mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Kennedy v Baker [2004] FCA 562 ; (2004) 135 FCR 520
Outcome: cited
The definition of a 'thing relevant to an indictable offence' in s 3 refers to things that might 'afford evidence' as to the commission of an offence. This concept is not to be understood narrowly. In Adler v Gardiner (2002) 43 ACSR 24 at 29, in a passage quoted with approval by Branson J in Kennedy v Baker [2004] FCA 562 ; (2004) 135 FCR 520 at 543, Hely J rejected a submission that documents fell outside the scope of a warrant issued under s 3E because the documents could never be admitted into evidence at a trial in relation to the warrant offences. His Honour said: "The submission misconceives the reach of the expression 'afford evidence'. Bearing in mind that the power to issue a search warrant is in aid of a criminal investigation, a thing may afford evidence as to the commission of an offence, even though it may not be admissible in evidence at a trial: George v Rockett [1990] HCA 26 ; (1990) 170 CLR 104 at 119. A thing will afford evidence of the commission of an offence if it assists, directly or indirectly, in disclosing that an offence has been committed, or in establishing or revealing the details of the offence, the circumstances in which it was committed, the identity of the person or persons who committed it or any other information material to the investigation of those matters: George v Rockett (supra) at 120. The expression 'will afford evidence' does not import a requirement that the documents must necessarily be sufficient to achieve a conviction; it is sufficient that they have relevance to or probative connection with, an issue arising upon an allegation of the offence alleged: Parker v Churchill (1985) 9 FCR 316 at 326. That includes things which are adjectivally relevant as well as things which are of substantive relevance: Ozzy Tyre &amp; Tube Pty Ltd v Chief Executive Officer of Customs [2000] FCA 891 at [30] - [31] ." The argument that evidential material cannot be made the subject of a s 3E warrant unless it is for use in the criminal prosecution process is similarly flawed.
Case: Harts Australia Ltd v Australian Federal Police (1997) 75 FCR 145
Outcome: cited
The limitation that the applicant seeks to import into Pt 1AA is inconsistent with other authorities. In Harts Australia Ltd v Australian Federal Police (1997) 75 FCR 145 at 153, the Full Court (Hill, Cooper and Whitlam JJ) recognised that search warrants can be sought and issued at an early stage of an investigation when it is unclear whether any criminal prosecution will occur. In Jilani v Wilhelm [2005] FCAFC 269 at [55] - [58] , the Full Court (Dowsett, Jacobson and Greenwood JJ) approved the statements in Hart that I have extracted and added that statutes such as Pt 1AA should not be construed narrowly but consistently with the operational reality applicable to the issue and execution of warrants.
Case: Jilani v Wilhelm [2005] FCAFC 269
Outcome: cited
The limitation that the applicant seeks to import into Pt 1AA is inconsistent with other authorities. In Harts Australia Ltd v Australian Federal Police (1997) 75 FCR 145 at 153, the Full Court (Hill, Cooper and Whitlam JJ) recognised that search warrants can be sought and issued at an early stage of an investigation when it is unclear whether any criminal prosecution will occur. In Jilani v Wilhelm [2005] FCAFC 269 at [55] - [58] , the Full Court (Dowsett, Jacobson and Greenwood JJ) approved the statements in Hart that I have extracted and added that statutes such as Pt 1AA should not be construed narrowly but consistently with the operational reality applicable to the issue and execution of warrants.
