mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Plumb v Comcare [1992] FCA 595 ; (1992) 39 FCR 236
Outcome: cited
noted by Lockhart J (with whom Black CJ and Gummow J agreed) in Plumb v Comcare [1992] FCA 595 ; (1992) 39 FCR 236 at 241, the Tribunal derives its jurisdiction and many of its powers from statutes other than the AAT Act, in this case the SRC Act. The 2008 Tribunal was conducting a review of a number of reviewable decisions following applications made by the claimant, Ms Cheung, pursuant to s 64 of the SRC Act. Section 64 provides that an application to the Tribunal for review of a reviewable decision may be made by a claimant or a party affected by the decision the Commonwealth, a Commonwealth authority or a corporation that holds a licence under Part VIII of the SRC Act. A reviewable decision is a decision made, relevantly, under s 62 of the SRC Act (s 60 of the SRC Act). Section 62 relevantly provides: (1) A determining authority may, on its own motion: (a) reconsider a determination made by it; or (b) cause such a determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than the person who made, or was involved in the making of, the determination; whether or not a proceeding has been instituted or completed under this Part in respect of a reviewable decision made in relation to that determination. (2) A request to a determining authority to reconsider a determination made by it may be made by: (a) the claimant; or (b) if the determination affects the Commonwealth &#8212; the Commonwealth; or (c) if the determination affects a Commonwealth authority &#8212; that Commonwealth authority.
Case: Power v Comcare (1998) 89 FCR 514
Outcome: applied
Power v Comcare (1998) 89 FCR 514 Sackville J confirmed that the reconsideration decision-maker and the Tribunal have power to consider whether an applicant's condition has ever been causally related to his or her work. Ms Cheung does not say that the 2008 Tribunal was compelled to hold the 2001 Tribunal decision as determinative and therefore appears to accept that the 2008 Tribunal had jurisdiction to revisit the question of causation as determined by the 2001 Tribunal. However, she relies upon the existence of the 2008 Tribunal's discretion to regard the 2001 Tribunal decision as determinative and says that, in any event, it was a relevant consideration which was required to be taken into account. Ms Cheung seeks to distinguish Power on the basis that, in that case, the only prior determination had been by the determining authority and not by the Tribunal following a contested hearing of the claim. However, the Tribunal's power is enlivened upon reconsideration of a determination in accordance with s 62 of the SRC Act. As Finn J said in Comcare v Burton (1998) 50 ALD 846 , the review procedure under the SRC Act has three stages: (a) the initial determination as defined in s 60; (b) reconsideration of the determination under s 62; and (c) review of the reconsideration decision (a reviewable decision) by the Tribunal under s 64. The 2008 Tribunal had the jurisdiction to review the reviewable decisions of Australia Post, being decisions which gave rise to determinations (s 60 of the SRC Act) and had been reconsidered so as to constitute s 62 reviewable decisions ( Power at 525 citing Burton ). As Sackville J noted in Power at 525 (citing Burton ), s 43(1) of the AAT Act is not a source of jurisdiction but confers powers on the Tribunal in relation to matters in which it has jurisdiction. There is no dispute in the present case that there were determinations under the SRC Act followed by reconsideration of those determinations which gave rise to the 2008 Tribunal decision. As Sackville J pointed out in Power at 525, s 43(1) of the AAT Act confers on the Tribunal the same powers and discretions as were available to the decision-maker, including the power provided in s 62(5) of the SRC Act to affirm, revoke or vary the delegate's decision that liability previously accepted had ceased. For the purpose of reviewing each reconsideration decision (ie. each reviewable decision) the 2008 Tribunal could exercise all the powers and discretions conferred by the SRC Act on the reconsideration decision-maker ( Power at 526). This included a power to consider whether Ms Cheung's conditions had ever been causally related to her work. This consideration involved the reconsideration decision-maker and then the 2008 Tribunal analysing all the necessary facts, including further medical reports, to determine whether or not there was a continuing liability. The 2008 Tribunal could have exercised its discretionary powers to exclude evidence recanvassing the issues resolved in the 2001 Tribunal decision ( Power at 526 citing Re Quinn ). No issue as to the Tribunal's discretionary power was raised in Power .
