mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Berkeley v Berkeley [1946] A.C. 555
Outcome: referred to
a later case, Berkeley v Berkeley [1946] A.C. 555 ('Berkeley v Berkeley'), the House of Lords overruled the decision of the Court of Appeal in the proceedings to which Mr Burton-Butler had been a party. In In re Waring the trustees of the will of the late Mr Waring proceeded to ask whether the tax-free annuities for which the will provided ought to be paid in full or be subject to the deduction provided by s 20 of the Finance (No. 2) Act 1945 (UK), which had amended s 25 of the 1941 Act. Jenkins J held that he was constrained to hold so far as Mr Burton-Butler was concerned that the quantum of his annuity must be treated as irretrievably fixed by the decision of the Court of Appeal. However, his Honour found that Mrs Burton-Butler, who had not been a party to the earlier proceeding, was in a different position. His Honour held that the decision of the Court of Appeal could not affect her rights in any way and she was entitled to claim retrospectively the full amount of her annuity calculated in accordance with the law as decided by the House of Lords in Berkeley v Berkeley .
Case: Ramsay v Pigram [1968] HCA 34 ; (1968) 118 CLR 271
Outcome: considered
Ramsay v Pigram [1968] HCA 34 ; (1968) 118 CLR 271 the High Court held that the nominal defendant, representing the government of New South Wales when sued by Mr Pigram for damages for negligence alleged against a New South Wales police officer whose vehicle collided with that of Mr Pigram who suffered personal injury, could not rely upon estoppels said to arise from findings in proceedings brought by the police officer for negligence against Mr Pigram in which the issues had been negligence on the part of Mr Pigram and contributory negligence on the part of the police officer. The jury in that case had found a general verdict for the police officer. The High Court held that there was no privative interest between the nominal defendant and the police officer which entitled the nominal defendant to rely upon the findings in the police officer's action. In my opinion there was no privative interest between the first and fourth respondents in this case.
Case: Port of Melbourne Authority v Anshun Proprietary Limited [1981] HCA 45 ; (1981) 147 CLR 589
Outcome: cited
rule as to res judicata comes into operation whenever a party attempts in a second proceeding to litigate a cause of action which has merged into judgment in a prior proceeding (per Gibbs CJ, Mason and Aickin JJ in Port of Melbourne Authority v Anshun Proprietary Limited [1981] HCA 45 ; (1981) 147 CLR 589 ('Anshun') at 597). In Anshun Brennan J, as his Honour then was, said at 610-612: 'Imprecision in the meaning of cause of action tends to uncertainty in defining the ambit of the rule that a judgment bars subsequent proceedings between the same parties on the same cause of action. The foundation of the rule, whether it be termed res judicata, or cause of action estoppel or judgment recovered, is the merging of the cause of action in the judgment. In reference to res judicata, Dixon J said in Blair v Curran : "the very right or cause of action claimed or put in suit has ... passed into judgment, so that it is merged and has no longer an independent existence ..." If cause of action is taken to mean a right, the rule is stated in terms of the passing of the right into judgment, and the rule precludes a party bound by the judgment from maintaining against another party bound by it any subsequent proceeding to recover a judgment giving a remedy to enforce or to compensate for an infringement of that right. The rule does not preclude litigation seeking a remedy to which a party is entitled in virtue of a different right from that which was first put in suit provided that the facts which support the right sued upon in the second action are not the same facts as those supporting the right which passed into the first judgment ... If cause of action is taken to mean the facts which support a right to judgment, the rule of res judicata bars an action for relief founded upon the same facts as those upon which an earlier judgment was recovered, though the right sued upon in the second action is different from the right which passed into or was negated by the earlier judgment. .... When the same facts support rights to different remedies against the same defendant, the plaintiff