mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Amalgamated Television Services Pty Ltd v Australian Broadcasting Tribunal (1984) 1 FCR 409
Outcome: cited
In view of the respondent's submissions, it is necessary to consider the effect of s 4(1). By the operation of s 4(1), the Agreements Act incorporates the Assessment Act subject to s 4(2). However, each Act retains its own identity and the imposition of the relevant tax is still imposed by and at the rates declared by the Income Tax (Dividends, Interest and Royalties Withholding Tax) Act 1974 (Cth) and the Income Tax Rates Act 1986 (Cth) by reference to the Assessment Act. The incorporation has the consequence, as a matter of a drafting technique, of incorporating the text of the Assessment Act into the Agreements Act. As Lockhart J said in Amalgamated Television Services Pty Ltd v Australian Broadcasting Tribunal (1984) 1 FCR 409 at 413: It is not uncommon to find in an Act a provision that an earlier Act is incorporated and shall be read as one with the later Act. The effect of such a provision is to transpose the earlier into the later Act or to write every provision of the earlier Act into the later Act as if they had been actually printed into it. It is a rule of construction of statutes; but it cannot be used in effect to amend the provisions of the earlier Act which is to be read as one with the later Act. Sometimes an Act provides that it is incorporated and shall be read as one with an earlier Act. The effect is the same namely, to transpose the later into the earlier Act. See generally the Canada Southern Railway Co. v The International Bridge Co (1883) 8 AC 723 at 727, per Lord Selborne; Osborne v The Commonwealth [1911] HCA 19 ; (1911) 12 CLR 321 at 342-343, per Barton J Perpetual Trustee Co (Ltd) v Wittscheibe (1940) 40 SR (NSW) 501 at 510, per Jordan CJ; Cadbury-Fry-Pascall Pty Ltd v Federal Commissioner of Taxation [1944] HCA 31 ; (1944) 70 CLR 362 at 388, per Williams J, and the cases there cited; Tasman Timber Ltd v Minister for Industry and Commerce (1983) 46 ALR 149.
Case: Director of Public Prosecutions (NSW) v Alderman (1998) 45 NSWLR 526
Outcome: referred to
For the purposes of this case, it is unnecessary to go any further into the issues mentioned by Sheller JA in Director of Public Prosecutions (NSW) v Alderman (1998) 45 NSWLR 526 at 532-533 and the question of whether the incorporation may effect an amendment to the earlier Act.
Case: James Hardie &amp; Coy Pty Ltd v Seltsam Pty Ltd [1998] HCA 78 ; (1998) 196 CLR 53
Outcome: cited
Even if the purpose for the introduction of s 3(11), or the mischief to which s 3(11) was addressed, was in fact to effectively modify or affect the operation of s 128B(3)(h)(ii), my view is that the purpose has not been implemented. I am mindful of the comments of Kirby J in James Hardie &amp; Coy Pty Ltd v Seltsam Pty Ltd [1998] HCA 78 ; (1998) 196 CLR 53 at 82 that "unless driven to the result by unyielding words, no judicial satisfaction is to be derived from concluding that the manifest target of legislation has been missed". However, again assuming in favour of the purpose contended for by the respondent, I cannot ignore the actual words of the legislation: see Mills v Meeking [1990] HCA 6 ; (1990) 169 CLR 214 at 235, and R v L (1994) 49 FCR 534 at 538. In my view, the text and context of s 3(11) in the Agreements Act does not allow the court to read that provision as being reasonably capable of applying to the operation of the withholding tax provisions, or more specifically to the operation of s 128B(3)(h)(ii): see generally the discussion in Pearce DC and Geddes RS, Statutory Interpretation in Australia (6 th ed, Butterworths, 2006) pp 51-58. Even adopting a position which would allow courts a flexible approach to overcome what could be said to be a drafting failure to facilitate the legislative intention, the respondent in this case cannot overcome the text and context in which s 3(11) appears. The Court would need to embark upon the task of impermissibly re-writing the Agreements Act to facilitate the result the respondent seeks. I would need to transform a provision dealing only with the scope of the taxing power into one that effectively imposes a tax.
