mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Fletcher v Commissioner of Taxation (1988) 19 FCR 442
Outcome: applied
Section 43 of the Administrative Appeals Tribunal Act 1975 provides that, for the purposes of reviewing an administrative decision, the Tribunal may exercise all the powers and discretions that are conferred on the original decision-maker. In Fletcher v Commissioner of Taxation (1988) 19 FCR 442 at 453, Lockhart, Wilcox and Burchett JJ said, referring to s 43: "In exercising those powers and discretions the Tribunal was bound to consider the facts as they were proved in evidence before the Tribunal, making the decision which, upon that evidence and at that time, was the correct or preferable decision to be made in considering the objection. The Tribunal was not confined either to the material which was before the Commissioner, as primary decision-maker, or the events which had occurred up to that time ..." 67 It follows that not only was the period from 1 July 2002 before the Tribunal, but indeed the Tribunal was obliged to consider that period. 68 Thirdly, the Commissioner says that the evidence before the Tribunal was insufficient to establish the finding that the activities of Word from 1 July 2002 were the same as those prior to 1996. The Commissioner points to the relative paucity of material in evidence for the period from 1 July 2002. I accept that if the only question for the Tribunal had been Word's operations from 1 July 2002 and there had been no evidence of its operations prior to then, the Tribunal would have had difficulty reaching a view on whether Word qualified for charitable status. However, this was not the situation. Word's case was that the only significant change in its operations from the period immediately prior to the establishment of Bethel Funerals in 1996 to the termination of its activities in 2005 was the existence and operations of Bethel Funerals. A taxpayer that seeks to establish that it is a charity is not required to prove that status on every single day in the period for which it claims that status. Once it has established that it is a charity at a particular time, it is entitled to rely on that finding until such time as it is proved that its activities have changed to the extent that it is no longer charitable. The Commissioner has not pointed to any additional changes to Word's operations from 1 July 2002. He did not seek to cross-examine Word's witnesses on its activities from 1 July 2002. In these circumstances, there was evidence before the Tribunal that entitled it to find that Word's operations from 1 July 2002 were the same as those prior to 1996.
Case: Minister for Immigration and Citizenship v SZKTI and Another (2009) 258 ALR 434
Outcome: considered
High Court of Australia has reversed the decision of the Full Court in SZKTI : see Minister for Immigration and Citizenship v SZKTI and Another (2009) 258 ALR 434. The High Court found that the Tribunal was entitled to obtain information as it required and that the requirements of s 424(2) did not restrict the general power of the Tribunal to obtain information under s 424(1) which does not specify how the information is to be obtained. Accordingly, it was unnecessary for the Tribunal to provide an invitation when it sought to obtain the information, because it sought to obtain the information via s 424(1). It would appear from [47] of the High Court's decision that the Tribunal, at least when making enquiries by telephone, can seek information under s 424(1), even if the information as sought would be classed as 'additional information' for the purposes of s 424(2). That is, the mere fact that the Tribunal is seeking 'additional information' does not require it to proceed under s 424(2) and the procedural requirements which flow from it, at least where phone enquiries are concerned. It would appear that this is a significant change in the s 424 jurisprudence, as will be shown below. The Court notes that the parties have not had the opportunity to make submissions based on the High Court's decision in SZKTI because such decision was still reserved at the time the parties made their further submissions. Each indicated that they wished the Court to proceed to deliver judgment in this appeal notwithstanding the decision of the High Court in SZKTI . The Court therefore makes the above observations in respect of the consequences of SZKTI with that wish in mind. The Court does not consider that SZKTI alters the law in relation to the specific issues arising in this appeal. Accordingly, further submissions from the parties are not required.