Case: Re Rana and Military Rehabilitation and Compensation Commission (2008) 104 ALD 595
Outcome: considered
Cheung relies upon the "flexible" approach that the Tribunal may take in considering matters before it. That, she says, includes the ability simply to apply an earlier decision of the Tribunal. She points out that in Re Rana and Military Rehabilitation and Compensation Commission (2008) 104 ALD 595 , Deputy President Forgie concluded that an applicant should not be permitted to rehearse the circumstances of his employment a further time or to challenge findings that had been made about the circumstances of his employment and the compensability of his conditions and in respect of which the Tribunal had affirmed previous reviewable decisions. The Deputy President concluded in that case that, under s 33(1)(c) of the AAT Act, the Tribunal would inform itself as to the circumstances of the applicant's employment and of the conditions he suffered by reference to the findings of fact made by the earlier Tribunals and that she would not permit the parties to lead further evidence on these matters. She stated that any evidence given should be directed to establishing the necessary causal links between the facts as found by those previous Tribunals and the conditions now claimed by the applicant (at [134] to [137]). However, as is apparent in Re Rana , the context was a situation where events had been comprehensively considered in previous Tribunal decisions, the applicant applied for compensation in relation to the same set of events as in previous cases, those earlier decisions had either not been challenged or had been considered on appeal and no error of law in the findings of fact had been found. The circumstances in Re Rana formed the basis for the Tribunal's conclusions in that case.
Case: Telstra Corporation Ltd v Hannaford [2006] FCAFC 87 ; (2006) 151 FCR 253
Outcome: applied
Telstra Corporation Ltd v Hannaford [2006] FCAFC 87 ; (2006) 151 FCR 253 at [57] , the statutory scheme was described by Conti J (with whom Heerey and Dowsett JJ agreed) as allowing for: ... progressive and evolving decision-making giving effect to the provisions of ongoing review of relief or entitlements in the nature of course of workers compensation, being review which allows for adjustment or change in the light of events and circumstances which may subsequently happen. This may empower the Tribunal to make findings of fact ' that effectively undercut the necessary findings of fact made in the initial or original decision ... to accept liability ' (at [59]). The Tribunal is not excluded from revisiting and making its own findings on questions of fact that have been the subject of findings by a prior Tribunal in an application to review a different reviewable decision. Until the subsequent decision is made, the earlier decision remains in operation. Australia Post relies on the conduct of the hearing before the 2008 Tribunal. It points out that Ms Cheung's counsel was on notice that it was in issue whether she suffered any injury which gave rise to liability. The 2008 Tribunal made it clear that it was going to rehear medical evidence on that issue, including fresh medical evidence that was not before the 2001 Tribunal, and there was no application to exclude that evidence. Nor was an application made to the 2008 Tribunal to treat the decision of the 2001 Tribunal as determinative of the conclusions to be drawn. There was no application to exclude any evidence concerning the subject matter of the 2001 Tribunal decision. There was no application to exclude evidence going to the issue of causation of Ms Cheung's left shoulder condition or her neck and right shoulder condition.
