mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Cruse v CFMEU [2007] FMCA 1873 
Outcome: considered
The respondents have other industrial "background". The applicant pointed to the decision in Cruse v CFMEU [2007] FMCA 1873. In that case the CFMEU was found to have breached s 38 in connection with an unlawful strike lasting two and a half days. In Australian Competition and Consumer Commissioner v CFMEU [2006] FCA 1730 ; [2007] ATPR 42-140 all four of the present respondents were found to have engaged in secondary boycott action by preventing or hindering the supply of concrete to a site by forming a picket line at the gate. Both Mr McDonald and Mr Powell have had their rights of entry revoked or suspended because of their conduct in connection with the exercise of such rights. The applicant asserts that the CFMEU has, on numerous occasions, been found to have contravened other provisions of industrial legislation involving coercive behaviour and false and misleading statements, advising or organising action with intent to coerce an employer and breaching orders. Unfortunately, save in the case of the Leighton matter, I was not told whether this conduct occurred before or after that with which I am present concerned. In Leighton , the relevant conduct occurred in March 2005. Normally, only conduct preceding that in question is taken into account in fixing penalties. In any event, although the respondents have apparently engaged in prior industrial misconduct, I have insufficient information to justify my according great weight to such misconduct.
Case: MZXJN v Minister for Immigration and Multicultural Affairs [2006] FCA 1624
Outcome: referred to
In the days preceding the hearing, Mr Jewiss through a corporation sent to the Court (but not to the Commissioner's legal representatives) medical certificates indicating that he was unfit for work by reason of illness for the period from 6 to 20 November 2006. He did not attend the hearing. He sent a letter to the Court indicating that he would be unable to do so because of illness. There is no further medical evidence to indicate his ongoing incapacity for work after 20 November 2006, or more importantly, any medical evidence stating that he was unfit to appear in Court on 20 November 2006 to conduct the proceedings or to appear in Court to support any application for an adjournment: see e.g. the remarks of Middleton J in MZXJN v Minister for Immigration and Multicultural Affairs [2006] FCA 1624 at [13] - [14] , adopting the words of Lindgren J in NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559. There is no detailed medical report from any medical practitioner.
Case: NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559
Outcome: referred to
In the days preceding the hearing, Mr Jewiss through a corporation sent to the Court (but not to the Commissioner's legal representatives) medical certificates indicating that he was unfit for work by reason of illness for the period from 6 to 20 November 2006. He did not attend the hearing. He sent a letter to the Court indicating that he would be unable to do so because of illness. There is no further medical evidence to indicate his ongoing incapacity for work after 20 November 2006, or more importantly, any medical evidence stating that he was unfit to appear in Court on 20 November 2006 to conduct the proceedings or to appear in Court to support any application for an adjournment: see e.g. the remarks of Middleton J in MZXJN v Minister for Immigration and Multicultural Affairs [2006] FCA 1624 at [13] - [14] , adopting the words of Lindgren J in NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559. There is no detailed medical report from any medical practitioner.
Case: Commissioner of Taxation v Dalco [1990] HCA 3 ; (1990) 168 CLR 614
Outcome: cited
The Commissioner contends that there is now no basis upon which the claims asserted in the Amended Application and the Amended Statement of Claim could succeed because: 1. those issues have been ventilated and determined in the District Court proceedings, and 2. in any event, s 177 of the ITAA precludes all challenges against the "due making of an assessment", and the nature of the allegations are in fact in substance challenges to the due making of the assessments the subject of the notices: see Commissioner of Taxation v Dalco [1990] HCA 3 ; (1990) 168 CLR 614.