Case: SZMBS v Minister for Immigration and Citizenship and Another (2009) 176 FCR 141
Outcome: followed
SZMBS v Minister for Immigration and Citizenship and Another (2009) 176 FCR 141 the Full Court considered a letter headed 'TO WHOM IT MAY BE CONCERNED' [sic] written by the Minister of a local church stating: This is to confirm that [the appellant] has been meeting regularly with the church since August 2007. Please do not hesitate to contact William Poh ([mobile telephone number]) should you have a further enquiry. At [36] of SZMBS the Full Court, having cited SZLPO , said: It is significant that the letter of 3 February 2008 from the Local Church is not addressed to the Tribunal and was not provided to the Tribunal by Brother Poh. Rather, it was given to the Tribunal by the appellant. Thus, as at the time when the Tribunal telephoned Brother Poh, Brother Poh had not given any information to the Tribunal concerning the appellant. The 2004 letter did not contain any information in relation to the appellant, nor was it provided to the Tribunal by the appellant. Such information was not supplied in connection with any relevant review, but was information sought generally relating to persons who claimed to be of the Ahmadiyya faith. The information provided by the 2004 letter of the Australian Association was not therefore 'information' for the reasons provided in SZMBS at [36]. It must follow that the September 2007 letter could not therefore be a request for 'additional information' within s 424(2) of the Act. The Court rejects the submission of the appellant that the mere placing of the 2004 letter from the Australian Association on the Tribunal's file rendered such letter 'information' for the purpose of the specific review in question as referred to in SZLPO and SZMBS . Were the false letters 'information'? In this instance, the false letters provided by the appellant were not addressed to the Tribunal, nor were they provided to the Tribunal as the result of an invitation from the Tribunal. Consistent with the finding in SZMBS at [36] the letters were not 'information' provided by the National Amir. Any subsequent request by the Tribunal of the National Amir of Bangladesh could not therefore have been a request for 'additional information'. It follows that the alleged agency of the Australian Amir for the purpose of obtaining additional information does not arise, since no 'additional information' as referred to in s 424 was sought. There is a further reason for finding that the Tribunal's enquiry did not constitute a request for 'additional information'. The two letters provided to the Tribunal by the appellant and purportedly signed by the Amir were fabricated. They had not been written by the Amir. Accordingly, it could not be said that the Tribunal's request of the Amir was for 'additional information' if no information had previously been provided by him.
Case: Friends of Hinchinbrook Society Inc v Minister for the Environment (No. 1) (1996) 69 FCR 1
Outcome: followed
Gunns also contends that there is no evidence that those persons who stand behind LFF do not have the funds to provide security, so that it can't be concluded that the litigation would be stifled because of a security for costs order. That submission is rejected. There is a relevant difference between members of a non-profit voluntary association formed for some public policy purpose and shareholders of a company. Members of LFF do not stand to gain any financial benefit from the proceeding. The proceeding is one in which LFF sues for its own benefit to advance a purpose or purposes for which it was formed; see Friends of Hinchinbrook Society Inc v Minister for the Environment (No 1) (1996) 69 FCR 1 at 21-22, per Branson J and Tigers AFC (Mayne) Inc v The AFL and Others [2000] FCA 1650 at [28] to [29] per Spender J.
Case: Tigers AFC (Mayne) Inc v The AFL and Others [2000] FCA 1650
Outcome: followed
Gunns also contends that there is no evidence that those persons who stand behind LFF do not have the funds to provide security, so that it can't be concluded that the litigation would be stifled because of a security for costs order. That submission is rejected. There is a relevant difference between members of a non-profit voluntary association formed for some public policy purpose and shareholders of a company. Members of LFF do not stand to gain any financial benefit from the proceeding. The proceeding is one in which LFF sues for its own benefit to advance a purpose or purposes for which it was formed; see Friends of Hinchinbrook Society Inc v Minister for the Environment (No 1) (1996) 69 FCR 1 at 21-22, per Branson J and Tigers AFC (Mayne) Inc v The AFL and Others [2000] FCA 1650 at [28] to [29] per Spender J.