Case: Adams v Lambert [2006] HCA 10 ; (2006) 228 CLR 409 
Outcome: discussed
The respondent submits that where notice in terms of s 41(5) was required, but not given, in respect to the alleged missed credits and payments, then the bankruptcy notice is nevertheless invalid and a nullity and is not saved by the operation of s 306 of the Act . This, he submits, is so on two separate grounds. First, the proper completion of item 5 in the Schedule to bankruptcy notices is a requirement made essential by the Act . Second, in this case, the missed payments and credits not reflected against item 5 could reasonably mislead a debtor in the position of Mr Cumins as to what is necessary to comply with the notice. The respondent, in this respect, relies upon Adams v Lambert [2006] HCA 10 ; (2006) 228 CLR 409 at [27] . He submits that as he had not personally made the garnishee and PAYG payments or done the ATO calculations for credits, he could have no idea of what was or was not comprised in the figure $33,456 in Item 5. 64 In Adams v Lambert, upon which the respondent relies, the bankruptcy notice was said to have been invalid because it referred to the incorrect statutory provision under which interest was claimed. It did not concern any asserted overstatement in the bankruptcy notice of the amount due. Section 41(5) had no application. Section 306 did have application but the case is of no assistance in dealing with the nature of the interrelationship between s 41(5) and s 306. 65 Alternatively, even if relevant notice under s 41(5) had been given, s 306 would have no application. I have found that there was no overstatement of the amount due under the bankruptcy notice. No other formal defect or irregularity is relied upon by the respondent. 66 In the present case, the applicant either obtains "the benefit" of s 41(5) because no notice was given, or alternatively, if notice was given she has rebutted the allegations of misstatements in the amount stated to be due under the bankruptcy notice. Section 306 relieves against the invalidating consequences of mistakes in the preparation of a bankruptcy notice: Adams v Lambert at [18] and [34]. There were no mistakes in the present bankruptcy notice. The section assumes the existence of a defect or irregularity. This much was conceded by counsel for the respondent. None exists here. Re Florance; Ex parte Turimetta Properties Pty Ltd [1979] FCA 58 ; (1979) 28 ALR 403 , cited by the respondent is of no assistance on this question.
Case: Australian Securities &amp; Investments Commission v Infomercial Management Group Pty Ltd [2002] VSC 262
Outcome: referred to
In Australian Securities &amp; Investments Commission v Infomercial Management Group Pty Ltd [2002] VSC 262 at [58] the Supreme Court of Victoria held that certain Infomercial schemes were a fraud on the investors, if not on the Australian Taxation Office. These schemes, so claims the respondent, were the ones in which he had invested. 9 Importantly, other than in relation to a very small sum comprised in the 1998 assessment, none of the November 2000 assessments concerned the respondent's investments in the Infomercial Schemes. The assessment for 1998 for $2,619,580.49 was subject to objections by the respondent. These objections failed, as did a subsequent review before the Administrative Appeals Tribunal (AAT). In February 2005 an appeal to this Court from the decision of the AAT was dismissed by consent. The November 2000 assessments for 1995 and 1996 have never been the subject of an application for review or legal challenge. 10 On 15 June 2005 the applicant obtained summary judgment in the Supreme Court of Western Australia against the respondent for the sum of $38,084,522.24, including interest. The respondent did not consent to the judgment but did not oppose it.
Case: Cumins v Deputy Commissioner of Taxation for the Commonwealth of Australia [2007] WASCA 30 
Outcome: referred to
On 23 August 2006 the respondent filed an application in the Supreme Court of Western Australia for an extension of time to set aside the judgment on the basis that he was defrauded by the promoters of a tax avoidance scheme. In February 2007, the respondent's application was dismissed. The respondent filed an application for review by the Court of Appeal, which was ultimately dismissed: Cumins v Deputy Commissioner of Taxation for the Commonwealth of Australia [2007] WASCA 30.
