separateness of corporate entities must be recognised: The Federal Coke Company v Federal Commissioner of Taxation (1997) 15 ALR 449 at 459 per Bowen CJ and Commissioner of Taxation v Asiamet (No 1) Resources Pty Ltd [2004] FCAFC 73 ; (2004) 137 FCR 146 at [148] - [165] , in aid of a different objective, that is to have the interest payable under the Debenture analysed by reference primarily, if not wholly, to the rights and obligations created under the Indenture, without regard to the whole of the surrounding arrangement. Such an approach is impermissible. It ignores the essential requirement to view the legal rights and obligations created by the parties, and payments and outgoings made thereunder, in their whole legal and commercial context, in order that the characterisation, from a business and practical point of view, of the payment or outgoing by reference to the relevant legal relationship can be undertaken. Legal form is the subject of the characterisation; it is not the sole source of the answer to that process of characterisation: cf Parsons RW op cit [2.421]-[2.422]. The requirement to look at the whole legal and business context is not denied by what was said by Deane and Sheppard JJ in Ure v Federal Commission of Taxation (1981) 34 ALR 237 at 249, as appeared to be put by SGB.
Case: Commissioner of Taxation v Cooling (1990) 22 FCR 42
Outcome: referred to
It is also essential to recognise that the above analysis of characterisation requires "both a wide survey and an exact scrutiny of the taxpayer's activities": Western Gold Mines (NL) v Commissioner of Taxation (WA) [1938] HCA 5 ; (1938) 59 CLR 729 at 740. That is, one examines the whole business context of what was done: BP Australia 112 CLR at 399; National Australia Bank Limited v Commissioner of Taxation (1997) 80 FCR 352 at 362; Commissioner of Taxation v Cooling (1990) 22 FCR 42 at 52-53 (Hill J); and Macquarie Finance Limited v Commissioner of Taxation [2004] FCA 1170 ; (2004) 210 ALR 508 (Hill J) at [64]. Relevant also here is the close interconnection of all the constituent documents in the integrated international commercial transaction: cf Inland Revenue Commissioner v Europa Oil (NZ) Ltd [1971] AC 760 at 774-775.
Case: Commissioner of Taxation v Indooroopilly Children Services (Qld) Pty Ltd (2007) 158 FCR 325
Outcome: referred to
It is unnecessary to decide this aspect of the case. The parties, however, fully argued the relevant issues. I was invited by the Commissioner to provide my reasons on the issues argued even if they were not necessary for my decision. After initially submitting that I should not do so, SGB put submissions to the effect of those put by the Commissioner in this respect. I have given careful consideration to complying with the request of the parties to discuss Division 974 even if it is not necessary for a decision. I have come to the view that I should not, for three reasons. First, no separate body of facts needs to be found for the assistance of a Full Court, should I be found to have erred in my earlier analysis. Secondly, however detailed and concluded my views, they would not be essential for the reasoning underlying the orders made. They would, as obiter dicta , lack a degree of authority. Subject to conforming with the law of Australia as laid out by Parliament and as interpreted and declared by the courts as the judicial branch of government: (see Commissioner of Taxation v Indooroopilly Children Services (Qld) Pty Ltd (2007) 158 FCR 325) it is for the Commissioner and the ATO to administer the revenue legislation as they interpret it. There has been public comment made by the Commissioner, the ATO, and others, apparently doubting elements of these basal governmental separations, responsibilities and functions discussed in Indooroopilly 158 FCR 325. This is not the place to enter that debate. It is, however, appropriate to recognise that courts decide cases and, in so doing, declare the law, including the meaning and effect of laws of the Parliament. To the extent that my views on Division 974 would be clearly obiter dicta, they may create an unnecessary impediment to the administration of the revenue legislation if they are not part of the ratio decidendi of the decision. Thirdly, the business community and capital markets, likewise, will have my views that are not part of the ratio decidendi affecting questions of advice and judgment in circumstances where the views of the Commissioner and the ATO can be sought by ruling or assessment, and, thereafter, be directly and specifically tested and ruled upon in a way binding on both the revenue and the taxpayer. 100 I should add that I have come to these views having had the benefit of the thorough and careful submission of counsel for both sides (for which I express my gratitude) and having considered these submissions in considerable detail. 101 As to the evidence requiring a ruling I set out my rulings and my reasons (in brief).
Case: Commissioner of Taxation v Myer Emporium Ltd [1987] HCA 18 ; (1986) 163 CLR 199
Outcome: referred to
Equally impermissible is to recast the transaction entered between the parties and substitute an economic equivalent: CityLink Melbourne 141 FCR at 40 and Commissioner of Taxation v Myer Emporium Ltd [1987] HCA 18 ; (1986) 163 CLR 199 at 217. Some of the submissions of the Commissioner tended towards such an approach. It is not permissible, for instance, to take as the subject of characterisation what is "really happening", being the payment of money by SGB, nominally as "interest", but in truth as the payment to capital securities holder of their dividend. That is not the legal relationship that has been lawfully set up. The payment to be the subject of characterisation is the payment of interest on the Debenture under the Indenture. The task is to decide, from a business and practical perspective, giving weight to the nature of the rights and obligations of the parties created by the relevant transaction documents, and placing the Indenture and the rights and obligations arising therefrom in their complete relevant legal and business context, whether the outgoings of interest bear the character of capital or revenue.
