mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Sleight v Commissioner of Taxation (2003) 53 ATR 667
Outcome: cited
The primary Judge, RD Nicholson, held ( Sleight v Commissioner of Taxation (2003) 53 ATR 667 at (697)) that the making of a s 177F determination was "part of the process of making the assessment ... and not liable to challenge in this proceeding save in respect of matters going to substantive liability: Richard Walter at CLR 178, 203". His Honour held that it followed that any deficiency was validated by s 175. For this last proposition, his Honour referred to Richard Walter at 182, 187-8, 193-5, 196-7, 198-9, 209-211, 222-3 and 240-2. Finally, his Honour noted that no argument had been made that the case fell within "the conditions delineated in R v Hickman ".
Case: Western Australian Capital Investment Co Ltd v Commissioner of Taxation (1989) 87 ALR 183
Outcome: discussed
The taxpayer was held entitled to particulars in Western Australian Capital Investment Co Ltd v Commissioner of Taxation (1989) 87 ALR 183 (" WA Capital "). The Commissioner had issued notices under the Taxation (Unpaid Company Tax) Assessment Act 1982 (Cth) ("the TUCTA Act "). Subsection s 18(1) of the TUCTA Act governed the giving of such a notice. The relevant condition which enlivened the Commissioner's power to give a notice was that the Commissioner was of the opinion that vendor's recoupment tax was likely to become payable by a person or persons in relation to ordinary company tax or undistributed profits tax, as the case may be. The taxpayer asserted, and the Commissioner denied, that the Commissioner did not, prior to the issue of the notice, address his mind to this matter. The taxpayer said that the inference that he did not do so was to be drawn from the Commissioner's letter that accompanied the notice, which did not refer to the Commissioner's being of the opinion that vendor's recoupment tax was likely to become payable. 108 The case can be classified as a state of mind case, albeit one in which the legislation did not operate to create a liability immediately upon the existence of the specified state of mind. Rather the existence of the state of mind was expressed as the condition which enlivened the Commissioner's power to give the notice. 109 The taxpayer sought particulars as to the making of the opinion, such as who made it, what facts he or she took into account, whether the facts of opinion were recorded in writing, and the authority of the person who formed the opinion.
Case: Carr v Finance Corp of Australia Ltd (No 1) [1981] HCA 20 ; (1980) 147 CLR 246
Outcome: cited
In relation to the Bias Decision and the Stay Decision, leave is required but for a different reason - each is an interlocutory decision. Neither decision " finally " determined " the parties' substantive rights " ( Cubillo v Commonwealth [2001] FCA 1213 ; (2001) 112 FCR 455 and Carr v Finance Corp of Australia Ltd (No 1) [1981] HCA 20 ; (1980) 147 CLR 246 at 248 per Gibbs CJ and 253-54 per Mason J) but dealt with questions about how, when and by whom the substantive application should be determined. The Stay Decision dealt with the timing of the Costs Decision. The Bias Decision dealt with the capacity of the Federal Magistrate to determine the Costs Decision and the Stay Decision.
Case: Cubillo v Commonwealth [2001] FCA 1213 ; (2001) 112 FCR 455
Outcome: cited
In relation to the Bias Decision and the Stay Decision, leave is required but for a different reason - each is an interlocutory decision. Neither decision " finally " determined " the parties' substantive rights " ( Cubillo v Commonwealth [2001] FCA 1213 ; (2001) 112 FCR 455 and Carr v Finance Corp of Australia Ltd (No 1) [1981] HCA 20 ; (1980) 147 CLR 246 at 248 per Gibbs CJ and 253-54 per Mason J) but dealt with questions about how, when and by whom the substantive application should be determined. The Stay Decision dealt with the timing of the Costs Decision. The Bias Decision dealt with the capacity of the Federal Magistrate to determine the Costs Decision and the Stay Decision.
Case: D&eacute;cor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Outcome: applied
To obtain leave to appeal these interlocutory decisions, Ms Winn is required to satisfy the Court in respect of each decision that: (1) it is attended by sufficient doubt to warrant reconsideration by a Full Court; and (2) substantial injustice would result if leave were refused, D&eacute;cor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-99 (per Sheppard, Burchett and Heerey JJ). 26 It is well established that in cases where the interlocutory decision does not determine substantive rights, particular caution is required and a "tight rein" must be kept on appeals ( D&eacute;cor at 400). This is such a case. Ms Winn must satisfy both limbs of the test. She cannot. 27 Neither decision is attended with any doubt let alone sufficient doubt to warrant reconsideration by a Full Court. Even if either decision was attended with doubt, I am not satisfied that Ms Winn would suffer any injustice let alone " substantial injustice" in the event that leave was refused. The facts and matters set out above support that view. 28 In the circumstances, I would not grant Ms Winn leave to appeal the Stay Decision or the Bias Decision.
