mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Minister for Immigration and Multicultural Affairs v Sharma [1999] FCA 31 ; (1999) 90 FCR 513
Outcome: referred to
Authority submitted that there is a clear line of authority that in cancellation cases, such as the present, a review Tribunal is required to have regard to the circumstances at the time of the decision and not those that followed it: Freeman v Secretary, Department of Social Security (1988) 19 FCR 342; Hospital Benefit Fund of WA v Minister for Health, Housing and Community Services (1992) 39 FCR 225; Nong v Minister for Immigration and Multicultural Affairs [2000] FCA 1575 ; (2000) 106 FCR 257; Minister for Immigration and Multicultural Affairs v Sharma [1999] FCA 31 ; (1999) 90 FCR 513; and Aged Care Standards and Accreditation Agency Ltd v Kenna Investments Pty Ltd [2004] FCA 843 ; (2004) 138 FCR 428. The Authority observed that this analysis was also endorsed and applied by Weinberg J in Sharma at 524 526 [61] [63] and, in the context of review of a decision to cancel a visa under the Act, by Katz J in Nong (albeit through reference to Weinberg J in Sharma , who applied Freeman ) at [29] [31]: '[29] As I understood the submission, at least in the form in which it appeared in Mr Nong's written outline of submissions filed in advance of the hearing before me, it was that the MRT had erred in not concluding that, on 6 January 2000, the date of its decision, Mr Nong was in compliance with condition 8202. [30] That submission may be dealt with quite briefly. [31] The MRT was not concerned, in making its decision, with the issue whether Mr Nong was or was not in compliance with condition 8202 on 6 January 2000, the date of its own decision. Rather, it was concerned with the issue whether Mr Nong had or had not been in compliance with condition 8202 on 30 March 1999, the date of the delegate's decision: see, for example, the discussion of the nature of the review function of the MRT's predecessor in Minister for Immigration and Multicultural Affairs v Sharma [1999] FCA 31 ; (1999) 90 FCR 513 at 524-526 [61] - [63] (Weinberg J). (Emphasis added.)'
Case: Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82
Outcome: applied
as Sackville J observed in Lu (at [64]), the correct approach is that stated in Stead v State Government Insurance Commission [1986] HCA 54 ; (1986) 161 CLR 141 at 147 and adopted in Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 the test is whether the applicant could have been deprived of the possibility of a successful outcome by the decision-maker's failure to observe the requirements of the statute: 'If so, the jurisdictional error could have had a bearing on the outcome and the applicant is not to be denied relief on the basis that the error was insignificant ... The question is not whether the decision-maker would probably have realised the same result even if the ... consideration had [not] been taken into account'.
Case: Stead v State Government Insurance Commission [1986] HCA 54 ; (1986) 161 CLR 141
Outcome: referred to
as Sackville J observed in Lu (at [64]), the correct approach is that stated in Stead v State Government Insurance Commission [1986] HCA 54 ; (1986) 161 CLR 141 at 147 and adopted in Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 the test is whether the applicant could have been deprived of the possibility of a successful outcome by the decision-maker's failure to observe the requirements of the statute: 'If so, the jurisdictional error could have had a bearing on the outcome and the applicant is not to be denied relief on the basis that the error was insignificant ... The question is not whether the decision-maker would probably have realised the same result even if the ... consideration had [not] been taken into account'.
Case: Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1619
Outcome: followed
In Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1619 Mansfield J referred to the judgment of the Full Court in SBAH and to other authorities concerning the situation of a child on whose behalf, and for whose benefit, an adult had commenced a proceeding. Having done so, his Honour dispensed with compliance with the "formal steps" by which such an appointment is ordinarily made and appointed the father of the child applicant in that case as her next friend. It would appear that the dispensation granted by his Honour extended to compliance with O 43 r 5(2).
Case: Al Raied v Minister for Immigration and Multicultural Affairs [2000] FCA 1357 
Outcome: cited
In Al Raied v Minister for Immigration and Multicultural Affairs [2000] FCA 1357 at [6] I deprecated the artificiality of a statement such as that purportedly made by SZJXW in this matter. I endorse the observation subsequently made by Madgwick J in SBAH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 426 ; (2002) 126 FCR 552 at [9] . His Honour there said: ...there appears to be a need for legislative attention to the difficult and sensitive problem of dealing fairly and practically with the position, at various points primary decision, the Refugee Review Tribunal review, and judicial review of a child present in Australia who may be in need of asylum for reasons recognised by the relevant Convention.
