mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Re Wakim; Ex parte McNally (1999) 198 CLR 511
Outcome: cited
However, there is no Commonwealth legislation conferring jurisdiction on the Federal Court to hear and determine criminal matters of the kind purportedly instituted by Mr Vescio. The Court therefore lacks jurisdiction to hear and determine the criminal prosecutions initiated by him: cf Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), s 4(2) (confined to civil matters); Re Wakim; Ex parte McNally (1999) 198 CLR 511 (holding s 4(2) to be unconstitutional). 8 In these circumstances, the appropriate order is that the proceedings be dismissed for want of jurisdiction. Mr Vescio must pay the costs of the Defendants. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville. Associate: Dated: 13 March 2008 The Prosecutor appeared in person Counsel for the Defendants: C Lonergin Solicitor for the Defendants: Crown Solicitor Date of Hearing: 12 March 2008 Date of Judgment: 13 March 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/332.html
Case: Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510
Outcome: referred to
The statements of principle in Gacic, both in the Court of Appeal and the High Court, are consistent with the holding of a Full Court of this Court that a necessary element of an action in defamation by a trading corporation is that it has sustained injury to its reputation ' in the way of its trade or business ': Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510 , at 586-587, per Neaves J; at 599-603, per Pincus J; at 560, per Smithers J (agreeing). The Court rejected the opinion expressed by Mahoney JA (dissenting) in Andrews v John Fairfax &amp; Sons Ltd [1980] 2 NSWLR 225, at 255, that a trading corporation may recover damages for ' injury to reputation as such '. 51 None of these cases considered the significance of taxation in assessing the damages to be awarded to a trading corporation for defamation. That issue was addressed in Rubber Improvements. In that case, two juries had awarded substantial damages for defamation in favour of a trading corporation. The plaintiff corporation did not plead that it had sustained special damage and adduced little or no evidence of financial loss. In determining that the awards were excessive, Lord Reid, in a frequently cited judgment, held that a damages award for libel, insofar as it compensates for loss of income, should allow for the corporation's notional obligation to pay income tax, had the lost income been earned.
Case: Federal Commissioner of Taxation v Spedley Securities Ltd (1988) 19 ATR 938
Outcome: cited
I acknowledge that the dividing line between payments that bear the character of income and those that do not can be fine: cf Federal Commissioner of Taxation v Spedley Securities Ltd (1988) 19 ATR 938 (where the Full Federal Court held that a lump sum payment of $200,000 to a merchant bank for the termination of a contract included compensation for injury to goodwill and was therefore not assessable income). I recognise, too, that the law in Australia could perhaps have taken a different turn: cf McGregor on Damages (17th ed, 2003), at [14-029] (arguing that it is not clear that ' damages specifically awarded for loss of business profits ', particularly to a company, would not be taxable in the defamed plaintiff's hands, unless the business was brought down by the defamation). But the course of authority in this country governing the nature of SRSC's claim and of the damages awarded to it strongly suggests that the Sum should not be characterised as income according to ordinary concepts. 78 SRSC's appeal against the objection decision made by the Commissioner should be allowed. The Commissioner should be directed to excise the Sum from SRSC's taxable income for the 2004 year. The Commissioner must pay SRSC's costs of the appeal. I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville. Associate: Dated: 9 April 2008 Counsel for the Applicant: Mr K Smark SC with Ms D McBride Solicitor for the Applicant: Mallesons Stephen Jacques Counsel for the Respondent: Mr J Hmelnitsky Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 19 March 2008 Date of Judgment: 9 April 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/454.html
Case: Federal Commissioner of Taxation v Stone [2005] HCA 21 ; (2005) 222 CLR 289
Outcome: referred to
As the joint judgment observed in Federal Commissioner of Taxation v Stone [2005] HCA 21 ; (2005) 222 CLR 289 , at 294 [8], the reference to ' income according to ordinary concepts ' in s 6 -5(1) of the ITAA is evidently to Sir Frederick Jordan's statement in Scott v Federal Commissioner of Taxation (1935) 35 SR (NSW) 215 , at 219, as follows: 'The word "income" is not a term of art, and what forms of receipts are comprehended within it, and what principles are to be applied to ascertain how much of those receipts ought to be treated as income, must be determined in accordance with the ordinary concepts and usages of mankind, except in so far as the statute states or indicates an intention that receipts which are not income in ordinary parlance are to be treated as income, or that special rules are to be applied for arriving at the taxable amount of such receipts.'