Case: McGillivray v Piper (2000) 182 ALR 282
Outcome: cited
Undoubtedly, the drafting technique of incorporation by reference may require necessary adjustments or modifications to be made in the incorporated provisions. In Cadbury-Fry-Pascall Pty Ltd v Commissioner of Taxation [1944] HCA 31 ; (1944) 70 CLR 362 at 388 Williams J said: The tax is imposed by the Tax Act, which prescribes the rates of taxation. This Act incorporates the Assessment Act and provides that the two Acts are to be read together. My own view, to which I adhere, as to the effect of such a section, is stated in Perpetual Trustee Co (Ltd) v Wittscheibe as follows: "In re Woods' Estate; Ex parte Her Majesty's Commissioners of Works &amp; Buildings the Court of Appeal held that if a subsequent Act bring into itself by reference some of the clauses of a former Act, the legal effect of that is to write those sections into the new Act just as if they had been actually printed into it. It has also been held that where two Acts are to be read together the Court must construe every part of each of them as if it had been contained in one Act, unless there is some manifest discrepancy making it necessary to hold that the latter Act has to some extent modified something found in the earlier Act: see Hart v Hudson Bros Ltd ; Phillips v Parnaby , and Williams v Tooth &amp; Co Ltd ." (Footnotes omitted). See also McGillivray v Piper (2000) 182 ALR 282.
Case: Mills v Meeking [1990] HCA 6 ; (1990) 169 CLR 214
Outcome: cited
Even if the purpose for the introduction of s 3(11), or the mischief to which s 3(11) was addressed, was in fact to effectively modify or affect the operation of s 128B(3)(h)(ii), my view is that the purpose has not been implemented. I am mindful of the comments of Kirby J in James Hardie &amp; Coy Pty Ltd v Seltsam Pty Ltd [1998] HCA 78 ; (1998) 196 CLR 53 at 82 that "unless driven to the result by unyielding words, no judicial satisfaction is to be derived from concluding that the manifest target of legislation has been missed". However, again assuming in favour of the purpose contended for by the respondent, I cannot ignore the actual words of the legislation: see Mills v Meeking [1990] HCA 6 ; (1990) 169 CLR 214 at 235, and R v L (1994) 49 FCR 534 at 538. In my view, the text and context of s 3(11) in the Agreements Act does not allow the court to read that provision as being reasonably capable of applying to the operation of the withholding tax provisions, or more specifically to the operation of s 128B(3)(h)(ii): see generally the discussion in Pearce DC and Geddes RS, Statutory Interpretation in Australia (6 th ed, Butterworths, 2006) pp 51-58. Even adopting a position which would allow courts a flexible approach to overcome what could be said to be a drafting failure to facilitate the legislative intention, the respondent in this case cannot overcome the text and context in which s 3(11) appears. The Court would need to embark upon the task of impermissibly re-writing the Agreements Act to facilitate the result the respondent seeks. I would need to transform a provision dealing only with the scope of the taxing power into one that effectively imposes a tax.
