mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Hallstroms Pty Ltd v Federal Commissioner of Taxation [1946] HCA 34 ; (1946) 72 CLR 634
Outcome: cited
Spriggs submitted that the management fee was, as the invoice stated, for " management and promotional services by CSM for season 2004 " and that those services were not identified. I reject that contention. A label is never determinative: Commissioner of Taxation v Broken Hill Pty Co Ltd (2000) ATC 4659 at 4668; Colonial Mutual Life Assurance Society Ltd v Federal Commissioner of Taxation [1953] HCA 68 ; (1953) 89 CLR 428 ; Hallstroms Pty Ltd v Commissioner of Taxation [1946] HCA 34 ; (1946) 72 CLR 634 and Sun Newspapers Ltd &amp; Associated Newspapers Ltd v Commissioner of Taxation [1938] HCA 72 ; (1938) 61 CLR 337. The fee paid by Spriggs to CSM was payment for Connors of CSM negotiating a playing contract with an AFL club. The playing contract facilitated the generation of income of both Football Payments and Additional Services Payments. CSM negotiated each of Spriggs' AFL playing contracts. That is not surprising. Mr Shinners from AFLPA said that it is rare for a player to negotiate his own playing contract and he estimates 90% of AFL players currently have an accredited agent. Consistent with the terms of the Representation Agreement, Connors from CSM also negotiated the activities that generated or produced all of Spriggs' income from "Additional Services". 66 An examination of the character of the advantage sought is assisted by asking two questions: (1) what was the management fee really paid for? and (2) is what it was really paid for, in truth and in substance, a capital asset?: Colonial Mutual at 454 and Sun Newspapers Ltd at 359-360. The advantage must be identified and characterised. The answer to those questions is not assisted by an analysis of the contractual right or rights secured under the contract, as distinct from the activity itself: see Federal Commissioner of Taxation v Raymor (NSW) Pty Ltd [1990] FCA 193 ; (1990) 24 FCR 90 at 99 (per Davies, Gummow and Hill JJ) citing Dixon J in Hallstroms at 648. As Dixon J said in Hallstroms , the answer: "...depends on what the expenditure is calculated to effect from a practical and business point of view, rather than upon the juristic classification of the legal rights, if any, secured, employed or exhausted in the process." See also Citylink at [148] (per Crennan J) (with whom Gleeson CJ, Gummow, Heydon and Callinan JJ agreed).
Case: John Fairfax &amp; Sons Pty Ltd v Commissioner of Taxation (Cth) [1959] HCA 4 ; (1959) 101 CLR 30
Outcome: cited
The first positive limb is directed at expenditure " incurred in gaining or producing your assessable income " (emphasis added). "In" means in the actual course of producing assessable income: Federal Commissioner of Taxation v Payne [2001] HCA 3 ; (2001) 202 CLR 93 at 99 (Gleeson CJ, Kirby and Hayne JJ); Amalgamated Zinc (De Bavay's) Ltd v Commissioner of Taxation (Cth) [1935] HCA 81 ; (1935) 54 CLR 295 at 303 (Latham CJ) and at 309 (Dixon J); W Nevill &amp; Co Ltd v Commissioner of Taxation (Cth) [1937] HCA 9 ; (1937) 56 CLR 290 at 305; and John Fairfax &amp; Sons Pty Ltd v Commissioner of Taxation (Cth) [1959] HCA 4 ; (1959) 101 CLR 30 at 40. 37 The limb is not confined to circumstances where the income is derived from carrying on a business: Fairfax at 40 and Federal Commissioner of Taxation v Snowden &amp; Willson Pty Ltd [1958] HCA 23 ; (1958) 99 CLR 431 at 435-6.
Case: John v Federal Commissioner of Taxation [1989] HCA 5 ; (1989) 166 CLR 417
Outcome: applied
Secondly, whether or not a person is in business is a question of fact: John v Federal Commissioner of Taxation [1989] HCA 5 ; (1989) 166 CLR 417 at 430. As the High Court went on to say in John : "... in some cases the determination of that fact may depend on questions of impression and degree. If trading has not commenced or if there is no discernible trading pattern, the question of intention or purpose may be relevant in the sense that if there is an absence of intention or purpose to engage in trade regularly, routinely or systematically then the person may well not be a trader." A business does not have to be successful to be a business: John at 430.
