mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Grant v Commissioner of Taxation [2000] FCA 1383 , 104 FCR 1
Outcome: cited
some guidance may be gleaned from other statutory provisions which authorise the issuing of a notice requiring the production of documents. The best known examples are perhaps s 155 of the Trade Practices Act 1974 (Cth) and s 264 of the Income Tax Assessment Act 1936 (Cth). Other examples of similar statutory provisions may also be given: eg Bankruptcy Act 1966 (Cth) s 77C ; Australian Securities and Investments Commission Act 2001 (Cth) ss 30 to 33 . When considering s 264 of the 1936 Act in Grant v Commissioner of Taxation [2000] FCA 1383 , 104 FCR 1 , Black CJ, Merkel and Finkelstein JJ relevantly observed: [12] There are competing factors to be taken into account when considering the proper construction of s 264. On the one hand, it is to be remembered that the section interferes with a person's freedom to elect not to provide information, whether it is to the revenue authorities or to a law enforcement agency. Not only is s 264 an interference with personal liberty, a refusal or failure to comply with s 264 is an offence, attracting a fine or even a term of imprisonment: see ss 8C , 8D and 8E of the Taxation Administration Act 1953 (Cth). On the other hand, the principal source of revenue for the Commonwealth is income tax. It is notorious that many and varied devices are employed to avoid the incidence of that tax. Sometimes, outright fraud is involved. For this reason the Parliament found it necessary to give the Commissioner power to make wide ranging enquiries to investigate whether tax is due. In these circumstances, the Court should proceed on the footing that the intention was to give the Commissioner an effective, but not an oppressive or unfair, power of investigation. There are like " competing factors " to be taken into account in the present statutory context. Lord Denning MR observed that "[i]n a wicked world, it not unknown for books and papers to be destroyed or lost ": Norwest Holst Ltd v Secretary of State for Trade [1978] Ch 201 at 224. That was in 1978. The world is now even more " wicked " &#8212; and even less safe.
Case: Industrial Equity Ltd v Deputy Commissioner of Taxation [1990] HCA 46 ; (1990) 170 CLR 649
Outcome: cited
264(1)(a) is not so confined and permits what has been described as a " fishing expedition ": Federal Commissioner of Taxation v Australia and New Zealand Banking Group Ltd [1977] FCA 23 ; (1979) 143 CLR 499 at 515 at 535 to 536 per Mason J. Section 264(1)(a) may only be confined by the need to ensure that that power is exercised for the broadly expressed purposes elsewhere set forth in the Income Tax Assessment Act 1936 (Cth): Industrial Equity Ltd v Deputy Commissioner of Taxation [1990] HCA 46 ; (1990) 170 CLR 649 at 659 to 660. A notice issued under s 264(1)(a) need not reveal on its face that the Commissioner is entitled to require the information specified in the notice; it is enough for the notice or the covering letter to record that the information is required for the purposes of the 1936 Act: McCormack v Commissioner of Taxation [2001] FCA 1700 at [46] , [2001] FCA 1700 ; 114 FCR 574 at 589 per Sackville J. But those purposes, no matter how broadly expressed, impose some constraint.
Case: The Integrated Financial Group Pty Ltd v Australian Securities and Investments Commission [2004] WASCA 213 , 187 FLR 7
Outcome: cited
is also of some relevance that in communications and correspondence as between the Applicants and the Commission there was no prior assertion that there was any uncertainty on the part of the Applicants as to the documents required to be produced. Specificity in language may have regard to the knowledge of the person upon whom a notice is served: cf The Integrated Financial Group Pty Ltd v Australian Securities and Investments Commission [2004] WASCA 213 , 187 FLR 7. The " clarity " of a notice served under s 264 of the 1936 Act, it has been said, " must be considered against the background of the knowledge and circumstances of the Respondent to the Notice and the contextual facts ": Hart v Commissioner of Taxation [2005] FCA 1748 at [91] , [2005] FCA 1748 ; 148 FCR 198 at 226 per Greenwood J. A document may be specified if the description of the document required to be produced is sufficiently certain to identify it to the person upon whom a notice is served &#8212; even if that description may mean little (if anything) to a person without such knowledge. The Applicants in the present proceedings, it is considered, are more intent on attempting to find uncertainty where &#8212; upon a reasonable and practical reading of the Schedules &#8212; none exists. The contention that the examiner when issuing the notices failed to consider the relevance of the documents identified in the Schedules to each of the notices, and presumably also failed to consider the volume of the documents described, focussed upon the record " in writing [of] the reasons for the issue of the notice " as required by s 29(1A).
Case: Kennedy v Baker [2004] FCA 562 , 135 FCR 520
Outcome: cited
Applicants accept that they bear the onus of proving the invalidity of the notices: cf Australian Securities Commission v Lucas (1992) 36 FCR 165 at 177 per Drummond J; X v Australian Crime Commission [2004] FCA 1475 at [22] , [2004] FCA 1475 ; 139 FCR 413 at 419 to 420 per Finn J; Kennedy v Baker [2004] FCA 562 at [85] to [86], [2004] FCA 562 ; 135 FCR 520 at 542 to 543 per Branson J.
Case: O'Reilly v the Commissioners of the State Bank of Victoria (1983) 153 CLR 1
Outcome: cited
constraints upon the power may also be readily implied. These implied constraints would include the requirement that the power be exercised in good faith and for the purpose for which it was conferred: cf O'Reilly v the Commissioners of the State Bank of Victoria (1983) 153 CLR 1 at 48 per Mason, Murphy, Brennan and Deane JJ. The arguments now sought to be advanced in respect to s 29 have not been the subject of prior judicial consideration. Nor was the now repealed s 29 of the National Crime Authority Act 1984 (Cth) the subject of judicial consideration.