Case: Gill v Australian Wheat Board [1980] 2 NSWLR 795
Outcome: referred to
If the Commissioner's contentions in the present proceedings are correct, SRSC may find itself in the position of having to pay income tax on a damages award already reduced to take account of its notional income tax liability. Perhaps more significantly, this Court would have reached a conclusion inconsistent with that reached by the Supreme Court in a judgment that has not been the subject of an appeal. Courts have adverted to this problem on other occasions and suggested that it should be open to join the Commissioner as a party in proceedings in which damages are to be assessed: Gill v Australian Wheat Board [1980] 2 NSWLR 795, at 797, per Rogers J; Provan v HCL Real Estate Ltd (1992) 24 ATR 238 , at 247, per Rolfe J. This case may be a further illustration of the need to consider procedural changes designed to enable a court to determine the impact of taxation on a damages award once and for all and to encourage the parties to take steps in an appropriate case to ensure that this is done.
Case: GP International Pipecoaters Pty Ltd v Federal Commissioner of Taxation [1990] HCA 25 ; (1990) 170 CLR 124
Outcome: referred to
Whether a particular receipt is income on ordinary principles depends upon the character of the receipt in the hands of the taxpayer: GP International Pipecoaters Pty Ltd v Federal Commissioner of Taxation [1990] HCA 25 ; (1990) 170 CLR 124 , at 136, per curiam ; The Federal Coke Co Ltd v Federal Commissioner of Taxation (1977) 34 FLR 375, at 388, per Bowen CJ, FCT v Stone, at 296 [16]. The question in the present case therefore turns on the character of the Sum received by SRSC in the 2004 year.
Case: John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28 ; (2007) 235 ALR 402
Outcome: discussed
Section 5 of the Defamation Act 1958 (NSW) defined an actionable defamation for which proceeding could be brought in New South Wales, including a defamation comprising imputations by which a person was likely to be injured in his or her trade or profession. The Defamation Act 1958 (NSW) was, however, repealed by s 4(1) of the Defamation Act 1974 (NSW). Thereafter, the law relating to defamation was as if the earlier Act: 'had not been passed and the common law and the enacted law ... shall have effect accordingly' (s 4(2)). See Sungravure Pty Ltd v Middle East Airlines Airliban SAL [1975] HCA 6 ; (1975) 134 CLR 1 ; John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28 ; (2007) 235 ALR 402 , at 422-423 [77]-[78], per Kirby J (dissenting). SRSC's defamation claim was brought pursuant to the provisions of the Defamation Act 1974 (NSW).
Case: Liftronic Pty Ltd v Commissioner of Taxation (1996) 66 FCR 175
Outcome: discussed
Mr Hmelnitsky submitted that this case should be regarded as governed by the principle that damages representing trading profit which would have been earned but for the defendants' tortious conduct are to be regarded as a trading receipt. He relied particularly on two cases: London and Thames Haven Oil Wharfs Ltd v Attwool [1967] 2 All ER 124, and Liftronic Pty Ltd v Commissioner of Taxation (1996) 66 FCR 175. 74 Thames Haven was followed by Foster J in Liftronic. In that case, Liftronic purchased lift equipment from Hyundai which proved to be defective. It succeeded in an action for breach of contract. The damages included $2.238 million for ' loss of profits ' for a period of six years. No deduction was made for the incidence of income tax on the lost profits (see at 194). Foster J held (at 197) that the breaches of contract did not destroy the goodwill or earning capacity of Liftronic. There was a mere restriction of trading opportunities, creating a ' hole in profits ' that the award of damages was intended to fill. Hence the amounts awarded as loss of profits was properly to be characterised as income in accordance with ordinary concepts. 76 The award made by Studdert J was not merely intended to fill a ' hole in [SRSC's] profits', as in Liftronic. Rather it was intended to compensate SRSC for the injury to its reputation; it was not an award of damages for loss of profits as such. Thames Haven was also a different case to the present. Not only was there no question of any injury to the plaintiff's reputation, but the award was specifically made to compensate for loss of profits by reason of the unusability of the jetties.