Case: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125
Outcome: cited
It is plain that s 31A of the FCA Act is intended to relax the test imposed by General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 as to the circumstances in which a proceeding may be struck out or summarily dismissed. 27 Section 31A(2) provides that the Court may exercise that power if the Court is satisfied that the applicant has no reasonable prospect of successfully prosecuting the proceeding or the relevant part of the proceeding, and s 31A(3) explains to a degree when a proceeding should be found to have no reasonable prospect of success. 29 In my judgment, the Amended Application and the Amended Statement of Claim should be dismissed, whether one applies the test prescribed by s 31A of the FCA Act, or whether one applies O 20 r 2 of the Federal Court Rules , as explained in General Steel Industries . In my view, there is simply no real question to be tried on the issues raised by the Amended Application and by the Amended Statement of Claim in the circumstances of this matter. 30 It is appropriate first to advert briefly to the statutory background or context in which the assessments came to be made and the Notices issued. Section 166 of the ITAA requires the Commissioner to make an assessment of the taxable income of a taxpayer and of the tax payable thereon. If the Commissioner is not satisfied with the tax information provided by the taxpayer in the tax return furnished by the taxpayer, the Commissioner is empowered by s 167 to make an assessment of the amount upon which, in the Commissioner's judgment, income tax ought to be levied. Section 174(1) then requires that a notice of assessment of the tax to be paid be served on the taxpayer. Section 175 provides that the validity of any assessment shall not be affected by reason that any of the provisions of the ITAA have not been complied with. Relevantly to the District Court proceedings, for the reasons which are referred to above, s 177 provides that the production of the Notices under the hand of the Commissioner is conclusive evidence of the due making of the assessment, and (other than in respect of proceedings under Pt IVC of the TAA by a review or appeal relating to the assessment) is also conclusive evidence of the amount and particulars of the assessments as being correct. The procedure to be followed by a taxpayer dissatisfied with an assessment is the objection and appeal process available under Pt IVC of the TAA.
Case: Tepperova v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1147
Outcome: referred to
Section 31A commenced operation on 1 December 2005. It applies only in relation to "proceedings commenced on or after the commencement day": see item 44 of Sch 1 to the Migration Litigation Reform Act 2005 , and item 7 of that Act which inserted s 31A into the FCA Act. The Commissioner has submitted that s 31A applies in this instance because the Amended Application and the Amended Statement of Claim were filed only on 15 August 2006, and that the assertion in this proceeding seeking to invalidate the Notices by reason of improper conduct on the part of officers of the respondent was first made only by the "Statement of Claim" filed on 7 July 2006. The effect of the "Statement of Claim" first filed on 7 July 2006 would appear, by O 13 rr 3(3) and 3A of the Federal Court Rules , to operate from that day as a proceeding commenced on or after that day: see Tepperova v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1147 at [27] . I do not need, however, to decide that question.
Case: Briglia v Commissioner of Taxation [2000] FCA 443
Outcome: discussed
In Briglia v Commissioner of Taxation [2000] FCA 443 at [6] , Kenny J pointed out that, although s 177(1) of the ITAA may operate to preclude a Court from examining the validity of an assessment once a notice of assessment is tendered, it can only operate provided there has been a bona fide attempt by the Commissioner to exercise the power of assessment, the attempt to exercise the assessment power relates to the subject matter of the ITAA, and the exercise of the assessment power is reasonably capable of reference to the Commissioner's power of assessment. That expression of the limitations upon the apparent scope of s 177(1) is derived from the observations of Dixon J in R v Hickman; Ex parte Fox [1945] HCA 53 ; (1945) 70 CLR 598 at 614. It is clear from Deputy Commissioner of Taxation (Cth) v Richard Walter Pty Ltd [1995] HCA 23 ; (1995) 183 CLR 168 that s 177(1) does not, and cannot, deprive the High Court of its constitutional jurisdiction, and to the extent to which this Court is conferred with such jurisdiction under s 39B(1) of the Judiciary Act 1903 (Cth) cannot deprive this Court of its jurisdiction under that provision. The so called Hickman principles, based upon the decision in Hickman , and which formed the basis of Kenny J's observations in Briglia , were considered by the High Court in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476. I do not think it is necessary to explore whether the result of the decision in Plaintiff S157/2002 is to explain the application of the Hickman principles in a way which may broaden the capacity of the taxpayer to challenge the due making of an assessment notwithstanding s 177(1). That is simply because, in my view, on any analysis of the allegations made by Mr Jewiss in the Amended Application and in the Amended Statement of Claim, they cannot establish relevantly a failure on the part of the Commissioner in the due making of the assessments.