Case: Griffiths v Boral Resources (Qld) Pty Limited [2006] FCAFC 149 ; (2006) 154 FCR 554
Outcome: referred to
During the course of the oral argument and in a memorandum provided to the Court following the hearing on 25 September 2007, Ms Winn submitted that she had, in fact, filed but not served the notice of appeal on time. Despite being invited to file evidence to support the contention that a copy of the notice of appeal had been filed within the time specified by the Federal Court Rules , no documentary material in an admissible form was provided to the Court. The Court file records the receipt at 16.04 pm on 1 August 2007 of the application for extension of time to file and serve a notice of appeal. The facsimile header read "page 2". There is no record of page 1. Ms Winn handed to the Court a copy of a facsimile transmission record she held which purports to record that 21 pages were sent by facsimile to a facsimile number attached to the Victorian Registry of the Federal Court at 16.04 pm on 1 August 2007. Ms Winn submitted from the bar table that the facsimile (of 21 pages) recorded as having been sent at 16.04 pm comprised the application for leave to appeal and an unsworn affidavit which exhibited a draft of the notice of appeal. Whether the pages were received by the Court at 16.04 pm and, if so, what the 21 pages consisted of, I cannot and need not resolve. Even if evidence was provided to the Court that established that at 16.04 pm on 1 August 2007 a copy of an unsworn affidavit together with a copy of a draft notice of appeal was provided to the Court with the application for leave to appeal out of time, it would not constitute the institution of proceedings by way of appeal in this Court. O 52 r 12 provides that an appeal is instituted by filing a notice of appeal in the appropriate registry: cf Griffiths v Boral Resources (Qld) Pty Limited [2006] FCAFC 149 ; (2006) 154 FCR 554. That did not occur.
Case: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Outcome: applied
In the circumstances, I will proceed to determine the application for leave to file a notice appeal out of time. Leave to file out of time a notice of appeal in relation to the Costs Decision requires " special reasons" : O52 r 15(2). In Parker v The Queen [2002] FCAFC 133 (applying Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-49), the Full Court summarised the principles to be applied (at [6]) as follows: "1. applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored. The applicant must show an "acceptable explanation for the delay"; it must be "fair and equitable in the circumstances" to extend time; 2. action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished; 3. any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension; 4. however, the mere absence of prejudice is not enough to justify the grant of an extension; and 5. the merits of the substantial application are to be taken into account in considering whether an extension of time should be granted."
Case: Parker v The Queen [2002] FCAFC 133
Outcome: applied
In the circumstances, I will proceed to determine the application for leave to file a notice appeal out of time. Leave to file out of time a notice of appeal in relation to the Costs Decision requires " special reasons" : O52 r 15(2). In Parker v The Queen [2002] FCAFC 133 (applying Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-49), the Full Court summarised the principles to be applied (at [6]) as follows: "1. applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored. The applicant must show an "acceptable explanation for the delay"; it must be "fair and equitable in the circumstances" to extend time; 2. action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished; 3. any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension; 4. however, the mere absence of prejudice is not enough to justify the grant of an extension; and 5. the merits of the substantial application are to be taken into account in considering whether an extension of time should be granted."
Case: Newcrest Mining Limited v Apache Northwest Pty Ltd [2008] FCA 1527
Outcome: referred to
On 17 October 2008 I ordered that Apache Northwest Pty Ltd ("Apache") give preliminary discovery of certain classes of documents to Newcrest Mining Limited ("Newcrest"): see Newcrest Mining Limited v Apache Northwest Pty Ltd [2008] FCA 1527. A verified list of documents was to be filed and served on or before 30 October 2008. 2 Apache applied for leave to appeal from this decision. On 30 October 2008 Middleton J varied my order by extending, until 14 November 2008, the period within which Apache was required to file and serve its verified list of documents. 3 When I made the order for preliminary discovery I foreshadowed that it might be necessary, at a later time, for the matter to return to Court to deal with consequential issues such as confidentiality. Apache subsequently advised the Court that it considered that it would be necessary for a confidentiality regime to be put in place to deal with commercially sensitive documents. An issue also arose as to which party should bear the costs of preliminary discovery.