Case: Bell Wholesale Co Ltd v Gates Export Corporation (1984) 2 FCR 1
Outcome: applied
The discretion to make a security for costs order is wide and unfettered but must be exercised judicially; see Bell Wholesale Co Ltd v Gates Export Corporation (1984) 2 FCR 1 at 3. As the only factor of any substance raised in support of the proposed order is LFF's impecuniosity, Gunns has not satisfied its onus of demonstrating that a security for costs order should be made. To hold otherwise would stifle the litigation and prevent an applicant with standing to bring the application from agitating a matter which it considers to involve questions of public importance and which seems, on the material currently before the Court, to be made bona fide and raises arguable questions of law. 15 The Court will order as follows: 1. The second respondent's motion dated 24 January 2008 is dismissed. 2. The second respondent pay the applicant's costs of, and associated with the motion, including the costs of compliance with subpoenas, to be taxed in default of agreement. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 30 April 2008 Counsel for the Applicant: Dr K Hanscombe SC with Ms F Gordon Solicitor for the Applicant: Bleyer Lawyers Pty Ltd Counsel for the First Respondent: Mr G Hill Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: Mr T Walker Solicitor for the Second Respondent: Freehills Date of Hearing: 30 April 2008 Date of Judgment: 30 April 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/588.html
Case: Hall v Repatriation Commission [2007] FCA 2021
Outcome: related
In the principal decision ( Hall v Repatriation Commission [2007] FCA 2021) , an issue was reserved as to whether or not the matter would be remitted to the Administrative Appeals Tribunal (the Tribunal). The applicant now seeks an order that this Court determine the matter, rather than remit the matter to the Tribunal. Counsel for the Repatriation Commission submits that is not a step which ought to be taken and I have been referred to a series of authorities, culminating in Repatriation Commission v Butcher [2007] FCAFC 36 ; (2007) 94 ALD 364, which stress the sparing nature of the potential use of the power granted by s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) generally, and in particular, by s 44(7). 3 In my opinion, that submission is contrary to the principal decision see Hall [2007] FCA 2021 at [22] ). In my view, once the hypothesis was found to be reasonable, and once the facts were found as the Tribunal did, then, when the concept of beyond reasonable doubt is properly understood, the Tribunal could not properly find, as required by s 120(1) of the Veteran's Entitlement Act 1986 (Cth), that there was no sufficient ground for making the determination beyond reasonable doubt. 4 In my opinion, it is only at a very high level that to so hold may be regarded as a finding of fact. The findings of primary fact have been made by the Tribunal, and if it be a finding of fact that is made, then it seems to me that this is a very benign use of s 44(7). The course of having the matter remitted would lead to further delay and cost, and risks a misunderstanding of the effect of the principal decision if a submission such as that just made to me was made to the Tribunal. 5 Accordingly the decision of the Repatriation Commission under review is set aside and in lieu thereof I determine that the death of Robert Thomas Butler was war caused and that the applicant, Ruth Isobel Hall, is entitled to a war widow's pension as from 27 February 2005. Liberty to apply is reserved. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 24 January 2008 Counsel for the Applicant: Ms E Wood Solicitor for the Applicant: Legal Aid Commission of NSW Counsel for the Repatriation Commission: Miss RM Henderson Solicitor for the Repatriation Commission: Australian Government Solicitor Date of Hearing: 20 December 2007 Date of Judgment: 20 December 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/2109.html
Case: CGU Insurance Ltd and Others v Malaysia International Shipping Corporation Berhad [2001] FCA 1223 ; (2001) 187 ALR 279
Outcome: referred to
necessity to make enquiries from other sources was considered by Tamberlin J in CGU Insurance Ltd and Others v Malaysia International Shipping Corporation Berhad [2001] FCA 1223 ; (2001) 187 ALR 279 at [23] - [27] . At [25] his Honour said: The provision does not contemplate an order where some reasonable inquiries have been made but rather where all reasonable inquiries have been made. It appears to contemplate a reasonable exhaustion of alternative sources of information and, in any particular case, involves a pragmatic balancing of considerations. The power of the Court arises after the applicant has made all reasonable inquiries and finds that there is insufficient information to enable a decision to be made. There is no evidence of any attempts made by HID to ascertain from Gemalto whether the exclusivity arrangement existed. However, the question is whether it is reasonable to expect that HID would, prior to commencing litigation, inquire of Gemalto whether it held an exclusivity arrangement. That is, whether it was reasonable to expect that it would ask its competitor to provide information which relates solely to a commercial transaction made between Gemalto and Keycorp, in respect of which HID was an unsuccessful bidder. The Court is not persuaded that it was reasonable for HID, a commercial competitor of Gemalto, to have made such inquiries of Gemalto concerning the existence of any exclusivity arrangement between Gemalto and Keycorp. Therefore, such an inquiry was not necessary to satisfy the first requirement of O 15A r 6(b), namely that HID make 'all reasonable inquiries . '
Case: Dartberg Pty Limited v Wealthcare Financial Planning Pty Ltd and Another [2007] FCA 1216 ; (2007) 164 FCR 450
Outcome: referred to
ascertaining whether there is reasonable cause to believe that the necessary elements exist for a cause of action, the Court must determine that there is at least a reasonable cause 'to believe that each of the elements of the relevant cause of action might be established' : see Middleton J in Dartberg Pty Limited v Wealthcare Financial Planning Pty Ltd and Another [2007] FCA 1216 ; (2007) 164 FCR 450 at [44] .