Case: R v L (1994) 49 FCR 534
Outcome: cited
Even if the purpose for the introduction of s 3(11), or the mischief to which s 3(11) was addressed, was in fact to effectively modify or affect the operation of s 128B(3)(h)(ii), my view is that the purpose has not been implemented. I am mindful of the comments of Kirby J in James Hardie &amp; Coy Pty Ltd v Seltsam Pty Ltd [1998] HCA 78 ; (1998) 196 CLR 53 at 82 that "unless driven to the result by unyielding words, no judicial satisfaction is to be derived from concluding that the manifest target of legislation has been missed". However, again assuming in favour of the purpose contended for by the respondent, I cannot ignore the actual words of the legislation: see Mills v Meeking [1990] HCA 6 ; (1990) 169 CLR 214 at 235, and R v L (1994) 49 FCR 534 at 538. In my view, the text and context of s 3(11) in the Agreements Act does not allow the court to read that provision as being reasonably capable of applying to the operation of the withholding tax provisions, or more specifically to the operation of s 128B(3)(h)(ii): see generally the discussion in Pearce DC and Geddes RS, Statutory Interpretation in Australia (6 th ed, Butterworths, 2006) pp 51-58. Even adopting a position which would allow courts a flexible approach to overcome what could be said to be a drafting failure to facilitate the legislative intention, the respondent in this case cannot overcome the text and context in which s 3(11) appears. The Court would need to embark upon the task of impermissibly re-writing the Agreements Act to facilitate the result the respondent seeks. I would need to transform a provision dealing only with the scope of the taxing power into one that effectively imposes a tax.
Case: Cooke v Plauen Holdings [2001] FMCA 91
Outcome: cited
Whether an act does constitute sexual harassment in terms of s 28A SD Act clearly depends upon the nature or the quality of the act: Cowdroy J in Obieta v New South Wales Dept of Education and Training [2007] FCA 86 at [238] , Cooke v Plauen Holdings [2001] FMCA 91 at [25] . It is not immediately clear to me that conduct of the first respondent which his Honour found was harassment of the appellant in the context of her wish to form a relationship with him, was not, in the absence of a hearing where relevant evidence and legal principles were considered, "unwelcome conduct of a sexual nature in relation to the person harassed". Conduct in the nature of persistent personal invitations has, in some cases, and in conjunction with other acts, been held to constitute sexual harassment (cf for example Doyle v Riley (1995) EOC 92-748). Further, it has been contemplated that aggressive conduct following a rejection could constitute harassment of a sexual nature (note comments of Driver FM in Cooke [2001] FMCA 91 at ([30]).
Case: Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62
Outcome: cited
It may well be that the conduct of the first respondent was not sexual harassment; further it may be the case that, for reasons submitted by the second respondent, any liability for the conduct of the first respondent could not be visited on the second respondent. Indeed, the first respondent claimed from the bar table before me that she was not an employee of the second respondent at the material time. However evaluating comprehensive arguments and evidence of the parties to determine whether the conduct of the first respondent did constitute sexual harassment and if so, whether the second respondent could be liable for the conduct of the first respondent (an issue not canvassed by his Honour other than to formulate his reasons on the assumption that the first respondent was an employee of the second respondent at all material times) would require a full hearing of the matter. As Dixon J said in Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 at 91: ...once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.
Case: Doyle v Riley (1995) EOC 92-748
Outcome: cited
Whether an act does constitute sexual harassment in terms of s 28A SD Act clearly depends upon the nature or the quality of the act: Cowdroy J in Obieta v New South Wales Dept of Education and Training [2007] FCA 86 at [238] , Cooke v Plauen Holdings [2001] FMCA 91 at [25] . It is not immediately clear to me that conduct of the first respondent which his Honour found was harassment of the appellant in the context of her wish to form a relationship with him, was not, in the absence of a hearing where relevant evidence and legal principles were considered, "unwelcome conduct of a sexual nature in relation to the person harassed". Conduct in the nature of persistent personal invitations has, in some cases, and in conjunction with other acts, been held to constitute sexual harassment (cf for example Doyle v Riley (1995) EOC 92-748). Further, it has been contemplated that aggressive conduct following a rejection could constitute harassment of a sexual nature (note comments of Driver FM in Cooke [2001] FMCA 91 at ([30]).