Case: Cappuccio v Australia &amp; New Zealand Banking Group Ltd [1999] FCA 1188
Outcome: followed
The conventional approach to costs orders in this area was explained by Burchett J in Cappuccio v Australia &amp; New Zealand Banking Group Ltd [1999] FCA 1188 at [3] - [4] where his Honour said that: "3. ... I have a discretion as to just what I should do in respect of costs, and it seems to me that the costs order which would be appropriate in a case like this depends very much on the consequences of the discovery obtained. If the applicant for preliminary discovery uncovers enough to enable that applicant to bring proceedings which are successful, there may be much to be said for the proposition that the costs of the preliminary discovery should form part of the costs of the action. On the other hand, if the applicant proceeds, brings an action, fails, and is ordered to pay the costs of that action, there seems to be every reason why, generally speaking, the costs of the preliminary discovery should be included in the costs payable to the respondent. 4. There may, of course, be cases where there are special reasons to vary the normal rule that costs follow the event. In this particular case, having listened to the arguments of both sides, each of whom seeks a costs order, I have come to the conclusion that the appropriate order, in the event that a case is brought for substantive relief, is that the costs of this application be at the discretion of the tribunal which hears the substantive application. In all the circumstances, I order that, if a substantive application is brought by the applicants against the respondent bank within six weeks of today's date, the costs be dealt with in the way I have indicated."
Case: C7 Pty Ltd v Foxtel Management Pty Ltd [2001] FCA 1864
Outcome: distinguished
A different approach was taken by Gyles J in C7 Pty Ltd v Foxtel Management Pty Ltd [2001] FCA 1864. C7 had sought preliminary discovery of documents. The application was opposed but C7 was largely successful. His Honour expressed the view (at [50]) that an application pursuant to Order 15A of the Federal Court Rules was a discrete application and that he should deal with the costs issue. In reaching this decision his Honour was influenced by the fact that, despite the fact that C7 had been successful, the relief which it obtained was offered prior to the hearing. He was also concerned that the respondent would be out of pocket, awaiting "some indefinite future event" because it was required to undertake the expense of providing the preliminary discovery. 8 In my opinion, in the circumstances of the present case, it is appropriate to make a conventional order. Apache opposed the making of any order relating to preliminary discovery. Moreover, orders of the conventional kind will not expose Apache to an indefinite delay in recovering its costs, at least no more delay than would attend recovery of the costs of discovery in an ordinary proceeding. Apache's interests will be protected by an order that Newcrest pay its costs in the event that no proceeding is commenced in this Court within six weeks of Newcrest undertaking inspection of the discovered documents. Even if Newcrest commences a proceeding in a Court other than this Court Apache will be entitled to recover its costs of providing discovery once the six week period has elapsed. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey. Associate: Dated: 7 November 2008 Counsel for the Applicant: Mr C Archibald Solicitor for the Applicant: Blake Dawson Counsel for the First Respondent: Ms B Murray (Solicitor) Solicitor for the First Respondent: Malleson Stephen Jaques Date of Hearing: 7 November 2008 Date of Judgment: 7 November 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1663.html
Case: Minister for Immigration &amp; Multicultural Affairs v Bhardwaj [2002] HCA 11 (2002) 209 CLR 597
Outcome: cited
power the Tribunal thought it was exercising in looking at the document is not clear. If, in truth, it had completed the performance of its statutory function, the Tribunal could not look further at the merits of the case. Its adverse comments about the appellant's delay in handing up the document could not form part of any proper exercise of its powers. The Tribunal member could only have looked at the additional document for the purpose of determining whether the Tribunal's decision was tainted by jurisdictional error. If it found that there was jurisdictional error, the Tribunal could then disregard the decision and proceed to deal with the matter again. See Minister for Immigration &amp; Multicultural Affairs v Bhardwaj [2002] HCA 11 (2002) 209 CLR 597. In looking at the document, the Tribunal member wrongly concluded that the Tribunal had completed the performance of its statutory function. If it had recognised that the handing down of the decision without consideration of the additional document amounted to jurisdictional error, it could not have reached that conclusion. The Tribunal member also wrongly proceeded to determine whether consideration of the document would have altered the Tribunal's decision. The conclusion was that there was no need for the Tribunal to alter its decision. The Tribunal had no power to alter its decision. It had a power to deal with the matter afresh if it reached the conclusion that there was jurisdictional error. If it had dealt with the matter afresh, it would have been forced to decide whether it would refuse to consider the document on the ground that it was in a language other than English and untranslated. It is well-established that the Tribunal cannot refuse to consider material that is written in a language other than English. See X v Minister for Immigration &amp; Multicultural Affairs [2002] FCA 56 (2002) 116 FCR 319 at [26] - [31] per Gray J and [49]-[52] per Moore J. The Tribunal could have obtained its own translation of the document, or could have invited the appellant to provide a translation, verified in some appropriate way.