Case: New Zealand Flax Investments Ltd v Federal Commissioner of Taxation [1938] HCA 60 ; (1938) 61 CLR 179
Outcome: cited
Whilst I accept that Nommack (No 75) as trustee of the Sydney trust contracted to purchase the Elizabeth Street property and lost its deposit, the question is whether or not those circumstances led to its incurring a loss for the purposes of the ITA Act. As I understand it that depends upon its being a loss or outgoing of the kind previously contemplated by s 51 of the ITA Act and now by s 8-1. As Dixon J observed in New Zealand Flax Investments Ltd v Federal Commissioner of Taxation [1938] HCA 60 ; (1938) 61 CLR 179 at 207: 'To come within that provision there must be a loss or outgoing actually incurred. "Incurred" does not mean only defrayed, discharged, or borne, but rather it includes encountered, run into, or fallen upon. It is unsafe to attempt exhaustive definitions of a concept intended to have such a various or multifarious application. But it does not include a loss or expenditure which is no more than impending, threatened, or expected.' 145 Drummond J said in Kajewski v Federal Commissioner of Taxation (2003) 52 ATR 455 at [107]: 'The applicants have sought to show that the Commissioner erred in forming the opinion that there was an avoidance of tax due to fraud or evasion because the applicants, their advisers and other witnesses had given evidence in this court to the effect that there was no such fraud or evasion, evidence it is said which this Court should accept. In rejecting the applicant's attack on the amended assessments because they are excessive, I have explained why this part of the applicant's case is, on the evidence before me, unfounded. But, in any event, for the reasons given, the issue of fraud and evasion is not at large for this Court. In accordance with Avon Downs and Kolotex [(1975) [1975] HCA 5 ; 132 CLR 535] the Commissioner's opinion that there was fraud or evasion involved must stand unless the applicants can show that the Commissioner, in forming that opinion, fell into the kind of error therein referred to. Only if the applicants can establish, by reference only to the material that was before the Commissioner, that his opinion was vitiated by some such deficiency in the approach he took in reaching that opinion would it be open to this court to form its own view on the question of fraud or evasion. Consistently with their submissions that the appeal to this court is by way of hearing de novo , the applicants did not seek to mount the kind of attack on the Commissioner's determination that there was fraud or evasion involved that must be made before this court can consider that issue for itself. No challenge to the formation by the Commissioner of the opinion necessary to enliven his power under s 170(2) to issue the amended assessments here in question within the principle in Avon Downs was raised by the applicants, let alone made out at trial.'
Case: Federal Commissioner of Taxation v James Flood Pty Ltd [1953] HCA 65 ; (1953) 88 CLR 492
Outcome: cited
See also Federal Commissioner of Taxation v James Flood Pty Ltd [1953] HCA 65 ; (1953) 88 CLR 492 at 506-507. 63 If the creditors were entitled to call for repayment by Nommack (No 75) of their advances, it was entitled to indemnity out of the trust assets in the same amounts. The first question, then, is whether the creditors were so entitled. It is convenient to focus on the position of Media Portfolio. According to Mr Arnold, the arrangement between Nommack (No 75) and Media Portfolio was that on resale, the borrowed funds would be repaid with interest and any profit divided equally between two companies. However Mr Arnold did not see any relevant documentation. Indeed, it seems that there was no documentation until after it became apparent that the project would fail. See par 8 of Mr Robinson's affidavit. Mr Arnold seems to have understood that the loan was from a company in the Rothwells group, from which group Messrs Theeman and Adler had previously borrowed. Mr Creais understood that Media Portfolio was not part of the Rothwells group. 64 Mr Arnold's knowledge of the transactions seemed, at some points, to be based on the assumption that it was funded in the same way as had been previous transactions. Clearly, however, it differed from earlier transactions in that it was a second transaction using Nommack (No 75) and the Sydney trust. According to Mr Arnold, Messrs Theeman and Adler had previously used each trustee company and trust for only one transaction. If Media Portfolio was not part of the Rothwells group, that was also a departure from the previous practice. At other points, Mr Arnold's knowledge seemed to be derived primarily from statements made to him by Mr Theeman. The evidence was received under s 63 of the Evidence Act 1995 (Cth). I am unpersuaded as to its reliability or that Mr Arnold had any specific knowledge of the terms upon which Media Portfolio advanced the relevant funds.