Case: Lunney v Commissioner of Taxation [1958] HCA 5 ; (1958) 100 CLR 478 
Outcome: cited
However, the expenditure must be incidental and relevant to the gaining or producing of assessable income: Steele v Deputy Commissioner of Taxation [1999] HCA 7 ; (1999) 197 CLR 459 at [22] ; Ronpibon Tin NL v Commissioner of Taxation (Cth) [1949] HCA 15 ; (1949) 78 CLR 47 at 56 (per Latham CJ, Rich, Dixon, McTiernan and Webb JJ) and Commissioner of Taxation (Cth) v Riverside Road Lodge Pty Ltd (in liq) [1990] FCA 205 ; (1990) 23 FCR 305 at 311-312. What is incidental and relevant is determined not by reference to the certainty or likelihood of the expenditure resulting in the generation of income. One must identify the essential character of the expenditure to determine whether it is in truth an outgoing incurred in gaining or producing assessable income: Fletcher v Federal Commissioner of Taxation [1991] HCA 42 ; (1991) 173 CLR 1 at 17 and Lunney v Commissioner of Taxation [1958] HCA 5 ; (1958) 100 CLR 478 at 499.
Case: Maryborough Newspapers Co Ltd v Commissioner of Taxation [1929] HCA 16 ; (1929) 43 CLR 450 
Outcome: cited
Whether an outgoing incurred by a taxpayer satisfies one or more of the positive limbs for deductibility depends upon the facts of each case: Maryborough Newspapers Co Ltd v Commissioner of Taxation [1929] HCA 16 ; (1929) 43 CLR 450 and Total Holdings at 223.
Case: Ronpibon Tin NL v Commissioner of Taxation (Cth) [1949] HCA 15 ; (1949) 78 CLR 47
Outcome: cited
However, the expenditure must be incidental and relevant to the gaining or producing of assessable income: Steele v Deputy Commissioner of Taxation [1999] HCA 7 ; (1999) 197 CLR 459 at [22] ; Ronpibon Tin NL v Commissioner of Taxation (Cth) [1949] HCA 15 ; (1949) 78 CLR 47 at 56 (per Latham CJ, Rich, Dixon, McTiernan and Webb JJ) and Commissioner of Taxation (Cth) v Riverside Road Lodge Pty Ltd (in liq) [1990] FCA 205 ; (1990) 23 FCR 305 at 311-312. What is incidental and relevant is determined not by reference to the certainty or likelihood of the expenditure resulting in the generation of income. One must identify the essential character of the expenditure to determine whether it is in truth an outgoing incurred in gaining or producing assessable income: Fletcher v Federal Commissioner of Taxation [1991] HCA 42 ; (1991) 173 CLR 1 at 17 and Lunney v Commissioner of Taxation [1958] HCA 5 ; (1958) 100 CLR 478 at 499. 39 The phrase "assessable income " refers not to the assessable income of the year in which the expenditure was incurred but to assessable income generally: Steele at [22]; Fletcher at 16 - 17; Ronpibon at 56 (per Latham CJ, Rich, Dixon, McTiernan and Webb JJ); Riverside Road Lodge at 311; Commissioner of Taxation (Cth) v Total Holdings (Aust) Pty Ltd [1979] FCA 30 ; (1979) 43 FLR 217 at 222 and AGC (Advances) Ltd v Commissioner of Taxation (Cth) [1975] HCA 7 ; (1975) 132 CLR 175 at 189 and 196-197. 41 The first and second positive limbs overlap. They are not mutually exclusive. As the High Court said in Ronpibon (at 56), " in actual working [the second limb] can add but little to the operation of " the first limb. Three points should be made about the second limb: it operates and only operates to allow deductions of business expenses; the business must be carried on for the purpose of gaining or producing assessable income and, as with the first limb, "assessable income" refers to assessable income generally and not the assessable income of a particular income year.
Case: W Nevill &amp; Co Ltd v Commissioner of Taxation (Cth) [1937] HCA 9 ; (1937) 56 CLR 290
Outcome: cited
The first positive limb is directed at expenditure " incurred in gaining or producing your assessable income " (emphasis added). "In" means in the actual course of producing assessable income: Federal Commissioner of Taxation v Payne [2001] HCA 3 ; (2001) 202 CLR 93 at 99 (Gleeson CJ, Kirby and Hayne JJ); Amalgamated Zinc (De Bavay's) Ltd v Commissioner of Taxation (Cth) [1935] HCA 81 ; (1935) 54 CLR 295 at 303 (Latham CJ) and at 309 (Dixon J); W Nevill &amp; Co Ltd v Commissioner of Taxation (Cth) [1937] HCA 9 ; (1937) 56 CLR 290 at 305; and John Fairfax &amp; Sons Pty Ltd v Commissioner of Taxation (Cth) [1959] HCA 4 ; (1959) 101 CLR 30 at 40.