Case: X v Minister for Immigration &amp; Multicultural Affairs [2002] FCA 56 (2002) 116 FCR 319
Outcome: cited
power the Tribunal thought it was exercising in looking at the document is not clear. If, in truth, it had completed the performance of its statutory function, the Tribunal could not look further at the merits of the case. Its adverse comments about the appellant's delay in handing up the document could not form part of any proper exercise of its powers. The Tribunal member could only have looked at the additional document for the purpose of determining whether the Tribunal's decision was tainted by jurisdictional error. If it found that there was jurisdictional error, the Tribunal could then disregard the decision and proceed to deal with the matter again. See Minister for Immigration &amp; Multicultural Affairs v Bhardwaj [2002] HCA 11 (2002) 209 CLR 597. In looking at the document, the Tribunal member wrongly concluded that the Tribunal had completed the performance of its statutory function. If it had recognised that the handing down of the decision without consideration of the additional document amounted to jurisdictional error, it could not have reached that conclusion. The Tribunal member also wrongly proceeded to determine whether consideration of the document would have altered the Tribunal's decision. The conclusion was that there was no need for the Tribunal to alter its decision. The Tribunal had no power to alter its decision. It had a power to deal with the matter afresh if it reached the conclusion that there was jurisdictional error. If it had dealt with the matter afresh, it would have been forced to decide whether it would refuse to consider the document on the ground that it was in a language other than English and untranslated. It is well-established that the Tribunal cannot refuse to consider material that is written in a language other than English. See X v Minister for Immigration &amp; Multicultural Affairs [2002] FCA 56 (2002) 116 FCR 319 at [26] - [31] per Gray J and [49]-[52] per Moore J. The Tribunal could have obtained its own translation of the document, or could have invited the appellant to provide a translation, verified in some appropriate way.
Case: Attorney-General v Times Newspaper Ltd [1974] AC 273
Outcome: referred to
underlying rationale of every exercise of the contempt power is that it is necessary to uphold and protect the effective administration of justice: see Mudginberri Station at 107 (per Gibbs CJ, Mason, Wilson and Deane JJ) . The power to punish contempts serves the purpose of disciplining the defendant and vindicating the authority of the court (see Mudginberri Station at 112-113); it is the means by which the law vindicates the public interest in the due administration of justice: see Attorney-General v Times Newspaper Ltd [1974] AC 273 at 315-316; Borrie &amp; Lowe, The Law of Contempt , (3 rd ed, Butterworths, 1996) p 1 and is the way in which the Court preserves respect for its role and the rule of law: see Australian Competition and Consumer Commission v Hughes [2001] FCA 38 ; (2001) ATPR 41-807 per Tamberlin J. There are many facets to the administration of justice (Borrie &amp; Lowe, p 1). While the effect of the contempt on the ability to prosecute the principal proceeding may be relevant in assessing the effect of the contempt on the administration of justice: see, for example, Textile Clothing and Footwear Union of Australia v Morrison Country Clothing Australia Pty Ltd (No 2) [2008] FCA 1965 , the subject matter of the principal proceeding does not define the scope or the effect of the contempt on the administration of justice. In Attorney-General v Times Newspaper Ltd [1974] AC 273 at 309 Lord Diplock considered the requirements of the due administration of justice: "The due administration of justice requires first that all citizens should have unhindered access to the constitutionally established courts of criminal or civil jurisdiction for the determination of disputes as to their legal rights and liabilities; secondly, that they should be able to rely upon obtaining in the courts the arbitrament of a tribunal which is free from bias against any party and whose decision will be based upon those facts only that have been proved in evidence adduced before it in accordance with the procedure adopted in courts of law; and thirdly that, once the dispute has been submitted to a court of law, they should be able to rely upon there being no usurpation by any other person of the function of that court to decide it according to law. Conduct which is calculated to prejudice any of these three requirements or to undermine the public confidence that they will be observed is contempt of court."