Case: R v Hickman; Ex parte Fox [1945] HCA 53 ; (1945) 70 CLR 598
Outcome: referred to
In Briglia v Commissioner of Taxation [2000] FCA 443 at [6] , Kenny J pointed out that, although s 177(1) of the ITAA may operate to preclude a Court from examining the validity of an assessment once a notice of assessment is tendered, it can only operate provided there has been a bona fide attempt by the Commissioner to exercise the power of assessment, the attempt to exercise the assessment power relates to the subject matter of the ITAA, and the exercise of the assessment power is reasonably capable of reference to the Commissioner's power of assessment. That expression of the limitations upon the apparent scope of s 177(1) is derived from the observations of Dixon J in R v Hickman; Ex parte Fox [1945] HCA 53 ; (1945) 70 CLR 598 at 614. It is clear from Deputy Commissioner of Taxation (Cth) v Richard Walter Pty Ltd [1995] HCA 23 ; (1995) 183 CLR 168 that s 177(1) does not, and cannot, deprive the High Court of its constitutional jurisdiction, and to the extent to which this Court is conferred with such jurisdiction under s 39B(1) of the Judiciary Act 1903 (Cth) cannot deprive this Court of its jurisdiction under that provision. The so called Hickman principles, based upon the decision in Hickman , and which formed the basis of Kenny J's observations in Briglia , were considered by the High Court in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476. I do not think it is necessary to explore whether the result of the decision in Plaintiff S157/2002 is to explain the application of the Hickman principles in a way which may broaden the capacity of the taxpayer to challenge the due making of an assessment notwithstanding s 177(1). That is simply because, in my view, on any analysis of the allegations made by Mr Jewiss in the Amended Application and in the Amended Statement of Claim, they cannot establish relevantly a failure on the part of the Commissioner in the due making of the assessments.
Case: Deputy Commissioner of Taxation (Cth) v Richard Walter Pty Ltd [1995] HCA 23 ; (1995) 183 CLR 168
Outcome: referred to
In Briglia v Commissioner of Taxation [2000] FCA 443 at [6] , Kenny J pointed out that, although s 177(1) of the ITAA may operate to preclude a Court from examining the validity of an assessment once a notice of assessment is tendered, it can only operate provided there has been a bona fide attempt by the Commissioner to exercise the power of assessment, the attempt to exercise the assessment power relates to the subject matter of the ITAA, and the exercise of the assessment power is reasonably capable of reference to the Commissioner's power of assessment. That expression of the limitations upon the apparent scope of s 177(1) is derived from the observations of Dixon J in R v Hickman; Ex parte Fox [1945] HCA 53 ; (1945) 70 CLR 598 at 614. It is clear from Deputy Commissioner of Taxation (Cth) v Richard Walter Pty Ltd [1995] HCA 23 ; (1995) 183 CLR 168 that s 177(1) does not, and cannot, deprive the High Court of its constitutional jurisdiction, and to the extent to which this Court is conferred with such jurisdiction under s 39B(1) of the Judiciary Act 1903 (Cth) cannot deprive this Court of its jurisdiction under that provision. The so called Hickman principles, based upon the decision in Hickman , and which formed the basis of Kenny J's observations in Briglia , were considered by the High Court in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476. I do not think it is necessary to explore whether the result of the decision in Plaintiff S157/2002 is to explain the application of the Hickman principles in a way which may broaden the capacity of the taxpayer to challenge the due making of an assessment notwithstanding s 177(1). That is simply because, in my view, on any analysis of the allegations made by Mr Jewiss in the Amended Application and in the Amended Statement of Claim, they cannot establish relevantly a failure on the part of the Commissioner in the due making of the assessments.