Case: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
Outcome: followed
The Federal Magistrate rejected the claim that the Tribunal was obliged to notify SZJXW pursuant to s 424A of the Act that it had information, obtained from its own observations, that neither she nor her father had the appearance of persons of Caucasian ethnicity. His Honour relied on SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18] in concluding that the Tribunal's observations were not "information" within the meaning of s 424A. His Honour was, I consider, right to do so. In any event, as indicated above, the Tribunal rejected for other reasons the claim that SZJXW's father had suffered harm because he had the appearance of a Caucasian. In the circumstances it would be inappropriate to grant the appellant any relief in respect of a breach of s 424A of the Act even if it be assumed that there was such a breach. 24 Ground III also fails. 25 The appeal will be dismissed. I will hear the parties as to costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson. Associate: Dated: 28 February 2008 Counsel for the Appellant: The appellant appeared by her next friend Counsel for the Respondent: Mr P Cleary Solicitor for the Respondent: Clayton Utz Date of Hearing: 13 February 2008 Date of Judgment: 28 February 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/143.html
Case: Atlantic Sugar Refineries v Minister of National Revenue [1949] CTC 196
Outcome: cited
Echo Bay Mines Ltd v R [1992] 3 CF 707, a Canadian Trial Court decision, was cited but was of little assistance. It was a case concerned with the calculation of income tax. The Court there held that the price received by the taxpayer for the silver it produced was the sum of receipts from delivery of actual production and from settlement of forward sales contracts. The judge applied observations made in the Supreme Court of Canada in Atlantic Sugar Refineries v Minister of National Revenue [1949] CTC 196, another income tax case concerned with whether profits on sugar futures formed part of income. In that case Locke J (Kellock J concurring) said (at [12]): In trades where natural products are purchased in large quantities, hedging is a common, and in some cases, a necessary practice, and the cost of such operations in trades of this nature is properly allowable as an operating expense of the business. Where, as in the present case, the trader elects to close out his short sales and take a profit, this is, in my opinion, properly classified as profit from carrying on the trade. In Echo Bay Mines [1992] 3 CF 707, MacKay J said (at 733): I conclude that the price received by the plaintiff for the silver it produced was the sum of receipts from delivery of actual production and from settlement of forward sales contracts. The business of the plaintiff was silver production. In these circumstances where the plaintiff participated in forward sales contracts and settlements, however, as a hedge against price fluctuations in silver, and in which the commodity traded was silver futures, I do not conclude that the plaintiff was involved in futures speculation for investment purposes. There was a clear business purpose in its sales and settlement of silver futures contracts, a purpose integrated with its sales of product to yield income; the plaintiff was trying to obtain an assured price for the sale of the silver it produced. ... Here the forward sales transactions were in respect of the same commodity as the plaintiff's production; both were, in my view, integral aspects of the plaintiff's business of producing silver, and returns from these activities were income from production of metals within Regulation 1204(1).
Case: Australian Gas Light Company v Australian Competition and Consumer Commission [2003] FCA 1525 ; (2003) 137 FCR 317
Outcome: cited
One of the cases cited was Australian Gas Light Company v Australian Competition and Consumer Commission [2003] FCA 1525 ; (2003) 137 FCR 317 in which I said (at [382]): Although there are some loose, but not entirely appropriate, analogies between the derivative contract and a form of insurance in my opinion, for present purposes, the derivative contracts ought to be regarded as an integral part of the pricing and payment arrangements between generators and retailers in relation to the underlying product, which is electrical energy, and which they deal with "as if" it had been sold from supplier to retailer. That observation was made in a statutory context quite different from the present. The case was concerned with whether a proposed acquisition of an interest in an electricity base load generator by an electricity retailer would have, or be likely to have, the effect of substantially lessening competition in a market in Australia. The question of the relationship between derivative contracts and sale of the relevant commodity which, in that case was electricity, was relevant to the question whether there were separate markets to be considered, one for the purchase and sale of derivatives and the other for the sale of electricity. The observation which was quoted from the judgment in that case reflects what Professor Garnaut had to say about the way in which an economist would regard hedging expenses in relation to sales. For the reasons which I have already outlined in discussing his evidence, that kind of equation does not assist in the construction of s 24(a) and (b).