Case: Commissioner of Taxation v South Australia Battery Makers Pty Ltd [1978] HCA 32 ; (1978) 140 CLR 645
Outcome: discussed
That the process of characterisation is approached from a practical and business point of view does not provide licence to ignore the legal relationship actually formed by the terms of the transaction. Subject to considerations of sham (not relevant here) and to considerations that the legal form agreed on may have been varied or may be incomplete (also not relevant here), the process of characterisation, from a practical and business point of view, is one that is directed to the legal rights and obligations created by the parties in their transaction (here, in the constituent documents). This was made clear in the judgments of Gibbs ACJ and Stephen and Aickin JJ in Federal Commissioner of Taxation v South Australia Battery Makers Pty Ltd [1978] HCA 32 ; (1978) 140 CLR 645 at 659-660 and 662, respectively. It is also made clear in the reasons of the Full Court in CityLink Melbourne Limited v Commissioner of Taxation [2004] FCAFC 272 ; (2004) 141 FCR 69 at [40] - [45] ; and in the reasons of Hill J (with whom Davies and Heerey JJ agreed) in Australia &amp; New Zealand Savings Bank v Commissioner of Taxation [1992] FCA 493 ; (1993) 42 FCR 535 at 560. 82 The conclusion that I have reached is supported by South Australian Battery Makers [1978] HCA 32 ; 140 CLR 645. As Gibbs ACJ said at 655: If on the other hand one advantage sought by the outgoings was the acquisition of a capital asset (the land and buildings), the fact that the payments were called 'rent', and were made periodically, would not necessarily prevent them from being in part outgoings of a capital nature. 83 There, the capital advantage was not obtained by the taxpayer; here it was. The benefit of the arrangement and integrated structure of which the Indenture and Debenture were an integral and integrated part inured to the benefit of SGB by the strengthening of the capital structure of SGB and its group in a manner that was acceptable to the RBA. The advantage sought and obtained by the interest payments was the assistance in the creation and maintenance of that business capital structure for the long-term structural benefit of SGB. 84 Division 974 was introduced into the 1997 Act by the Debt/Equity Act. The Debt/Equity Provisions sought to set out a statutory regime for the treatment of the deductibility of returns on financial interests issued by a company. In particular, these provisions sought to identify new rules governing what is an equity interest and what is a debt interest for tax purposes, based on the economic substance of the rights and obligations of the arrangement, rather than their legal form. A premise underlying the rationale of the provisions was the likely deductibility of interest on what is a debt in legal form.
Case: Federal Coke Company v Federal Commissioner of Taxation (1997) 15 ALR 449
Outcome: referred to
At times, the submissions put on behalf of SGB appeared to combine the undoubtedly correct (at least at a sufficient level of generality) propositions that the contractual and legal rights must be analysed and that the separateness of corporate entities must be recognised: The Federal Coke Company v Federal Commissioner of Taxation (1997) 15 ALR 449 at 459 per Bowen CJ and Commissioner of Taxation v Asiamet (No 1) Resources Pty Ltd [2004] FCAFC 73 ; (2004) 137 FCR 146 at [148] - [165] , in aid of a different objective, that is to have the interest payable under the Debenture analysed by reference primarily, if not wholly, to the rights and obligations created under the Indenture, without regard to the whole of the surrounding arrangement. Such an approach is impermissible. It ignores the essential requirement to view the legal rights and obligations created by the parties, and payments and outgoings made thereunder, in their whole legal and commercial context, in order that the characterisation, from a business and practical point of view, of the payment or outgoing by reference to the relevant legal relationship can be undertaken. Legal form is the subject of the characterisation; it is not the sole source of the answer to that process of characterisation: cf Parsons RW op cit [2.421]-[2.422]. The requirement to look at the whole legal and business context is not denied by what was said by Deane and Sheppard JJ in Ure v Federal Commission of Taxation (1981) 34 ALR 237 at 249, as appeared to be put by SGB.
Case: GP International Pipecoaters Pty Limited v Commissioner of Taxation [1990] HCA 25 ; (1990) 170 CLR 124
Outcome: referred to
It is clear that the character of the advantage sought by the making of the expenditure is the chief, if not critical, factor in determining the character of what was paid: The Colonial Mutual Life Assurance Society Limited v The Federal Commissioner of Taxation [1953] HCA 68 ; (1953) 89 CLR 428 at 454; GP International Pipecoaters Pty Limited v Commissioner of Taxation [1990] HCA 25 ; (1990) 170 CLR 124 at 137; Mount Isa Mines Limited v Commissioner of Taxation [1992] HCA 62 ; (1992) 176 CLR 141 at 147-149; Commissioner of Taxation v CityLink Melbourne Limited [2006] HCA 35 ; (2006) 228 CLR 1 at [1] , [3], [76], [77] and [148]; and BP Australia 112 CLR at 394 and 398.
Case: Hallstroms Proprietary Limited v The Federal Commissioner of Taxation [1946] HCA 34 ; (1946) 72 CLR 634
Outcome: discussed
In Hallstroms Proprietary Limited v The Federal Commissioner of Taxation [1946] HCA 34 ; (1946) 72 CLR 634 , Dixon J incorporated his reasons in Sun Newspapers 61 CLR at 359-363 and elaborated upon them saying the following at 646, 647 and 648: As a prefatory remark it may be useful to recall the general consideration that the contrast between the two forms of expenditure corresponds to the distinction between the acquisition of the means of production and the use of them; between establishing or extending a business organization and carrying on the business; between the implements employed in work and the regular performance of the work in which they are employed; between an enterprise itself and the sustained effort of those engaged in it. ... What is an outgoing of capital and what is an outgoing on account of revenue depends on what the expenditure is calculated to effect from a practical and business point of view, rather than upon the juristic classification of the legal rights, if any, secured, employed or exhausted in the process. [emphasis added]