Case: Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476
Outcome: referred to
In Briglia v Commissioner of Taxation [2000] FCA 443 at [6] , Kenny J pointed out that, although s 177(1) of the ITAA may operate to preclude a Court from examining the validity of an assessment once a notice of assessment is tendered, it can only operate provided there has been a bona fide attempt by the Commissioner to exercise the power of assessment, the attempt to exercise the assessment power relates to the subject matter of the ITAA, and the exercise of the assessment power is reasonably capable of reference to the Commissioner's power of assessment. That expression of the limitations upon the apparent scope of s 177(1) is derived from the observations of Dixon J in R v Hickman; Ex parte Fox [1945] HCA 53 ; (1945) 70 CLR 598 at 614. It is clear from Deputy Commissioner of Taxation (Cth) v Richard Walter Pty Ltd [1995] HCA 23 ; (1995) 183 CLR 168 that s 177(1) does not, and cannot, deprive the High Court of its constitutional jurisdiction, and to the extent to which this Court is conferred with such jurisdiction under s 39B(1) of the Judiciary Act 1903 (Cth) cannot deprive this Court of its jurisdiction under that provision. The so called Hickman principles, based upon the decision in Hickman , and which formed the basis of Kenny J's observations in Briglia , were considered by the High Court in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476. I do not think it is necessary to explore whether the result of the decision in Plaintiff S157/2002 is to explain the application of the Hickman principles in a way which may broaden the capacity of the taxpayer to challenge the due making of an assessment notwithstanding s 177(1). That is simply because, in my view, on any analysis of the allegations made by Mr Jewiss in the Amended Application and in the Amended Statement of Claim, they cannot establish relevantly a failure on the part of the Commissioner in the due making of the assessments.
Case: Shumack v Commissioner, Australian Federal Police [2005] FCA 1476
Outcome: cited
In my judgment, the matters which Mr Jewiss now raises in the Amended Application and in the Amended Statement of Claim correspond with the allegations made in the District Court proceedings, including on his appeal to the Full Court of the Supreme Court of South Australia. It would be an abuse of the Court's processes to permit Mr Jewiss to re-litigate in this proceeding the same matters that have previously been determined by the District Court: cf Shumack v Commissioner, Australian Federal Police [2005] FCA 1476 at [4] . There is no prospect of Mr Jewiss now succeeding on those claims because they have already been decided adversely to him.
Case: Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd (Receivers and Managers appointed in Liquidation) (1993) 115 ALR 377
Outcome: referred to
The parties in the District Court proceedings and in this proceeding are the same. The allegations generally under the umbrella of bad faith are the same. They relate to the circumstances of and conduct at the search of Mr Jewiss' premises, conduct subsequent to the raid in respect of Mr Jewiss, and use of documents which are allegedly known to be false in making the assessments and issuing the Notices. Those issues were all raised by Mr Jewiss in the District Court proceedings. They have been resolved adversely to him. There is no reason why he should be permitted to re-litigate those matters. It is in precisely such circumstances that the Court in other matters has found there to have been an abuse of process of the Court and to have exercised the power to have dismissed the proceedings: see e.g. Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd (Receivers and Managers appointed in Liquidation) (1993) 115 ALR 377 at 398. As Dixon J observed in Blair v Curran [1939] HCA 23 ; (1939) 62 CLR 464 at 531: "A judicial determination directly involving an issue of fact or of law disposes once and for all of the issue, so that it cannot afterwards be raised between the same parties or their privies."