Case: Sutherland Publishing Company v Caxton Publishing Company Limited [1936] All ER 177
Outcome: referred to
Subject to s 116(1C) , the Copyright Act contemplates that the Court may grant damages in respect of copyright infringement and in respect of conversion. In Sutherland Publishing Company Limited v Caxton Publishing Company Limited [1936] All ER 177 , the English Court of Appeal decided that the remedies given by ss 6 (for breach of copyright) and 7 (for conversion) of the English Copyright Act, 1911 were cumulative, not alternative remedies. Lord Wright, MR, explained (at 180-81) that: Both are claims for a wrong, each wrong being different from the other. The former is for a wrong done to an incorporeal right, copyright, the latter is for conversion of particular chattels, the infringing copies. The measure of damages is different. In the latter case the measure is the value of the copies, which by force of the statute are deemed to be the property of the plaintiff, from the mere fact of being brought into existence; whereas in the other case, the measure of damage is the depreciation caused by the infringement to the value of the copyright, as a chose in action. It was strenuously contended that where the infringement consisted in the multiplication and sale of copies of a work, the damages under the two sections would overlap and the injustice of giving double compensation would be committed. It may be true that in some cases there may be an overlapping of the damages under the two sections, but, as I have already explained, there are two separate and diverse causes of action, each of which must receive appropriate consideration when it comes to the question of damages. ... It must be left to the good sense of the tribunal which assesses the damages to avoid giving excessive damages. Subsection 116(1C) addresses the considerations raised in this second paragraph, requiring the Court to form an opinion as to the sufficiency of the relief to be granted under s 115 of the Copyright Act. (The formulation of the measure of damages for copyright infringement in the first paragraph of the above passage may be misleading in some circumstances: see, e.g., Autodesk Australia Pty Ltd v Cheung (1990) 94 ALR 472 (" Autodesk ") at 475 per Wilcox J.)
Case: Autodesk Australia Pty Ltd v Cheung (1990) 94 ALR 472
Outcome: referred to
Subject to s 116(1C) , the Copyright Act contemplates that the Court may grant damages in respect of copyright infringement and in respect of conversion. In Sutherland Publishing Company Limited v Caxton Publishing Company Limited [1936] All ER 177 , the English Court of Appeal decided that the remedies given by ss 6 (for breach of copyright) and 7 (for conversion) of the English Copyright Act, 1911 were cumulative, not alternative remedies. Lord Wright, MR, explained (at 180-81) that: Both are claims for a wrong, each wrong being different from the other. The former is for a wrong done to an incorporeal right, copyright, the latter is for conversion of particular chattels, the infringing copies. The measure of damages is different. In the latter case the measure is the value of the copies, which by force of the statute are deemed to be the property of the plaintiff, from the mere fact of being brought into existence; whereas in the other case, the measure of damage is the depreciation caused by the infringement to the value of the copyright, as a chose in action. It was strenuously contended that where the infringement consisted in the multiplication and sale of copies of a work, the damages under the two sections would overlap and the injustice of giving double compensation would be committed. It may be true that in some cases there may be an overlapping of the damages under the two sections, but, as I have already explained, there are two separate and diverse causes of action, each of which must receive appropriate consideration when it comes to the question of damages. ... It must be left to the good sense of the tribunal which assesses the damages to avoid giving excessive damages. Subsection 116(1C) addresses the considerations raised in this second paragraph, requiring the Court to form an opinion as to the sufficiency of the relief to be granted under s 115 of the Copyright