Case: Cumins v Deputy Commissioner of Taxation [2007] FCAFC 207 
Outcome: cited
The respondent also failed in proceedings in this Court by which he had sought to set aside the bankruptcy notice. This culminated in the dismissal of his appeal to the Full Court in December 2007: Cumins v Deputy Commissioner of Taxation [2007] FCAFC 207. 16 On 12 November 2007 the respondent's solicitors wrote to the AAT requesting it to reinstate the AAT proceedings abandoned by the respondent in 2005. This was shortly after the Court of Appeal dismissed the respondent's appeal against the decision refusing an extension of time within which to appeal. The Tribunal has yet to make a decision whether to reinstate the proceedings. The applicant has opposed the application for reinstatement. 17 Since then the respondent has filed a further application in the AAT. The application is to extend time for lodging an application for review of a decision. It concerns the sum of $9,375 which forms a part of the respondent's taxable income for the year ended 30 June 1998 and which was the subject of the amended tax assessment issued on 23 November 2000. It is yet to be determined. 50 The amount of $16,800 is included in the amount of $33,456 contained at item 5 of the Schedule to the bankruptcy notice. That figure also includes two other amounts according to an affidavit sworn by Nola Kathryn Rice, a public service employee with the ATO: Cumins v Deputy Commissioner of Taxation [2007] FCAFC 207 at [10] . The respondent acknowledges this in his affidavit sworn 6 May 2008. The amounts are set out under para [13] above. There was no reason, in my view, for the applicant to think that para [36] was directed to an overcharge of general interest charges related to seven of the garnishee payments totalling $7,350 allegedly made prior to the date of judgment. 51 Further, in my opinion, nothing in para [36] would have alerted the applicant to the matter of the PAYG payments.
Case: Emerson v Wreckair Pty Ltd [1992] FCA 16 ; (1992) 33 FCR 581
Outcome: cited
I reject this submission. On 6 May 2008 the judgment debt was varied by the Supreme Court of Western Australia to reduce it by $31,007.72. This reflects the amount of certain payments and credits which, since the date of judgment, the applicant volunteered should be applied to the judgment debt by way of reduction. The bankruptcy notice claimed an amount that is calculated by reference to the amount of the original judgment. It is not to the point that the amount of that judgment has been reduced: Emerson v Wreckair Pty Ltd [1992] FCA 16 ; (1992) 33 FCR 581 at 587. The affidavit of Deborah Jayne Thiele sworn on 12 May 2008, on behalf of the applicant deposes that the amount of the outstanding debt as at that date was $37,983,152.29. This is the amount contained in the Amended Creditor's Petition less the amount by which the judgment debt was varied as well as the further amount of $17,940 in respect of credits applied after December 2007. It is the amount of the debt on which the applicant relies. This satisfies, as a matter of fact, the requirement under s 52(1)(c) of the Act .
Case: Hussain v King Investment Solutions [2006] FCA 905 ; (2006) 153 FCR 428 
Outcome: followed
The respondent submits that this paragraph constitutes notice for the purposes of s 41(5) and is wide enough to cover all of the missed credits and payments; alternatively, it is wide enough to cover at least the alleged misstatements related to the PAYG payments and garnishee payments. I am satisfied that notice for the purposes of s 41(5) could be given by means of an affidavit served on a creditor. The section is silent as to the method of giving notice and it is not necessary in giving notice to expressly refer to s 41(5): Hussain v King Investment Solutions [2006] FCA 905 ; (2006) 153 FCR 428 at [19] - [20] . 38 Such notice must, by virtue of s 41(5), be given by the debtor within the time allowed for payment under the bankruptcy notice. The bankruptcy notice was deemed to have been served on the respondent on 4 August 2006 pursuant to orders made by Registrar Gilich on 14 July 2006 in the matter of PEG 177 of 2006. It was then amended on 19 July 2006 by a delegate of the Official Receiver such that the respondent was required to comply with the terms of the notice within 21 days after 4 August 2006. The affidavit was served on the Commissioner on 14 August 2006. Accordingly, notice was given within the time allowed. 39 However, in my opinion it does not constitute notice which is wide enough to cover the asserted misstatements in the bankruptcy notice as a whole or alternatively the two related to the PAYG and garnishee payments.
Case: Makhoul v Barnes (1995) 60 FCR 572 
Outcome: cited
First the respondent submits that, even if the PAYG payments of $9,516 did not give rise to an entitlement to a credit for that amount in the bankruptcy notice, I should take into account, as a discretionary consideration, the fact that these payments were made. No issue estoppel arises in this respect: Makhoul v Barnes (1995) 60 FCR 572 at 582. However, the fact that payments were received which did not, as a matter of law, give rise to any entitlement to a credit in that amount for a tax debt in respect of which judgment was given, does not commend itself to an exercise of discretion not to make a sequestration order in the overall circumstances of the case. I would not exercise my discretion to that end.