Case: Blair v Curran [1939] HCA 23 ; (1939) 62 CLR 464
Outcome: referred to
The parties in the District Court proceedings and in this proceeding are the same. The allegations generally under the umbrella of bad faith are the same. They relate to the circumstances of and conduct at the search of Mr Jewiss' premises, conduct subsequent to the raid in respect of Mr Jewiss, and use of documents which are allegedly known to be false in making the assessments and issuing the Notices. Those issues were all raised by Mr Jewiss in the District Court proceedings. They have been resolved adversely to him. There is no reason why he should be permitted to re-litigate those matters. It is in precisely such circumstances that the Court in other matters has found there to have been an abuse of process of the Court and to have exercised the power to have dismissed the proceedings: see e.g. Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd (Receivers and Managers appointed in Liquidation) (1993) 115 ALR 377 at 398. As Dixon J observed in Blair v Curran [1939] HCA 23 ; (1939) 62 CLR 464 at 531: "A judicial determination directly involving an issue of fact or of law disposes once and for all of the issue, so that it cannot afterwards be raised between the same parties or their privies."
Case: Bodney v Western Australia [2001] FCA 297
Outcome: cited
The policy informing s 67(1) is plain enough. Fully informed decision-making and finality in respect of determinations relating to the same area are central to it: see also s 13(1) and s 61A(1). This said the section provides no real guidance in making orders under s 67(2) though it is unsurprising that it does not given the varying circumstances that can attend overlap claims. Nonetheless, its purpose seems clearly to be tied to facilitating the orderly and efficient administration of justice where claims overlap: see e.g. Bodney v Western Australia [2001] FCA 297 at [2] . 6 The Arabunna's contentions, in pr&eacute;cis form, rely (i) on Mansfield J's apparent lack of reasons for the overlap proceedings orders; (ii) the inability of the Arabunna to be able to prepare for a hearing in July 2007 given the lack of available funding (I would note in passing that while both the Kokatha and Barngarla claimants have been denied funding by the Aboriginal Legal Rights Movement, the Arabunna's funding application has not yet been determined); (iii) the lack of opposition to the motion from the other claimant groups; (iv) the prospect of mediation and settlement of the claims over Overlap Area 20; and (v) the significance of the area to the Arabunna people. 7 In opposition to the claim, the State points out that (i) while at least the Kokatha claim will be resolved under the present arrangements, no single one of the three or possibly four claims will be resolved in its entirety if the motion is successful; (ii) a lack of funding does not excuse an applicant from pursuing an action it brought and neither the Kokatha nor the Barngarla claimants are funded; (iii) Overlap Area 20 is significant to other claimants; (iv) for the Kokatha proceedings to be the subject of a fully informed decision (it being the only full claim being prepared for trial) the whole of its factual matrix should be before the Court especially as material relating to Overlap Area 20 might well inform decision-making relating to the contiguous area which is the subject of overlapping claims between the Kokatha and Barngarla claimants as also the prospective Kuyani-Wilyaru claimants.
Case: SZCIA v MIMA [2006] FCA 238
Outcome: cited
In summary those submissions were that the reason for the Tribunal's decision was that the Tribunal, having read all the material and having evaluated its content and weight was unable to reach the specified mental state; that is the Tribunal was not satisfied that the appellant had a well founded fear of persecution because of subjectively perceived inadequacies in the information ( SZCIA v MIMA [2006] FCA 238 per Allsop J at [12]; SZEZI v MIMIA [2005] FCA 1195 per Allsop J at [29]). This was a finding open to the Tribunal and no error can be found in the approach of the learned Federal Magistrate.
Case: SZEZI v MIMIA [2005] FCA 1195
Outcome: cited
In summary those submissions were that the reason for the Tribunal's decision was that the Tribunal, having read all the material and having evaluated its content and weight was unable to reach the specified mental state; that is the Tribunal was not satisfied that the appellant had a well founded fear of persecution because of subjectively perceived inadequacies in the information ( SZCIA v MIMA [2006] FCA 238 per Allsop J at [12]; SZEZI v MIMIA [2005] FCA 1195 per Allsop J at [29]). This was a finding open to the Tribunal and no error can be found in the approach of the learned Federal Magistrate.