Case: London and Thames Haven Oil Wharfs Ltd v Attwool [1967] 2 All ER 124
Outcome: distinguished
Mr Hmelnitsky submitted that this case should be regarded as governed by the principle that damages representing trading profit which would have been earned but for the defendants' tortious conduct are to be regarded as a trading receipt. He relied particularly on two cases: London and Thames Haven Oil Wharfs Ltd v Attwool [1967] 2 All ER 124, and Liftronic Pty Ltd v Commissioner of Taxation (1996) 66 FCR 175. 73 In Thames Haven, a company owned jetties which were damaged by the negligence of the operators of a tanker. The company sustained loss in the form of physical damage to the jetty and consequential loss in the form of lost profits during the period of 380 days the jetty was unusable. The Court of Appeal held that the damages for physical injury were quite separate from the damages recovered in respect of the loss of profitable use of the jetty. The latter were held to be taxable as a trading receipt. Diplock LJ stated the relevant rule as follows (at 134): 'Where, pursuant to a legal right, a trader receives from another person compensation for the trader's failure to receive a sum of money which, if it had been received, would have been credited to the amount of profits (if any) arising in any year from the trade carried on by him at the time when the compensation is so received, the compensation is to be treated for income tax purposes in the same way as that sum of money would have been treated if it had been received instead of the compensation.' No reference was made to Gourley. 74 Thames Haven was followed by Foster J in Liftronic. In that case, Liftronic purchased lift equipment from Hyundai which proved to be defective. It succeeded in an action for breach of contract. The damages included $2.238 million for ' loss of profits ' for a period of six years. No deduction was made for the incidence of income tax on the lost profits (see at 194). Foster J held (at 197) that the breaches of contract did not destroy the goodwill or earning capacity of Liftronic. There was a mere restriction of trading opportunities, creating a ' hole in profits ' that the award of damages was intended to fill. Hence the amounts awarded as loss of profits was properly to be characterised as income in accordance with ordinary concepts. 76 The award made by Studdert J was not merely intended to fill a ' hole in [SRSC's] profits', as in Liftronic. Rather it was intended to compensate SRSC for the injury to its reputation; it was not an award of damages for loss of profits as such. Thames Haven was also a different case to the present. Not only was there no question of any injury to the plaintiff's reputation, but the award was specifically made to compensate for loss of profits by reason of the unusability of the jetties.
Case: McLaurin v Federal Commissioner of Taxation [1961] HCA 9 ; (1961) 104 CLR 381
Outcome: referred to
Thirdly, the House of Lords in Rubber Improvements was concerned with undifferentiated lump sum jury awards that, as Lord Reid noted, were not necessarily confined to compensation for loss of income by the plaintiff corporation. Their Lordships were not concerned with a case like the present, where the damages award was made by a Judge sitting alone expressly by reference to the corporation's loss of income attributable to the defamatory publications. It appears to have been common ground before me that receipt of an undifferentiated award of damages of the kind considered in Rubber Improvements would not be regarded as assessable income in Australia. This is because a lump sum award of damages is ordinarily treated as a single, undissected amount which must be considered as a whole: McLaurin v Federal Commissioner of Taxation [1961] HCA 9 ; (1961) 104 CLR 381 , at 391 per curiam.