Case: Obieta v New South Wales Dept of Education and Training [2007] FCA 86
Outcome: cited
Whether an act does constitute sexual harassment in terms of s 28A SD Act clearly depends upon the nature or the quality of the act: Cowdroy J in Obieta v New South Wales Dept of Education and Training [2007] FCA 86 at [238] , Cooke v Plauen Holdings [2001] FMCA 91 at [25] . It is not immediately clear to me that conduct of the first respondent which his Honour found was harassment of the appellant in the context of her wish to form a relationship with him, was not, in the absence of a hearing where relevant evidence and legal principles were considered, "unwelcome conduct of a sexual nature in relation to the person harassed". Conduct in the nature of persistent personal invitations has, in some cases, and in conjunction with other acts, been held to constitute sexual harassment (cf for example Doyle v Riley (1995) EOC 92-748). Further, it has been contemplated that aggressive conduct following a rejection could constitute harassment of a sexual nature (note comments of Driver FM in Cooke [2001] FMCA 91 at ([30]).
Case: Rana v University of South Australia [2004] FCA 559 ; (2004) 136 FCR 344
Outcome: cited
In Rana v University of South Australia [2004] FCA 559 ; (2004) 136 FCR 344 in considering an appeal from a decision of a Federal Magistrate to summarily dismiss an application, Lander J made a number of observations which are applicable to the case before me. His Honour said at 354-355: "The need for caution must be even more obvious in the Federal Magistrates Court when considering an application to summarily dismiss a claim for failing to disclose a reasonable cause of action... There are no pleadings. There is, therefore, no concise document from which one can easily discern the existence or otherwise of a cause of action. ... The Court, on hearing an application under FMC Rules 4.04 (1)(c) and 13.10, could not be expected to weigh the evidence of the parties to determine whether the applicant had disclosed a reasonable cause of action. Again, that would amount to a trial of the action. What the applicant must disclose is a reasonable cause of action - not that on the evidence presently available the applicant will succeed on that cause of action. ... (Summary dismissal) should only be adopted when it is clear, beyond any doubt, that the applicant has not, and cannot, articulate in writing a reasonable cause of action. As I have already said, the philosophy of the Federal Magistrates Court is to provide inexpensive justice and a streamlined dispute resolution process. Litigants will often be self-represented and the documents they rely on as founding their claim will no doubt often be imprecisely articulated. In those circumstances, there is even more reason for the Federal Magistrates Court to be cautious before summarily dismissing an applicant's claim."
Case: re Morton; ex parte Mitchell Products Pty Ltd (1996) 21 ACSR 497
Outcome: cited
The appellant's grounds of appeal from the decision of Jarrett FM are more akin to submissions than grounds of appeal. I note the disadvantage of a self-represented litigant in relation to court proceedings (cf Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 536, re Morton; ex parte Mitchell Products Pty Ltd (1996) 21 ACSR 497 at 514). To the extent that I can correlate the appellant's grounds of appeal and submissions at the hearing with his Honour's reasons for judgment, the following is apparent.
Case: Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Outcome: cited
The appellant's grounds of appeal from the decision of Jarrett FM are more akin to submissions than grounds of appeal. I note the disadvantage of a self-represented litigant in relation to court proceedings (cf Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 536, re Morton; ex parte Mitchell Products Pty Ltd (1996) 21 ACSR 497 at 514). To the extent that I can correlate the appellant's grounds of appeal and submissions at the hearing with his Honour's reasons for judgment, the following is apparent.
Case: Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26 ; (1949) 78 CLR 353
Outcome: cited
The essence of the Commissioner's appeal is that the exercise of discretion by the Tribunal miscarried by reason of one or more errors of law: House v R [1936] HCA 40 ; (1936) 55 CLR 499 at 505, Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26 ; (1949) 78 CLR 353 at 360. With the exception of Question of Law (c), the common factor in the questions of law posed to the Court, and the grounds of appeal of the Commissioner, is that the Tribunal either took into account irrelevant considerations in exercising its discretion, or failed to take into account relevant considerations. Proceedings before the Tribunal miscarry due to error of law where the Tribunal fails to determine a matter before it by reference to relevant considerations: Sullivan v Department of Transport (1978) 20 ALR 323 (especially per Fisher J at 350).