cannot recover a judgment giving a remedy in respect of more than one right ... He may pursue his remedies concurrently in the same action, but he is put to his election before judgment as to which remedy he shall have. And when judgment is entered, all of the rights which he might have claimed in that litigation are merged in the judgment. ... The party entitled to relief cannot improve his position by bringing separate actions. Though he may elect between inconsistent remedies pursued in the one action, or between the actions to be pursued in order to recover a judgment giving the remedy he chooses, the merger in the judgment first recovered of a right to another remedy takes effect by operation of law. When those rights (or causes of action) are extinguished, no further litigation may be pursued to recover a second judgment upon them.' (footnotes omitted)
Case: Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 722
Outcome: cited
res judicata to operate the later proceeding must raise the same cause of action, except where the prior judgment was in rem, and the parties to the two proceedings must be the same or privies of the same parties (per Lindgren J in Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 722 at [43]). The judgment of Lindgren J dealt with three separate matters. His Honour's orders in two of those matters were the subject of an appeal to a Full Court. One such appeal was dismissed and the other was allowed. However, there was no suggestion that his Honour had erred in stating the relevant principles in relation to res judicata as noted above. The Full Court, comprising Emmett, Conti and Selway JJ, (see Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 146 FCR 10) said at [36]: '36 The doctrines of res judicata and issue estoppel are founded on the broad rules of public policy expressed in the maxims nemo debet bis vexari pro una et eadem causa ('a person ought not to be vexed twice for one and the same cause') and interest reipublicae ut sit finis litium ('it is in the interests of the State that there be an end to litigation'). It would be an abuse of process to allow parties to litigate repeatedly matters that have been finally determined by the Court. Also, quite apart from any psychological detriment that might flow from an individual having to undertake litigation of the same issue a second time, the State has an interest in ensuring that, once an issue has been determined according to law and all rights of appeal have been exhausted, that should be an end of the matter. The resources of the community ought not to be expended in the litigation, more than once, of the same issue.'
Case: Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 146 FCR 10
Outcome: cited
res judicata to operate the later proceeding must raise the same cause of action, except where the prior judgment was in rem, and the parties to the two proceedings must be the same or privies of the same parties (per Lindgren J in Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 722 at [43]). The judgment of Lindgren J dealt with three separate matters. His Honour's orders in two of those matters were the subject of an appeal to a Full Court. One such appeal was dismissed and the other was allowed. However, there was no suggestion that his Honour had erred in stating the relevant principles in relation to res judicata as noted above. The Full Court, comprising Emmett, Conti and Selway JJ, (see Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 146 FCR 10) said at [36]: '36 The doctrines of res judicata and issue estoppel are founded on the broad rules of public policy expressed in the maxims nemo debet bis vexari pro una et eadem causa ('a person ought not to be vexed twice for one and the same cause') and interest reipublicae ut sit finis litium ('it is in the interests of the State that there be an end to litigation'). It would be an abuse of process to allow parties to litigate repeatedly matters that have been finally determined by the Court. Also, quite apart from any psychological detriment that might flow from an individual having to undertake litigation of the same issue a second time, the State has an interest in ensuring that, once an issue has been determined according to law and all rights of appeal have been exhausted, that should be an end of the matter. The resources of the community ought not to be expended in the litigation, more than once, of the same issue.'