Case: Parsons v B.N.M. Laboratories Ltd [1964] 1 QB 95
Outcome: cited
Gibbs J pointed out that the principle in Gourley is not confined to damages for personal injury. He specifically noted that in Rubber Improvements the House of Lords had applied the principle to ' the assessment of damages for loss of profit arising from libel '. His Honour added (at 223-224) that: 'Speaking generally, the principle will apply only where the earnings or profits lost would have been taxable if the plaintiff had received them but the damages awarded to compensate the plaintiff are not taxable: see Parsons v B.N.M. Laboratories Ltd [[1964] 1 QB 95, at 124-126, 133-135] and Groves v United Pacific Transport Pty Ltd and Thompson [[1965] Qd R 62 , at 63].'
Case: Provan v HCL Real Estate Ltd (1992) 24 ATR 238
Outcome: referred to
If the Commissioner's contentions in the present proceedings are correct, SRSC may find itself in the position of having to pay income tax on a damages award already reduced to take account of its notional income tax liability. Perhaps more significantly, this Court would have reached a conclusion inconsistent with that reached by the Supreme Court in a judgment that has not been the subject of an appeal. Courts have adverted to this problem on other occasions and suggested that it should be open to join the Commissioner as a party in proceedings in which damages are to be assessed: Gill v Australian Wheat Board [1980] 2 NSWLR 795, at 797, per Rogers J; Provan v HCL Real Estate Ltd (1992) 24 ATR 238 , at 247, per Rolfe J. This case may be a further illustration of the need to consider procedural changes designed to enable a court to determine the impact of taxation on a damages award once and for all and to encourage the parties to take steps in an appropriate case to ensure that this is done.
Case: Scott v Federal Commissioner of Taxation (1935) 35 SR (NSW) 215
Outcome: referred to
As the joint judgment observed in Federal Commissioner of Taxation v Stone [2005] HCA 21 ; (2005) 222 CLR 289 , at 294 [8], the reference to ' income according to ordinary concepts ' in s 6 -5(1) of the ITAA is evidently to Sir Frederick Jordan's statement in Scott v Federal Commissioner of Taxation (1935) 35 SR (NSW) 215 , at 219, as follows: 'The word "income" is not a term of art, and what forms of receipts are comprehended within it, and what principles are to be applied to ascertain how much of those receipts ought to be treated as income, must be determined in accordance with the ordinary concepts and usages of mankind, except in so far as the statute states or indicates an intention that receipts which are not income in ordinary parlance are to be treated as income, or that special rules are to be applied for arriving at the taxable amount of such receipts.'
Case: South Hetton Coal Co v North-Eastern News Association [1894] 1 QB 133
Outcome: discussed
In South Hetton Coal Co v North-Eastern News Association [1894] 1 QB 133, Lord Esher MR held (at 139) that a corporation can be defamed by statements: 'with regard to their mode of carrying on business, such as to lead people of ordinary sense to the opinion that they conduct their business badly and inefficiently.' See also at 141, per Lopes LJ (a corporation may not maintain an action for anything reflecting on it personally, but can maintain an action for a libel ' reflecting on the management of [its] trade or business '); at 145, per Kay LJ. 47 It was also held in South Hetton that an action will lie without proof of special damage and that the quantum of damages is at large: at 139, per Lord Esher MR; at 143, per Lopes LJ; at 148, per Kay LJ. In Australia, South Hetton has been accepted as accurately stating the law: Barnes &amp; Co Ltd v Sharpe [1910] HCA 26 ; (1910) 11 CLR 462 , at 473-474, per Griffith CJ; at 478-479, per O'Connor J; at 485, per Higgins J.
Case: Sungravure Pty Ltd v Middle East Airlines Airliban SAL [1975] HCA 6 ; (1975) 134 CLR 1
Outcome: cited
Section 5 of the Defamation Act 1958 (NSW) defined an actionable defamation for which proceeding could be brought in New South Wales, including a defamation comprising imputations by which a person was likely to be injured in his or her trade or profession. The Defamation Act 1958 (NSW) was, however, repealed by s 4(1) of the Defamation Act 1974 (NSW). Thereafter, the law relating to defamation was as if the earlier Act: 'had not been passed and the common law and the enacted law ... shall have effect accordingly' (s 4(2)). See Sungravure Pty Ltd v Middle East Airlines Airliban SAL [1975] HCA 6 ; (1975) 134 CLR 1 ; John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28 ; (2007) 235 ALR 402 , at 422-423 [77]-[78], per Kirby J (dissenting). SRSC's defamation claim was brought pursuant to the provisions of the Defamation Act 1974 (NSW).