Case: Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232
Outcome: cited
Appeals to the Federal Court from decisions of the Tribunal are confined to questions of law: s 44(1) Administrative Appeals Tribunal Act 1975 (Cth). These appeals are not appeals in the strict sense as they lie within the original jurisdiction of the court: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 581, Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 at [1] .
Case: Coco v Deputy Commissioner of Taxation (1993) 115 ALR 670
Outcome: cited
As Lockhart J observed in Coco v Deputy Commissioner of Taxation (1993) 115 ALR 670 at 676 however, it will usually be easier to identify matters irrelevant to the power than it will be to establish that the decision-maker has failed to take into account a relevant matter. 30 In considering the nature of the discretion conferred by s 298-20 and relevant considerations it is useful to have regard to: &#8226; the legislative context; &#8226; a number of Explanatory Memoranda where the remission discretion was discussed; and &#8226; relevant authorities where the remission discretion in s 298-20 has been considered. 31 The uniform administrative penalty regime introduced by the A New Tax System (Tax Administration) Act (No 2) 2000 (Cth) was enacted to apply to all taxation laws for which the Commissioner had administration. The object of Div 284 Sch 1 to the Act , which imposes administrative penalties for, inter alia , making a statement that is false or misleading, is stated in s 284- 10 as being: ...to provide a uniform administrative penalty regime for all taxation laws to enable administrative penalties to apply to entities that fail to meet their obligations under those laws in relation to: (a) making false or misleading statements; and (b) taking a position that is not reasonably arguable; and (c) entering into schemes; and (d) refusing to provide documents to the Commissioner.
Case: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Outcome: cited
Appeals to the Federal Court from decisions of the Tribunal are confined to questions of law: s 44(1) Administrative Appeals Tribunal Act 1975 (Cth). These appeals are not appeals in the strict sense as they lie within the original jurisdiction of the court: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 581, Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 at [1] .
Case: House v R [1936] HCA 40 ; (1936) 55 CLR 499
Outcome: cited
The essence of the Commissioner's appeal is that the exercise of discretion by the Tribunal miscarried by reason of one or more errors of law: House v R [1936] HCA 40 ; (1936) 55 CLR 499 at 505, Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26 ; (1949) 78 CLR 353 at 360. With the exception of Question of Law (c), the common factor in the questions of law posed to the Court, and the grounds of appeal of the Commissioner, is that the Tribunal either took into account irrelevant considerations in exercising its discretion, or failed to take into account relevant considerations. Proceedings before the Tribunal miscarry due to error of law where the Tribunal fails to determine a matter before it by reference to relevant considerations: Sullivan v Department of Transport (1978) 20 ALR 323 (especially per Fisher J at 350).
Case: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24
Outcome: cited
Although s 298-20, which authorises the Commissioner to remit all or part of the penalty to the taxpayer, requires the Commissioner to notify the taxpayer of reasons for a decision to either not remit a penalty or remit only part of the penalty, the section does not specify the considerations the Commissioner must take into account in so doing. In these circumstances it is useful to note observations of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 39-40 where his Honour said: "What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act . In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard... By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject matter, scope and purpose of the Act ." (emphasis added)
Case: Sullivan v Department of Transport (1978) 20 ALR 323
Outcome: cited
The essence of the Commissioner's appeal is that the exercise of discretion by the Tribunal miscarried by reason of one or more errors of law: House v R [1936] HCA 40 ; (1936) 55 CLR 499 at 505, Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26 ; (1949) 78 CLR 353 at 360. With the exception of Question of Law (c), the common factor in the questions of law posed to the Court, and the grounds of appeal of the Commissioner, is that the Tribunal either took into account irrelevant considerations in exercising its discretion, or failed to take into account relevant considerations. Proceedings before the Tribunal miscarry due to error of law where the Tribunal fails to determine a matter before it by reference to relevant considerations: Sullivan v Department of Transport (1978) 20 ALR 323 (especially per Fisher J at 350).