Act. (The formulation of the measure of damages for copyright infringement in the first paragraph of the above passage may be misleading in some circumstances: see, e.g., Autodesk Australia Pty Ltd v Cheung (1990) 94 ALR 472 (" Autodesk ") at 475 per Wilcox J.) 21 The infringement was flagrant in the sense that it was a "deliberate and calculated" infringement of the applicants' copyright: see Ravenscroft v Herbert and New English Library [1980] RPC 193 at 208 per Brightman J, cited with approval by Wilcox J in Autodesk at 478. In this regard, I refer to the findings at [65], [66], [67] and [77] in Boyapati (No 1) . The respondents acted in disregard of copyright notices: see Boyapati (No 1) at [70] and [77]. There was, furthermore, a continuing disregard of the applicants' rights even after the applicants had given notice of the infringement: see Boyapati (No 1) at [69]. The need to deter similar infringements of copyright
Case: TS &amp; B Retail Systems Pty Ltd v 3Fold Resources Pty Ltd (No 3) (2007) 158 FCR 444
Outcome: cited
I accept that, as the applicants maintain, the provision to a student of an infringing copy of an Icarus College practice exam was an actionable conversion, the measure of damages being the market value of the exam. So calculated, conversion damages may be awarded under s 116. The applicants accept that, on this analysis, damages under s 115(2) would be confined to indirect losses, such as the diminution of goodwill or any loss associated with the failure to enhance goodwill or reputation: see TS &amp; B Retail Systems Pty Ltd v 3Fold Resources Pty Ltd (No 3) (2007) 158 FCR 444 at 496 per Finkelstein J and Prior v Sheldon (2000) 48 IPR 301 at 321-22 per Wilcox J. This would apparently prevent any overlap of the kind that s 116(1C) is intended to avoid.
Case: Prior v Sheldon (2000) 48 IPR 301
Outcome: cited
I accept that, as the applicants maintain, the provision to a student of an infringing copy of an Icarus College practice exam was an actionable conversion, the measure of damages being the market value of the exam. So calculated, conversion damages may be awarded under s 116. The applicants accept that, on this analysis, damages under s 115(2) would be confined to indirect losses, such as the diminution of goodwill or any loss associated with the failure to enhance goodwill or reputation: see TS &amp; B Retail Systems Pty Ltd v 3Fold Resources Pty Ltd (No 3) (2007) 158 FCR 444 at 496 per Finkelstein J and Prior v Sheldon (2000) 48 IPR 301 at 321-22 per Wilcox J. This would apparently prevent any overlap of the kind that s 116(1C) is intended to avoid.
Case: Sony Entertainment (Australia) Ltd v Smith [2005] FCA 228 ; (2005) 64 IPR 18
Outcome: cited
Ultimately, however, the court cannot form an opinion as to the sufficiency of relief under s 115 of the Copyright Act until relief under s 115 is granted or the court has reached a definite view about the relief it proposes to grant under this provision: compare Sony Entertainment (Australia) Ltd v Smith [2005] FCA 228 ; (2005) 64 IPR 18 at [119] - [121] per Jacobson J. Furthermore, I accept that, as the applicants submit, the assessment of conversion damages should begin with the respondents' discovery of data that would permit the reliable assessment of the number of times that the infringing exams were downloaded by students for their use. If this data were unavailable, then there would be a need to consider other bases for calculating conversion damages. 16 In the circumstances, it suffices to say, at this stage, that, subject to the opinion of the Court under s 116(1C), the applicants are entitled to an assessment of conversion damages under s 116(A), as well as infringement damages under s 115. 17 Subsection 116(1D) provides that, in deciding whether to grant relief in an action for conversion and in assessing the amount of damages payable, the court may have regard to the following: (a) the expenses incurred by the defendant, being a person who marketed or otherwise dealt with the infringing copy, in manufacturing or acquiring the infringing copy; (b) whether the expenses were incurred before or after the infringing copy was sold or otherwise disposed of by the defendant; (c) any other matter that the court considers relevant.