Case: Deputy Commissioner of Taxation (Vic) v Held (1988) 19 ATR 852
Outcome: considered
Deputy Commissioner of Taxation (Vic) v Held (1988) 19 ATR 852 ('Held') at 855 A.C. King J said: '... I think that the Deputy Commissioner is not entitled to judgment on alternative assessments at the one time but that he is entitled to proceed to judgment on his assessment of the defendant without releasing the other person assessed; however he cannot proceed to judgment on the other assessment unless he repays any tax recovered under the judgment in this case. ...' The fourth respondent relies heavily upon this passage from his Honour's reasons for judgment. The matter before A.C. King J in the Victorian Supreme Court was an appeal from an order of a master giving leave to sign final judgment in an action asking for judgment for a debt due to the Commonwealth of Australia and payable to and recoverable by the Deputy Commissioner under the 1936 Act. His Honour dismissed the appeal and refused to order a stay of its execution. In Held it had been contended by senior counsel for the defendant that the Deputy Commissioner had issued inconsistent assessments in respect of the same tax in respect of the 1981 tax year and that he was not entitled to proceed to judgment on one assessment without withdrawing the other. The submission was entirely inconsistent with more recent High Court authority. An 'adjusted assessment' had been issued to Cornix Anna Nominees Pty Limited as trustee for the Held No. 2 Trust. A.C. King J rejected the taxpayer's submission, finding that the Deputy Commissioner could proceed to judgment on his assessment of the defendant, without releasing Cornix Anna Nominees Pty Limited as trustee of the Held No. 2 Trust. His Honour's observation that the Deputy Commissioner was 'not entitled to judgment on alternative assessments at the one time' was clearly obiter dicta as judgment had not been sought contemporaneously against both the defendant and also Cornix Anna Nominees Pty Limited as trustee for the Held No. 2 Trust. Had it been necessary for me to do so, I would, respectfully have held that A.C. King J's observation that the Deputy Commissioner was not entitled to judgment on alternative assessments at the one time was plainly wrong. For his Honour to reach such a conclusion it would have been necessary for him to have considered in detail the principles that have been referred to above in relation to res judicata, which he did not do. In an article written by G T Pagone and published in the June 1990 issue of the Australian Tax Review the author, now Justice Pagone of the Victorian Supreme Court, said at pp103-4: 'Whether the Commissioner can rely upon the evidentiary conclusiveness afforded by s.177(1) when there are two inconsistent assessments has been raised in several decisions with contrary results. ... Whether s 177(1) confers evidentiary conclusiveness ... must still be regarded as unresolved. ... The solution may be in preventing double recovery as an abuse of power.'
Case: Held v Deputy Commissioner of Taxation (Vic) (1988) 19 ATR 1213
Outcome: referred to
was an appeal in respect of the refusal by his Honour of a stay, which was dismissed (see Held v Deputy Commissioner of Taxation (Vic) (1988) 19 ATR 1213).
Case: Deputy Federal Commissioner of Taxation v Mackey (1982) 82 ATC 4571
Outcome: cited
Deputy Federal Commissioner of Taxation v Mackey (1982) 82 ATC 4571 the Court of Appeal in New South Wales addressed a stay of proceedings that had been ordered. The appeal was allowed and the stay relevantly set aside. It had not been argued by the Deputy Commissioner that s 201 of the 1936 Act deprived the Court of an appropriate discretion to grant a stay of proceedings or of execution. At 4574 Moffitt P said: 'The policy of sec.201 is that when an assessment has been made, the Deputy Commissioner has a right to have the tax paid, despite the pendency of an appeal. While hardship to the taxpayer and the merits of the appeal are relevant matters, other considerations are involved, including the Commissioner's right to have the tax assessed paid.' At 4575 Hutley JA said: 'The Commissioner starts off with rights under sec.201 and the taxpayer is seeking on special bases to have a special discretion exercised in his favour. It is not possible to work out in advance all possible bases for the exercise of such a discretion and it would not be proper even to attempt to do so. It is an open-ended discretion. But there are only two cases where it is clear the court should exercise that discretion. First the comparatively rare case where the Commissioner abuses his position, for example by assessing and endeavouring to collect tax in defiance of a decision of the High Court or other Superior court precisely in point. Second, in cases of extreme personal hardship to a taxpayer called upon to pay. The obligation to pay which has been cast upon him by law is not a hardship of itself and the mitigation of the effect of inflation and the burden of interest is a matter for the legislature, not for the Court.' Also at 4575 Glass JA said: 'I consider that the effect of the legislative direction in sec.201 when modified by the Court's recognised power to stay proceedings in the exercise of its discretion have a combined effect of a different kind. If the metaphor is to be retained, the needle stands in the Commissioner's favour close to one hundred and it requires a weighty case to be presented by the taxpayer in order to depress it below the halfway mark. ...'