Case: Australian Competition and Consumer Commission v Maritime Union of Australia [2001] FCA 1549 ; (2001) 114 FCR 472
Outcome: cited
As I said in the interlocutory decision in Woodside Energy [2006] FCA 1303 ; 155 FCR 357 at 374, the words "in relation to" and similar terms such as "in respect of" or "in connection with" or just "in" have been considered in many cases and many contexts. All of them indicate a necessary connection between two subject matters which may be activities, events, persons or things. The nature and closeness or remoteness of the connection sufficient to answer the statutory description depends upon its context. The term "in respect of" was said to "[gather] meaning from the context in which it appears ...": Workers' Compensation Board (Qld) v Technical Products Pty Ltd [1988] HCA 49 ; (1988) 165 CLR 642 at 653-4 per Deane, Dawson and Toohey JJ. The term "in relation to" has been called a "prepositional phrase" which is "indefinite" and which "subject to any contrary indication derived from its context or drafting history ... requires no more than a relationship whether direct or indirect between two subject matters": O'Grady v Northern Queensland Co Ltd [1990] HCA 16 ; (1990) 169 CLR 356 at 376 (McHugh J). As the present case illustrates the extent of the relationship required depends upon the context in which the words are used. See also Australian Competition and Consumer Commission v Maritime Union of Australia [2001] FCA 1549 ; (2001) 114 FCR 472 at 482. Context and purpose are everything in the construction of such indefinite phrases as "in relation to". The citation of authorities, a number of which were canvassed in argument, is of limited assistance where they relate to different statutory settings.
Case: Boral Besser Masonry Ltd v Australian Competition and Consumer Commission [2003] HCA 5 ; (2003) 215 CLR 374
Outcome: cited
Debates about the application and purpose of s 46 of the Trade Practices Act 1974 (Cth) concerning abuse of market power, illustrate the point. On one view the proper purpose of s 46 as enacted was to protect competition rather than competitors: Melway Publishing Pty Ltd v Robert Hicks Pty Ltd [2001] HCA 13 ; (2001) 205 CLR 1 at 13; Boral Besser Masonry Ltd v Australian Competition and Consumer Commission [2003] HCA 5 ; (2003) 215 CLR 374. Nevertheless the section has been subject to amendment designed to protect the interests of small business rather than the competitive process. The High Court has observed that statutes sometimes embody responses to "shifting and contradictory positions" taken by a range of interest holders in legislative outcomes and expressing "an inarticulate (or at least not publicly disclosed) compromise": Stevens v Kabushiki Kaisha Sony Computer Entertainment (2005) 224 CLR 193 at [32].
Case: Melway Publishing Pty Ltd v Robert Hicks Pty Ltd [2001] HCA 13 ; (2001) 205 CLR 1
Outcome: cited
Debates about the application and purpose of s 46 of the Trade Practices Act 1974 (Cth) concerning abuse of market power, illustrate the point. On one view the proper purpose of s 46 as enacted was to protect competition rather than competitors: Melway Publishing Pty Ltd v Robert Hicks Pty Ltd [2001] HCA 13 ; (2001) 205 CLR 1 at 13; Boral Besser Masonry Ltd v Australian Competition and Consumer Commission [2003] HCA 5 ; (2003) 215 CLR 374. Nevertheless the section has been subject to amendment designed to protect the interests of small business rather than the competitive process. The High Court has observed that statutes sometimes embody responses to "shifting and contradictory positions" taken by a range of interest holders in legislative outcomes and expressing "an inarticulate (or at least not publicly disclosed) compromise": Stevens v Kabushiki Kaisha Sony Computer Entertainment (2005) 224 CLR 193 at [32].