Case: Commissioner of Taxation v Rowe (1995) 60 FCR 99
Outcome: discussed
Hill J considered that such a proposition was inconsistent with the earlier decision of the Full Court in Commissioner of Taxation v Rowe (1995) 60 FCR 99, a decision which was subsequently upheld on appeal by the High Court in Commissioner of Taxation v Rowe [1997] HCA 16 ; (1996-1997) 187 CLR 266. In those circumstances Hill J said (at 205): 'The real issue between the parties is whether the release of (the taxpayer) from its liability to pay sales tax constituted income in ordinary concepts by virtue of that release constituting a gain or profit forming part of its business income. There are two steps in the resolution of this issue. The first involves the question whether the amount released involved a gain to (the taxpayer) so as to constitute a profit. The second is whether this profit or gain was on revenue account.'
Case: Commissioner of Taxation v Rowe [1997] HCA 16 ; (1996-1997) 187 CLR 266
Outcome: considered
Hill J considered that such a proposition was inconsistent with the earlier decision of the Full Court in Commissioner of Taxation v Rowe (1995) 60 FCR 99, a decision which was subsequently upheld on appeal by the High Court in Commissioner of Taxation v Rowe [1997] HCA 16 ; (1996-1997) 187 CLR 266. In those circumstances Hill J said (at 205): 'The real issue between the parties is whether the release of (the taxpayer) from its liability to pay sales tax constituted income in ordinary concepts by virtue of that release constituting a gain or profit forming part of its business income. There are two steps in the resolution of this issue. The first involves the question whether the amount released involved a gain to (the taxpayer) so as to constitute a profit. The second is whether this profit or gain was on revenue account.'
Case: Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26 ; (1949) 78 CLR 353
Outcome: considered
The power to reassess is enlivened by the Commissioner's formation of the relevant opinion. In Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26 ; (1949) 78 CLR 353 at 360, Dixon CJ said, concerning the formation by the Commissioner of an opinion as to a different matter: 'But it is for the commissioner, not for me, to be satisfied of the state of the voting power at the end of the year of income. His decision, it is true is not unexaminable. If he does not address himself to the question which the subsection formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review. Moreover, the fact that he has not made known the reasons why he was not satisfied will not prevent the review of his decision. The conclusion he has reached may, on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some such misconception. If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law.'
Case: Kajewski v Federal Commissioner of Taxation (2003) 52 ATR 455
Outcome: considered
Drummond J said in Kajewski v Federal Commissioner of Taxation (2003) 52 ATR 455 at [107]: 'The applicants have sought to show that the Commissioner erred in forming the opinion that there was an avoidance of tax due to fraud or evasion because the applicants, their advisers and other witnesses had given evidence in this court to the effect that there was no such fraud or evasion, evidence it is said which this Court should accept. In rejecting the applicant's attack on the amended assessments because they are excessive, I have explained why this part of the applicant's case is, on the evidence before me, unfounded. But, in any event, for the reasons given, the issue of fraud and evasion is not at large for this Court. In accordance with Avon Downs and Kolotex [(1975) [1975] HCA 5 ; 132 CLR 535] the Commissioner's opinion that there was fraud or evasion involved must stand unless the applicants can show that the Commissioner, in forming that opinion, fell into the kind of error therein referred to. Only if the applicants can establish, by reference only to the material that was before the Commissioner, that his opinion was vitiated by some such deficiency in the approach he took in reaching that opinion would it be open to this court to form its own view on the question of fraud or evasion. Consistently with their submissions that the appeal to this court is by way of hearing de novo , the applicants did not seek to mount the kind of attack on the Commissioner's determination that there was fraud or evasion involved that must be made before this court can consider that issue for itself. No challenge to the formation by the Commissioner of the opinion necessary to enliven his power under s 170(2) to issue the amended assessments here in question within the principle in Avon Downs was raised by the applicants, let alone made out at trial.'