Case: Ravenscroft v Herbert and New English Library [1980] RPC 193
Outcome: referred to
The infringement was flagrant in the sense that it was a "deliberate and calculated" infringement of the applicants' copyright: see Ravenscroft v Herbert and New English Library [1980] RPC 193 at 208 per Brightman J, cited with approval by Wilcox J in Autodesk at 478. In this regard, I refer to the findings at [65], [66], [67] and [77] in Boyapati (No 1) . The respondents acted in disregard of copyright notices: see Boyapati (No 1) at [70] and [77]. There was, furthermore, a continuing disregard of the applicants' rights even after the applicants had given notice of the infringement: see Boyapati (No 1) at [69]. The need to deter similar infringements of copyright
Case: Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225
Outcome: referred to
The usual rule is that costs are payable on a party and party basis, unless the circumstances of the case warrant a departure from the normal course: see Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 (" Colgate-Palmolive ") at 233 per Sheppard J and O 62 of the Rules. In Colgate-Palmolive , Sheppard J referred to the circumstances in which indemnity costs might be awarded, mentioning, amongst other things, "the fact that the proceedings were commenced or continued ... in wilful disregard of known facts or clearly established law" and "the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions", though noting that "[t]he question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis": see Colgate-Palmolive at 233-34. The Full Court reconsidered the appropriateness of an indemnity costs award in Re Wilcox: Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151 (" Re Wilcox ") at 152-53 per Black CJ and 156-58 per Cooper and Merkel JJ. In Re Wilcox , at 156-57, Cooper and Merkel JJ reiterated Sheppard J's approach, saying: In order to exercise the discretion [regarding costs] judicially the following principles have been accepted by the Court as applicable: (a) the Court ought not to depart from the rule that costs be ordered on a party and party basis unless the circumstances of the case warrant the Court in departing from the usual course; (b) the circumstances which may warrant departure from the usual course arise as and when the justice of the case so requires or where there may be some special or unusual feature in the case to justify the court in departing from the usual course; (c) whilst the circumstances in cases in which indemnity costs have been ordered offer a guide, the question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for costs other than on a party and party basis. See also Abbott v Random House Australia Pty Ltd [1999] FCA 1540 at [5] per Beaumont, Miles and Drummond JJ, quoting the above passage with approval. Even more recently, the Full Court in Hamod v New South Wales [2002] FCA 424 ; (2002) 188 ALR 659 at 665 (per Gray J, with whom Carr and Goldberg JJ agreed) explained the basal principle for an award of indemnity costs in the following terms: Indemnity costs are not designed to punish a party for persisting with a case that turns out to fail. They are not awarded as a means of deterring litigants from putting forward arguments that might be attended by uncertainty. Rather, they serve the purpose of compensating a party fully for costs incurred, as a normal costs order could not be expected to do, when the Court takes the view that it was unreasonable for the party against whom the order is made to have subjected the innocent party to the expenditure of costs.
Case: Re Wilcox: Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151
Outcome: referred to
The usual rule is that costs are payable on a party and party basis, unless the circumstances of the case warrant a departure from the normal course: see Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 (" Colgate-Palmolive ") at 233 per Sheppard J and O 62 of the Rules. In Colgate-Palmolive , Sheppard J referred to the circumstances in which indemnity costs might be awarded, mentioning, amongst other things, "the fact that the proceedings were commenced or continued ... in wilful disregard of known facts or clearly established law" and "the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions", though noting that "[t]he question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis": see Colgate-Palmolive at 233-34. The Full Court reconsidered the appropriateness of an indemnity costs award in Re Wilcox: Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151 (" Re Wilcox ") at 152-53 per Black CJ and 156-58 per Cooper and Merkel JJ. In Re Wilcox , at 156-57, Cooper and Merkel JJ reiterated Sheppard J's approach, saying: In order to exercise the discretion [regarding costs] judicially the following principles have been accepted by the Court as applicable: (a) the Court ought not to depart from the rule that costs be ordered on a party and party basis unless the circumstances of the case warrant the Court in departing from the usual course; (b) the circumstances which may warrant departure from the usual course arise as and when the justice of the case so requires or where there may be some special or unusual feature in the case to justify the court in departing from the usual course; (c) whilst the circumstances in cases in which indemnity costs have been ordered offer a guide, the question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for costs other than on a party and party basis. See also Abbott v Random House Australia Pty Ltd [1999] FCA 1540 at [5] per Beaumont, Miles and Drummond JJ, quoting the above passage with approval. Even more recently, the Full Court in Hamod v New South Wales [2002] FCA 424 ; (2002) 188 ALR 659 at 665 (per Gray J, with whom Carr and Goldberg JJ agreed) explained the basal principle for an award of indemnity costs in the following terms: Indemnity costs are not designed to punish a party for persisting with a case that turns out to fail. They are not awarded as a means of deterring litigants from putting forward arguments that might be attended by uncertainty. Rather, they serve the purpose of compensating a party fully for costs incurred, as a normal costs order could not be expected to do, when the Court takes the view that it was unreasonable for the party against whom the order is made to have subjected the innocent party to the expenditure of costs.