Case: Pedikaris v Deputy Commissioner of Taxation [No 2] [2007] FCA 2087 
Outcome: discussed
The respondent submits that on this point the decision in Pedikaris v Deputy Commissioner of Taxation [No 2] [2007] FCA 2087 should be followed. Particular reliance is placed on para [99]. I do not agree. At that paragraph, Graham J was considering the relevance of PAYG payments in the context of recovery proceedings. Furthermore, his Honour, at paras [92]-[93], made findings on the issue of when the Commissioner was obliged to give credits for PAYG payments which are entirely consistent with the concurrent findings of Siopis J and the Full Court to which I have referred.
Case: Re Florance; Ex parte Turimetta Properties Pty Ltd [1979] FCA 58 ; (1979) 28 ALR 403
Outcome: referred to
In the present case, the applicant either obtains "the benefit" of s 41(5) because no notice was given, or alternatively, if notice was given she has rebutted the allegations of misstatements in the amount stated to be due under the bankruptcy notice. Section 306 relieves against the invalidating consequences of mistakes in the preparation of a bankruptcy notice: Adams v Lambert at [18] and [34]. There were no mistakes in the present bankruptcy notice. The section assumes the existence of a defect or irregularity. This much was conceded by counsel for the respondent. None exists here. Re Florance; Ex parte Turimetta Properties Pty Ltd [1979] FCA 58 ; (1979) 28 ALR 403 , cited by the respondent is of no assistance on this question.
Case: Re Hanby; Ex parte Flemington Central Spares Pty Ltd (1967) 10 FLR 378
Outcome: referred to
The respondent further submits that the requirement under s 52(1)(c) has not been met because the judgment, as varied, has not been extracted and is accordingly presently unenforceable. Reliance was placed upon the decision of Re Hanby; Ex parte Flemington Central Spares Pty Ltd (1967) 10 FLR 378 at 381. That case concerns a circumstance where the judgment debt relied upon in the bankruptcy proceeding had actually been set aside. That is not the case here. Indeed the respondent's application to set aside the judgment debt was dismissed on 6 May 2008. The respondent has filed an appeal notice against the judgment. The grounds of appeal are not disclosed in this. I was not taken to the merits of the proposed appeal. 70 The respondent submits that I should, in the exercise of my discretion, decline to make a sequestration order for "other sufficient cause": s 52(2)(b) of the Act . Three matters arise.
Case: Re Murdoch; Ex parte Australia &amp; New Zealand Banking Group Ltd [1994] FCA 737
Outcome: discussed
I do not accept these submissions. A bankruptcy notice is not liable to be set aside by reason only of an overstatement unless the debtor gives notice to the creditor under s 41(5). I have found that such notice was required but not given. Accordingly, in my opinion, s 306 does not arise for consideration. I agree with what Sackville J said in obiter in Re Murdoch; Ex parte Australia &amp; New Zealand Banking Group Ltd [1994] FCA 737 at p 10 that where no notice under s 41(5) was given then the bankruptcy notice would not be invalid even if the overstatement of the amount due is capable of misleading the debtor. His Honour's remarks sat in the context of his consideration of s 306 of the Act in respect to an overstatement in a bankruptcy notice but where no notice under s 41(5) had been given. The parties had proceeded on the assumption that s 306 had application in those circumstances. His Honour doubted the correctness of the assumption but the case was decided on the basis of it. His Honour's doubt was in my opinion, soundly based.
Case: Robert Hudson Junior v Thomas James Donald [1997] FCA 852 
Outcome: discussed
In Robert Hudson (Junior) v Thomas James Donald [1997] FCA 852 , decided before St George , Lindgren J also considered the application of s 41(5). The case concerned a bankruptcy notice, the form of which, as in this case, was that set out in Form 1, Schedule 1, prescribed under the Bankruptcy Regulations 1996 (Cth), reg 4.02.