Case: Hooper and Others v Kirella Pty Ltd; Transfield Pty Ltd v Airservices Australia [1999] FCA 1584 ; (1999) 96 FCR 1
Outcome: cited
test is objective. There is no requirement that every element of the potential cause of action in fact exists but rather that there may be entitlement to relief: see Hooper Hooper and Others v Kirella Pty Ltd; Transfield Pty Ltd v Airservices Australia [1999] FCA 1584 ; (1999) 96 FCR 1 at [39] ; Malouf v Malouf [1999] FCA 710 at [16] ; Quanta Software International Pty Ltd v Computer Management Services Pty Ltd (2000) 175 ALR 536 at [24]; Alphapharm Pty Ltd v Eli Lilly Australia Pty Ltd [1996] FCA 391 ; St George Bank Ltd v Rabo Australia Ltd and Another [2004] FCA 1360 ; (2004) 211 ALR 147 at [26] ; Leighton Contractors Pty Ltd v Page Kirkland Management Pty Ltd [2006] FCA 288 at [5] .
Case: Leighton Contractors Pty Ltd v Page Kirkland Management Pty Ltd [2006] FCA 288
Outcome: cited
test is objective. There is no requirement that every element of the potential cause of action in fact exists but rather that there may be entitlement to relief: see Hooper Hooper and Others v Kirella Pty Ltd; Transfield Pty Ltd v Airservices Australia [1999] FCA 1584 ; (1999) 96 FCR 1 at [39] ; Malouf v Malouf [1999] FCA 710 at [16] ; Quanta Software International Pty Ltd v Computer Management Services Pty Ltd (2000) 175 ALR 536 at [24]; Alphapharm Pty Ltd v Eli Lilly Australia Pty Ltd [1996] FCA 391 ; St George Bank Ltd v Rabo Australia Ltd and Another [2004] FCA 1360 ; (2004) 211 ALR 147 at [26] ; Leighton Contractors Pty Ltd v Page Kirkland Management Pty Ltd [2006] FCA 288 at [5] .
Case: Malouf v Malouf [1999] FCA 710
Outcome: cited
test is objective. There is no requirement that every element of the potential cause of action in fact exists but rather that there may be entitlement to relief: see Hooper Hooper and Others v Kirella Pty Ltd; Transfield Pty Ltd v Airservices Australia [1999] FCA 1584 ; (1999) 96 FCR 1 at [39] ; Malouf v Malouf [1999] FCA 710 at [16] ; Quanta Software International Pty Ltd v Computer Management Services Pty Ltd (2000) 175 ALR 536 at [24]; Alphapharm Pty Ltd v Eli Lilly Australia Pty Ltd [1996] FCA 391 ; St George Bank Ltd v Rabo Australia Ltd and Another [2004] FCA 1360 ; (2004) 211 ALR 147 at [26] ; Leighton Contractors Pty Ltd v Page Kirkland Management Pty Ltd [2006] FCA 288 at [5] .
Case: Matrix Film Investment One Pty Ltd v Alameda Films LLC [2006] FCA 591
Outcome: referred to
Matrix Film Investment One Pty Ltd v Alameda Films LLC [2006] FCA 591 at [14] Tamberlin J referred to the principle that 'O 15A r 6 is to be beneficially construed and given the fullest scope that its language will reasonably allow, with the proper brake on any excesses lying in the discretion of the Court in the light of the specific circumstances' . However at [19] his Honour referred to the necessity for an applicant for preliminary discovery to show 'more than a mere assertion that there is a case against a prospective respondent' . His Honour continued: The purpose of preliminary discovery is not to produce material which will strengthen or enhance a decision to commence proceedings but rather what is reasonably necessary to enable the decision to be made.