Case: Trustee of the Balmain Trust v FC of T (1998) 99 ATC 5334
Outcome: cited
Trustee of the Balmain Trust v FC of T (1998) 99 ATC 5334 assessments had been issued by the Commissioner to Banalij Pty Ltd as trustee of 'the Balmain Trust' and also to a Mr Colin Ward who had until 1988 served as trustee of the trust. The Commissioner formed the view that assessments should issue for rental income from the property identified as 62 Darling Street, Balmain which had been purchased in the name of Mr Ward on 17 December 1982 and for additional tax for non-disclosure of income. The transfer to Mr Ward was dated 22 February 1983 but was not lodged for registration until early 1988. As Davies J said at 5336: 'Being undecided as to whether or not a trust existed during the relevant years, the Commissioner issued two sets of assessments. One set of assessments assessed Mr Ward to tax on the rental income on the footing that it was derived by him during the years of income. The other assessments assessed the Trustee for the Balmain Trust under s 99A of the [1936 Act] .' At 5341 Davies J observed that the assessments against the trustee of the Balmain Trust and against Mr Ward had been issued as alternative assessments. At 5342 Davies J said: '... Alternative assessments may be issued where the Commissioner is uncertain as to which taxpayer is liable. The obligation then is on each taxpayer who has been assessed to satisfy the onus of proof cast upon a taxpayer by s 14ZZK of the Administration Act [where in that case there had been an application for review of the Commissioner's decision by the Administrative Appeals Tribunal] to show that the assessment was excessive. It would be wrong, of course, for the Commissioner to recover two amounts of tax. The Commissioner should ensure that there is no double recovery of tax. As Brennan J said, that is an obligation which the courts would enforce, although I assume that they would never need to do so.' Plainly, alternative or concurrent assessments are permissible and judgments founded upon such assessments are also permissible. As Davies J observed one might expect the courts to intervene to ensure that alternative assessments and judgments based thereon would not lead to double recovery by the Commissioner. By s 5(1) of the Income Tax Act 1986 (Cth) income tax was imposed in accordance with the Income Tax Act 1986 and at the relevant rates declared by the Income Tax Rates Act 1986 (Cth) .
Case: McAndrew v Federal Commissioner of Taxation [1956] HCA 62 ; (1956) 98 CLR 263
Outcome: cited
McAndrew v Federal Commissioner of Taxation [1956] HCA 62 ; (1956) 98 CLR 263 ('McAndrew') at 280-282 Taylor J said of s 177(1): 'The purpose of that sub-section [s 177(1)] , is, subject to an important qualification, to make the production of a notice of assessment in judicial proceedings conclusive evidence of the due making of the assessment and that the amount and all the particulars of the assessment are correct. The qualification is that upon proceedings on appeal against the assessment, the production of the assessment does not constitute conclusive evidence that the amount and all the particulars of the assessment are correct. It will be seen that the sub-section contains two limbs and that the second limb applies only in proceedings which are not appeals of the character specified. In all other proceedings both limbs apply. But although doubts may exist as to what is comprised in each limb, the existence of these doubts in no way requires a modification of the view previously expressed. ... There seems no doubt that s.177 (1) was intended to make it impossible for a taxpayer, in proceedings other than appeal against it, to challenge an assessment on any ground and, accordingly, there is every reason for thinking that the second limb in s.177 (1) covers all grounds upon which an assessment may be challenged other than those covered by the first limb. ... In my view s.170 (1) (sic) should be understood as precluding a taxpayer in proceedings other than an appeal (or a reference [now a review] ) under the Act from challenging an assessment on any ground. ...' In F. J. Bloemen Proprietary Limited v The Commissioner of Taxation of the Commonwealth of Australia [1981] HCA 27 ; (1981) 147 CLR 360 at 375, Mason and Wilson JJ cited with approval the observations of Taylor J in McAndrew .
Case: F. J. Bloemen Proprietary Limited v The Commissioner of Taxation of the Commonwealth of Australia [1981] HCA 27 ; (1981) 147 CLR 360
Outcome: referred to
F. J. Bloemen Proprietary Limited v The Commissioner of Taxation of the Commonwealth of Australia [1981] HCA 27 ; (1981) 147 CLR 360 at 375, Mason and Wilson JJ cited with approval the observations of Taylor J in McAndrew .