Case: SGRO v Liberty Funding Pty Ltd (2004) 207 ALR 625 
Outcome: referred to
I respectfully consider that the wider construction in Robert Hudson Jnr is to be preferred to the narrow construction in St George . It would appear that the decision in Robert Hudson Jnr was not brought to the attention of the Court in St George , nor does it appear from his Honour's reasons that there was full argument on the question. Accordingly, I would respectfully adopt the reasoning on this point in Robert Hudson Jnr . In doing so, I am conscious that St George was followed by the Federal Magistrates Court in SGRO v Liberty Funding Pty Ltd (2004) 207 ALR 625. Once again, however, Robert Hudson Jnr was not cited by the parties or considered by the Court. Furthermore, s 41(5), in contrast to s 306, is not expressed in terms of the existence of a "defect" in a bankruptcy notice. Rather, it concerns whether the amount specified in the bankruptcy notice as due to the creditor exceeds the amount in fact due. Inevitably any overstatement will broadly be for one or two reasons. First, there is an error or errors in one or more of items 1-5 set out in column 2 of the Schedule to the bankruptcy notice. Then, when items 1-5 are added up they produce an excessive total at item 6. Second, there is an arithmetical error in adding up items 1-5. Of course there could be errors of both kinds occurring in the one notice. The intent of s 41(5) is, in my opinion, to consider the question of whether the amount stated is excessive as well as why that is the case. This approach to its construction is consistent with the observations of the Full Court in Seovic at [36] to which I have referred concerning the need for the debtor, when giving notice under s 41(5), to provide sufficient information to enable the creditor to identify the nature of the misstatement. I apprehend that this was intended to mean that information needs to be provided disclosing not just that the amount stated as due is excessive but the reason(s) why that is said to be so.
Case: White Industries Australia Ltd v Commissioner of Taxation [2003] FCA 599 ; (2003) 129 FCR 276 
Outcome: cited
The second matter concerns the pending AAT proceedings. The respondent makes the following submissions. It cannot be said that the result of success by him in the proceedings before the AAT to have that matter re-opened and the interest deduction for borrowings in respect of the Infomercials allowed, would be that there was, in any event, still at least, part of the assessment, unaffected by the Infomercial interest, standing. If he succeeds in the AAT proceedings, the Commissioner must implement the findings of the AAT and a fresh assessment would have to be issued: s 14ZZL of the Taxation Administration Act 1953 (Cth) and s 170(1) of the Income Tax Assessment Act 1936 (Cth). Only if and when that assessment occurs would there be an enforceable liability against him. There is no liability on him to pay tax until the relevant notice of assessment has been given: White Industries Australia Ltd v Commissioner of Taxation [2003] FCA 599 ; (2003) 129 FCR 276 at [27] , 282.
Case: Licul v Corney [1976] HCA 6 ; (1976) 180 CLR 213
Outcome: cited
Whether a judgment if final, rather than interlocutory, usually depends on whether it finally determines the rights of the parties in respect of the matter of dispute between them: Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423 at 443 per Windeyer J; Licul v Corney [1976] HCA 6 ; (1976) 180 CLR 213 at 225; Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20 ; (1981) 147 CLR 246 (' Carr ') at 248; Re Luck [2003] HCA 70 ; (2003) 203 ALR 1 (' Luck ') at [4]. In Carr at 248 and in Luck at [4], it was observed that in applying this test, the Court must have regard to the legal effect, as distinct from the practical effect, of the judgment. In those cases, the full expression used was 'finally determine[s] the rights of the parties in a principal cause pending between them'.
Case: Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20 ; (1981) 147 CLR 246
Outcome: cited
Whether a judgment if final, rather than interlocutory, usually depends on whether it finally determines the rights of the parties in respect of the matter of dispute between them: Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423 at 443 per Windeyer J; Licul v Corney [1976] HCA 6 ; (1976) 180 CLR 213 at 225; Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20 ; (1981) 147 CLR 246 (' Carr ') at 248; Re Luck [2003] HCA 70 ; (2003) 203 ALR 1 (' Luck ') at [4]. In Carr at 248 and in Luck at [4], it was observed that in applying this test, the Court must have regard to the legal effect, as distinct from the practical effect, of the judgment. In those cases, the full expression used was 'finally determine[s] the rights of the parties in a principal cause pending between them'.