Case: Zhang v Royal Australian Chemical Institute Inc [2005] FCAFC 99 ; [2005] 144 FCR 347
Outcome: followed
This morning, Mr Vernier, with respect to the first complaint, has drawn my attention to a judgment of a Full Court of this Court in Zhang v Royal Australian Chemical Institute Inc [2005] FCAFC 99 ; [2005] 144 FCR 347, particularly, at [25] and [26] in the judgment of Lander J, with whom Spender and Kenny JJ agreed. That decision seems to me to be directly on point and adds further support for what, in any event in this case, appears clearly enough from the statutory provisions, namely that Mr Sapula has no cause of action arising under s 659 of the Workplace Relations Act 1996 (Cth). 6 Neither does he have any cause of action arising under s 661 of that Act. 7 I have been asked by the respondent to give summary judgment for it in the proceedings. I am satisfied, in accordance with s 31A of the Federal Court of Australia Act 1976 (Cth), that the applicant has no reasonable prospect of successfully prosecuting the proceeding and that it is an appropriate case for the matter to be dismissed at this stage. Accordingly, I order that the proceedings be dismissed.
Case: Australian Competition and Consumer Commission v 1Cellnet LLC [2005] FCA 856
Outcome: cited
An applicant for an order under Order 35A does not have to prove its claim by way of evidence. It is sufficient that, on the face of the statement of claim, there is a claim for the relief sought and that it appears that the Court has jurisdiction to grant that relief: see Australian Competition and Consumer Commission v 1Cellnet LLC [2005] FCA 856 at [14] . 10 I am satisfied that each of the respondents is in default by reason of his or its failure to file a defence and to attend directions hearings. The orders sought should be made. 11 On 3 January 2008 the applicant obtained orders from Ryan J against two other respondents (the twentieth and twenty-first respondents) which were conditioned by a requirement that the applicant provide security for an undertaking which it gave to his Honour on that day. It was ordered that $150,000 be paid into and held in the trust account maintained by the applicant's solicitors. On 2 April 2008 the Court made orders by consent that the orders made by Ryan J on 3 January 2008 be vacated. The proceeding, insofar as it involved the applicant and the twentieth and twenty-first respondents was discontinued. In these circumstances the applicant applies to recover the $150,000 which remains in the solicitor's trust account. There being no further requirement for such security to be provided the order should be made. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice TRACEY. Associate: Dated: 10 October 2008 Counsel for the Applicant: Mr E Heerey Solicitor for the Applicant: Middletons Dates of Hearing: 28 August 2008, 1 October 2008, 7 October 2008 Date of Judgment: 10 October 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1514.html
Case: Deputy Commissioner of Taxation v WPS Motorsport Pty Ltd (2009) 71 ACSR 640
Outcome: distinguished
Deputy Commissioner of Taxation v WPS Motorsport Pty Ltd (2009) 71 ACSR 640 (WPS Motorsport), I had occasion to consider a number of authorities bearing upon the question for immediate determination: see paras 20 - 23 of the reasons for judgment in that case, in particular. Since the winding up application was filed, the Deputy Commissioner has determined an objection to the substantive underlying revenue law debt arising from default assessment. It emerges from the affidavit of debt of Mr Gregory Phillips, read on behalf of the Deputy Commissioner, that on or about 19 October 2009 an objection was allowed against Bedroff's income tax assessment for the year ended 30 June 2005. The result of that objection decision was that Bedroff's taxation liability for the 2005 year was reduced by $813,063.22, with related penalty being reduced by $609,797.42. As yet, and perhaps surprisingly, the Deputy Commissioner has not yet taken steps to implement that objection decision by the issuing of an appropriate amended assessment. The evidence, though, is that when that amended assessment is issued, the present indebtedness of the company to the Commonwealth, which has risen a little as a result of the running of general interest charge, will be reduced by $1,422,860.64. On any view, though, what remains is a substantial debt to the Commonwealth.