Case: Webb v Commissioner of Taxation (No 2 ) [1993] FCA 612 ; (1993) 47 FCR 394
Outcome: referred to
Webb v Commissioner of Taxation (No 2 ) [1993] FCA 612 ; (1993) 47 FCR 394 at 400 Hill J said: '... the giving to the taxpayer of a notice which stipulates the taxable income and the tax payable referable to that taxable income in the year (a positive figure) will be a notice of assessment attracting the provisions of the objection and appeals procedure and s 177.' His Honour then continued at 400-401 by saying: 'My view is consistent with the decision of Hunt J in Deputy Commissioner of Taxation (Cth) v Clyne (1982) 60 FLR 45 and that of Enderby J in Commonwealth v Opiel (1986) 86 ATC 5 ,013. The former case is not greatly different from the present. In that case Mr Clyne, who had received a notice of assessment showing a credit for provisional tax, sought to argue that the giving of that credit constituted an admission by the Commissioner that payment had been made for that amount or that a claim was no longer made in respect of that amount, or alternatively that the provisions of s 177 rendered there conclusive evidence that the amount was no longer claimed by the Commissioner. This somewhat audacious argument was rejected by Hunt J who regarded the particulars of assessment referred to in s 177 of the Act as constituting merely the two ingredients taxable income and the tax assessed with respect to that taxable income. The other material on the notice, including the credit, were, his Honour thought, particulars of the notice but not particulars of the assessment. The decision of Hunt J was followed by Enderby J in Opiel in holding that details of a refund stated in the assessment to be due to a taxpayer did not attract the conclusive evidentiary protection of s 177.' See also Deputy Commissioner of Taxation of the Commonwealth of Australia v Richard Walter Pty Limited [1995] HCA 23 ; (1995) 183 CLR 168 ('Richard Walter').
Case: Syngenta Crop Protection Pty Ltd (ACN 002 933 717) v Commissioner of Taxation [2005] FCA 1646 ; (2005) 61 ATR 186
Outcome: referred to
CJ observed at 187 that the paramount purpose of the 1936 Act was to ascertain the liability of taxpayers to tax and that the Act, with that object in view, set up a legislative regime whereby the Commissioner assessed the taxpayer to tax, the taxpayer being liable to pay the amount stated in the notice of assessment, subject to a reference to the Administrative Appeals Tribunals or an appeal under Part IVC to the Federal Court. His Honour said at 187: 'In such an appeal, it is for the taxpayer to show that the assessment is excessive.' (See also per Gyles J in Syngenta Crop Protection Pty Ltd (ACN 002 933 717) v Commissioner of Taxation [2005] FCA 1646 ; (2005) 61 ATR 186 at [12] ).
Case: Commission of Taxation of the Commonwealth of Australia v Futuris Corporation Limited [2008] HCA 32 ; (2008) 237 CLR 146
Outcome: cited
Commission of Taxation of the Commonwealth of Australia v Futuris Corporation Limited [2008] HCA 32 ; (2008) 237 CLR 146 Gummow, Hayne, Heydon and Crennan JJ said with respect to the relationship between ss 175 and 177(1), at [64]-[65]: '64 The evident policy reflected in the terms of s 177(1) is the facilitation of proceedings for the recovery of tax which are instituted by the Commissioner under s 209 of the Act in a court of competent jurisdiction. Corresponding provision is made elsewhere in the Act for the recovery of other amounts. The action for recovery is facilitated by the "conclusive evidence" provision in s 177(1). That sub-section, as the Commissioner correctly submitted, is not a privative clause in the ordinary use of that term. It does not purport to oust the (necessarily federal) jurisdiction conferred upon any other court in matters arising under the Act. To the contrary, it recognises that there may be Pt IVC proceedings and in those proceedings the "conclusive evidence" provision does not apply. 65 In recovery proceedings s 177(1) operates to change what otherwise would be the operation of the relevant laws of evidence. But, given the presence of Pt IVC, s 177(1) does not operate to impose an incontestable tax or otherwise fall foul of the principles which were considered in Nicholas v The Queen and which respect usurpation of the federal judicial power by deeming to exist an ultimate fact.' (foonotes omitted)