Case: The Federal Coke Co Ltd v Federal Commissioner of Taxation (1977) 34 FLR 375
Outcome: referred to
Whether a particular receipt is income on ordinary principles depends upon the character of the receipt in the hands of the taxpayer: GP International Pipecoaters Pty Ltd v Federal Commissioner of Taxation [1990] HCA 25 ; (1990) 170 CLR 124 , at 136, per curiam ; The Federal Coke Co Ltd v Federal Commissioner of Taxation (1977) 34 FLR 375, at 388, per Bowen CJ, FCT v Stone, at 296 [16]. The question in the present case therefore turns on the character of the Sum received by SRSC in the 2004 year.
Case: Whitaker v Commissioner of Taxation (1998) 82 FCR 261
Outcome: cited
The decision in Groves v United Pacific Transport, given that it was approved in Atlas v Tiles and Cullen v Trappell , establishes that an award of damages for loss of earning capacity is not taxable even if calculated precisely by reference to earnings lost prior to the date of the trial. The principle applies to an award of pre-judgment interest, which has been held to have the character of a receipt of a capital nature: Whitaker v Commissioner of Taxation (1998) 82 FCR 261. The reason is that the award of an interest is an integral and essential element in the compensation for the plaintiff's list or diminished earning capacity: at 264, per Black CJ.
Case: Blount Inc v Registrar of Trade Marks [1998] FCA 440 ; (1998) 83 FCR 50
Outcome: cited
issues raised in the appeal, to be considered afresh by this Court ( Blount Inc v Registrar of Trade Marks [1998] FCA 440 ; (1998) 83 FCR 50 at 59) cover the same issues as faced by the Registrar. They are, broadly: Is Pioneer Computers a "person aggrieved", as required by s 92(1) of the Act as it stood at the time when the non-use applications were filed? What use has Pioneer KK established of the Pioneer KK marks on the removal goods and the removal services? What properly comes within the description of the expression "computer peripheral devices"? Would there be confusion if the registrations for the Pioneer KK marks were amended by way of removal of the removal goods and the removal services, or conversely, if the registrations for the Pioneer KK marks were maintained in their present form? If the Pioneer KK marks are liable to be removed under s 92(4)(a) or s 92(4)(b) of the Act in respect of the removal goods and the removal services, should the discretion available under s 101(3) of the Act be exercised? Before turning to a consideration of the Pioneer KK marks, it is useful to identify the parties. Pioneer Computers Pioneer Computers was incorporated on 23 December 1996 and has traded under that name since that date. Pioneer Computers is the manufacturer and vendor of computer products and services and has conducted business under its corporate name, Pioneer Computers Australia Pty Limited, since December 1996. It has used the trade mark PIONEER in Australia in relation to desktop computers, notebook computers, servers and other computer related goods and in relation to installation, repair and support services for computers. It uses the mark PIONEER on its website, on invoices, on stationery and on publicly distributed promotional material. Most of the computers that Pioneer Computers sells are built-to-order and, since late 1998, those built-to-order computers have been able to be ordered online via Pioneer Computers' website, www.pioneercomputers.com.au . An appeal from a decision of the Registrar of Trade Marks is in the Court's original jurisdiction. None of the powers of the Court under s 197 of the Act affect the s 92 application, which goes to the jurisdiction of the Court to hear and determine an application for removal of a trade mark. The hearing is a "hearing de novo" where the judge reviewing the decision of the Registrar begins afresh and exercises any discretion exercised by the Registrar. The parties may adduce evidence as provided for in s 197 of the Act which evidence may include evidence not before the Registrar (see discussion in Totev v Sfar [2008] FCAFC 35 ; (2008) 167 FCR 193 by Emmett J at [12] and [13]; Blount at 59).