Case: O'Grady v Northern Queensland Co Ltd [1990] HCA 16 ; (1990) 169 CLR 356
Outcome: cited
As I said in the interlocutory decision in Woodside Energy [2006] FCA 1303 ; 155 FCR 357 at 374, the words "in relation to" and similar terms such as "in respect of" or "in connection with" or just "in" have been considered in many cases and many contexts. All of them indicate a necessary connection between two subject matters which may be activities, events, persons or things. The nature and closeness or remoteness of the connection sufficient to answer the statutory description depends upon its context. The term "in respect of" was said to "[gather] meaning from the context in which it appears ...": Workers' Compensation Board (Qld) v Technical Products Pty Ltd [1988] HCA 49 ; (1988) 165 CLR 642 at 653-4 per Deane, Dawson and Toohey JJ. The term "in relation to" has been called a "prepositional phrase" which is "indefinite" and which "subject to any contrary indication derived from its context or drafting history ... requires no more than a relationship whether direct or indirect between two subject matters": O'Grady v Northern Queensland Co Ltd [1990] HCA 16 ; (1990) 169 CLR 356 at 376 (McHugh J). As the present case illustrates the extent of the relationship required depends upon the context in which the words are used. See also Australian Competition and Consumer Commission v Maritime Union of Australia [2001] FCA 1549 ; (2001) 114 FCR 472 at 482. Context and purpose are everything in the construction of such indefinite phrases as "in relation to". The citation of authorities, a number of which were canvassed in argument, is of limited assistance where they relate to different statutory settings.
Case: Placer Dome Canada Ltd v Ontario (Minister of Finance) (2006) SCC 20
Outcome: cited
The decision of MacKay J in Echo Bay Mines [1992] 3 CF 707 was approved by the Supreme Court of Canada in Placer Dome Canada Ltd v Ontario (Minister of Finance) (2006) SCC 20. In that case the Supreme Court held that hedging transactions fixed the price for the output of a mine. It approved the reasoning of Gillese JA who dissented in the Court of Appeal of Ontario: Placer Come Canada Ltd v Ontario (Minister of Finance) (2004) 190 OAC 157. Woodside Energy relied upon a passage from the dissenting judgment of Gillese JA as supportive of the position taken by Woodside Energy. Her Honour said (at [119]): The general purpose of the Act is to tax output from a mine. However, there is no reason to refer to anything but the first type of consideration in the definition of "proceeds" if the purpose of that provision is limited to taxing output. The apparent purpose of including the second and third types of consideration is to tax gains arising from specified types of financial transactions (ie hedging, future sales or forward sales) that are related to the output of the mine. The view that hedging transactions were related to the output of the mine in that case was said by counsel for Woodside Energy to sit comfortably with the conclusion that hedge expenses can be incurred "in relation to" the sale of petroleum produced from a petroleum project.
Case: Robe River Mining Co Pty Ltd v Commissioner of Taxation (1989) 21 FCR 1
Outcome: cited
In my opinion the requirement that expenditure contemplated by s 38 is liable to be made in carrying on or providing operations, facilities and other things comprising the project is incapable of covering the hedging expenses the subject of these proceedings. The section contemplates a close connection between the expenditure and the physical activities involved in the petroleum project. Interestingly, one of the cases cited on behalf of Woodside Energy, albeit for a different purpose, was Robe River Mining Co Pty Ltd v Commissioner of Taxation (1989) 21 FCR 1 in which the Full Federal Court said: The use of the phrase "in carrying on prescribed mining operations" suggests a quite direct relationship between the expenditure and the operations, to be distinguished from the looser relationship which would be expressed by the words "in connection with" if they were used in a provision of this kind. The passage was used to support the proposition that by not using, in s 24(b), language suggesting the kind of direct connection required in the provisions under discussion in Robe River Mining Co Pty Ltd 21 FCR 1, Parliament had intended to provide for a wide range of relationships between expenses and sales for the purposes of s 24(b). As indicated above, for reasons which I have given, I do not accept that proposition. And it is plain that so far as s 38 is concerned it cannot extend to expenses of the kind in issue in this case. 277 For the preceding reasons the application will be dismissed with costs. I certify that the preceding two hundred and seventy-seven (277) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate: Dated: 10 December 2007 Counsel for the Applicant: Mr JW de Wijn QC and Mr AT Broadfoot Solicitor for the Applicant: Allens Arthur Robinson Counsel for the Respondent: Ms M Gordon SC, Mr SHP Steward and Mr A Pound Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 11, 12, 13, 14 and 15 December 2006 Date of Judgment: 10 December 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1961.html