Case: Quanta Software International Pty Ltd v Computer Management Services Pty Ltd (2000) 175 ALR 536
Outcome: cited
test is objective. There is no requirement that every element of the potential cause of action in fact exists but rather that there may be entitlement to relief: see Hooper Hooper and Others v Kirella Pty Ltd; Transfield Pty Ltd v Airservices Australia [1999] FCA 1584 ; (1999) 96 FCR 1 at [39] ; Malouf v Malouf [1999] FCA 710 at [16] ; Quanta Software International Pty Ltd v Computer Management Services Pty Ltd (2000) 175 ALR 536 at [24]; Alphapharm Pty Ltd v Eli Lilly Australia Pty Ltd [1996] FCA 391 ; St George Bank Ltd v Rabo Australia Ltd and Another [2004] FCA 1360 ; (2004) 211 ALR 147 at [26] ; Leighton Contractors Pty Ltd v Page Kirkland Management Pty Ltd [2006] FCA 288 at [5] .
Case: St George Bank Ltd v Rabo Australia Ltd and Another [2004] FCA 1360 ; (2004) 211 ALR 147
Outcome: cited
test is objective. There is no requirement that every element of the potential cause of action in fact exists but rather that there may be entitlement to relief: see Hooper Hooper and Others v Kirella Pty Ltd; Transfield Pty Ltd v Airservices Australia [1999] FCA 1584 ; (1999) 96 FCR 1 at [39] ; Malouf v Malouf [1999] FCA 710 at [16] ; Quanta Software International Pty Ltd v Computer Management Services Pty Ltd (2000) 175 ALR 536 at [24]; Alphapharm Pty Ltd v Eli Lilly Australia Pty Ltd [1996] FCA 391 ; St George Bank Ltd v Rabo Australia Ltd and Another [2004] FCA 1360 ; (2004) 211 ALR 147 at [26] ; Leighton Contractors Pty Ltd v Page Kirkland Management Pty Ltd [2006] FCA 288 at [5] .
Case: Hudson v The Official Trustee &amp; Ors [2007] FMCA 1357
Outcome: cited
After the application was filed, a number of adjournments were occasioned by an application made by Mr Hudson in the Federal Magistrates Court ('the FMC application'). The FMC application, broadly, concerned the question of whether Mr Pascoe was validly appointed as Trustee of the Estate and whether the procedures subsequently adopted by him by which he objected to the discharge of Mr Hudson from bankruptcy were effective. On 10 August 2007 Wilson FM determined in Hudson v The Official Trustee &amp; Ors [2007] FMCA 1357 that the Trustee was validly appointed and that the procedure by which he objected to the discharge of Mr Hudson from bankruptcy was effective. Subsequently Wilson FM dismissed the remaining matters in Mr Hudson's application, those orders being made on 17 August 2007. 4 The Trustee has established service of this application, effected on 10 November 2006. On none of the occasions when this matter has been before me has Mr Hudson appeared, despite service by the Trustee of letters informing him of each date on which this matter was next to be before the Court. As outlined in an affidavit of service of Melanie Cavanough sworn 2 July 2007, Mr Hudson was notified that the matter was to be heard today. The matter was called outside the Court and there was no appearance. 5 On 28 August 2007 a fax was received in my Chambers containing a notice of appeal from the decision of Wilson FM. The fax was not accompanied by any other documentation. In particular, there was no application for any stay of these proceedings pending the hearing of that appeal. Mr Pascoe presses to have the matter determined today. Apart from the number of times that the matter has already been before the Court, Ms Nash, who appears for Mr Pascoe, points to the remuneration and costs that have been incurred by the Trustee to date, which are well in excess of the amount available for distribution. Ms Nash also points to one of the proposed payments, namely, payment to the former wife and only creditor of Mr Hudson in the sum of $5,130.00. The evidence is that those moneys are due to Mrs Hudson as part of a settlement on her divorce from Mr Hudson, by reason of a miscalculation when the amount due was translated from New Zealand dollars to Australian dollars.