Case: Stevens v Kabushiki Kaisha Sony Computer Entertainment (2005) 224 CLR 193
Outcome: cited
Debates about the application and purpose of s 46 of the Trade Practices Act 1974 (Cth) concerning abuse of market power, illustrate the point. On one view the proper purpose of s 46 as enacted was to protect competition rather than competitors: Melway Publishing Pty Ltd v Robert Hicks Pty Ltd [2001] HCA 13 ; (2001) 205 CLR 1 at 13; Boral Besser Masonry Ltd v Australian Competition and Consumer Commission [2003] HCA 5 ; (2003) 215 CLR 374. Nevertheless the section has been subject to amendment designed to protect the interests of small business rather than the competitive process. The High Court has observed that statutes sometimes embody responses to "shifting and contradictory positions" taken by a range of interest holders in legislative outcomes and expressing "an inarticulate (or at least not publicly disclosed) compromise": Stevens v Kabushiki Kaisha Sony Computer Entertainment (2005) 224 CLR 193 at [32].
Case: Workers' Compensation Board (Qld) v Technical Products Pty Ltd [1988] HCA 49 ; (1988) 165 CLR 642
Outcome: cited
As I said in the interlocutory decision in Woodside Energy [2006] FCA 1303 ; 155 FCR 357 at 374, the words "in relation to" and similar terms such as "in respect of" or "in connection with" or just "in" have been considered in many cases and many contexts. All of them indicate a necessary connection between two subject matters which may be activities, events, persons or things. The nature and closeness or remoteness of the connection sufficient to answer the statutory description depends upon its context. The term "in respect of" was said to "[gather] meaning from the context in which it appears ...": Workers' Compensation Board (Qld) v Technical Products Pty Ltd [1988] HCA 49 ; (1988) 165 CLR 642 at 653-4 per Deane, Dawson and Toohey JJ. The term "in relation to" has been called a "prepositional phrase" which is "indefinite" and which "subject to any contrary indication derived from its context or drafting history ... requires no more than a relationship whether direct or indirect between two subject matters": O'Grady v Northern Queensland Co Ltd [1990] HCA 16 ; (1990) 169 CLR 356 at 376 (McHugh J). As the present case illustrates the extent of the relationship required depends upon the context in which the words are used. See also Australian Competition and Consumer Commission v Maritime Union of Australia [2001] FCA 1549 ; (2001) 114 FCR 472 at 482. Context and purpose are everything in the construction of such indefinite phrases as "in relation to". The citation of authorities, a number of which were canvassed in argument, is of limited assistance where they relate to different statutory settings.
Case: ACCC v Construction, Forestry, Mining and Energy Union [2008] FCA 678
Outcome: referred to
opposed the tender of those paragraphs of the Lee Outline and the attachments, the subject of the grant of leave to use referred to in [41] above, on the ground that they were privileged, but fairly conceded that the weight of authority, in particular authority binding on me, was against its submission. The prevailing authority in this Court is in favour of the filing and service of an outline of evidence being a full waiver of privilege, such that the outline is then protected only by the implied undertaking to the Court not to use the document other than for the purpose of the proceeding without the leave of the Court: Liberty Funding Pty Ltd v Phoenix Capital Limited (2005) 218 ALR 283 at [20] [23]; Cadbury Schweppes Pty Ltd v Amcor Ltd [2008] FCA 88 ; (2008) 246 ALR 137 at [15] [19] per Gordon J; ACCC v Construction, Forestry, Mining and Energy Union [2008] FCA 678 at [122] [130] per Finn J; Australian Medi-Care Co Ltd v Hamilton Pharmaceutical Pty Ltd (No. 3) [2008] FCA 976 at [15] per Lander J. Once leave is granted to use the document, the party seeking to do so is released from the implied undertaking and may use it accordingly.