Case: McVey v Commissioner of Pay-roll Tax (Vic) [1985] HCA 73 ; (1985) 85 ATC 4 ,131
Outcome: cited
reasonableness of the period of time within which production is required is to be determined objectively by the Court in the light of the surrounding circumstances: cf Deputy Commissioner of Taxation v Ganke [1975] 1 NSWLR 252 at 258. Nagle J there concluded: ... the question for consideration by the Court is an objective one and does not depend on the subjective views of the Commissioner. To adopt a contrary view would give rise to such a Draconian situation as to demand the clearest and most explicit words in s 264, and this I do not find. See also: McVey v Commissioner of Pay-roll Tax (Vic) [1985] HCA 73 ; (1985) 85 ATC 4 ,131 at 4,137 per Kaye J. The objective surrounding circumstances would include the breadth of each particular notice and (perhaps) the need for a recipient to construe the terms of a notice; the classes of documents required to be produced; the apparent ability of the recipient to collate and thereafter produce the documents; the time of the year at which a notice is served and intervening disruption to business activities by reason of public or religious holidays; whether there has been a prior attempt to require the production of the same or similar documents; and the time in fact allowed. Some consideration could also be given to the amount of time an examiner thought appropriate; although that consideration would not be decisive.
Case: Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40 ; (1986) 162 CLR 24
Outcome: cited
argument, however, must be rejected for either of two reasons, namely: (i) even if attention is confined to the reasons as provided by the examiner, it is not at all apparent that consideration was not given to the relevance of the documents required to be produced (and the potential large number of such documents) to the " special operation " being undertaken. It is difficult to conclude that the relevance of the documents required to be produced was not at the forefront of the examiner's mind when issuing the notice; and (ii) if there be any doubt, however, that doubt is resolved by recourse to the terms of the notices themselves. Each record on their face that the documents " are relevant to the said special operation ". Reliance upon a third argument is rejected. This third argument sought to focus upon: (iii) s 29(5) which provides that failure to comply with s 29(1A) " does not affect the validity of a notice " issued under s 29(1). This subsection simply provides that a failure to comply with the requirement to record in writing the reasons for the issue of a notice does not affect the validity of the notice. The case for the Commission was that it had in fact complied with the requirement; the case of the Applicants was that, having complied with the requirement, the Applicants could then rely upon the reasons provided to expose what the examiner's reasons were and what he had &#8212; and had not &#8212; taken into account. Had the record of those reasons provided by the examiner disclosed a failure to take into account a consideration which the examiner was " bound " to take into account ( Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40 ; (1986) 162 CLR 24 at 39 per Mason J), s 29(5) would not have protected that notice from invalidity. Section 29(5) may have protected the validity of the notice had the inadequacy in the record of reasons been put in issue &#8212; but it would not protect such reasons as were provided from scrutiny. The onus upon the Applicants to prove a failure to take into account the consideration identified has not been discharged.
Case: Minosea Pty Ltd v Australian Securities Commission (1994) 35 ALD 493
Outcome: cited
there is no requirement upon an examiner in all cases to extend to a person served with a notice issued under s 29 of the 2002 Act any prior opportunity to be heard. No such requirement has been imposed before issuing a notice under s 264 of the Income Tax Assessment Act 1936 (Cth) ( Sixth Ravini Pty Ltd and Eighth Oupan Pty Ltd v Federal Commissioner of Taxation [1985] FCA 213 ; (1985) 6 FCR 356 per Northrop J) or s 33 of the Australian Securities Commission Act 1989 (Cth) ( Minosea Pty Ltd v Australian Securities Commission (1994) 35 ALD 493 per Lindgren J).
Case: Norwest Holst Ltd v Secretary of State for Trade [1978] Ch 201
Outcome: cited
some guidance may be gleaned from other statutory provisions which authorise the issuing of a notice requiring the production of documents. The best known examples are perhaps s 155 of the Trade Practices Act 1974 (Cth) and s 264 of the Income Tax Assessment Act 1936 (Cth). Other examples of similar statutory provisions may also be given: eg Bankruptcy Act 1966 (Cth) s 77C ; Australian Securities and Investments Commission Act 2001 (Cth) ss 30 to 33 . When considering s 264 of the 1936 Act in Grant v Commissioner of Taxation [2000] FCA 1383 , 104 FCR 1 , Black CJ, Merkel and Finkelstein JJ relevantly observed: [12] There are competing factors to be taken into account when considering the proper construction of s 264. On the one hand, it is to be remembered that the section interferes with a person's freedom to elect not to provide information, whether it is to the revenue authorities or to a law enforcement agency. Not only is s 264 an interference with personal liberty, a refusal or failure to comply with s 264 is an offence, attracting a fine or even a term of imprisonment: see ss 8C , 8D and 8E of the Taxation Administration Act 1953 (Cth). On the other hand, the principal source of revenue for the Commonwealth is income tax. It is notorious that many and varied devices are employed to avoid the incidence of that tax. Sometimes, outright fraud is involved. For this reason the Parliament found it necessary to give the Commissioner power to make wide ranging enquiries to investigate whether tax is due. In these circumstances, the Court should proceed on the footing that the intention was to give the Commissioner an effective, but not an oppressive or unfair, power of investigation. There are like " competing factors " to be taken into account in the present statutory context. Lord Denning MR observed that "[i]n a wicked world, it not unknown for books and papers to be destroyed or lost ": Norwest Holst Ltd v Secretary of State for Trade [1978] Ch 201 at 224. That was in 1978. The world is now even more " wicked " &#8212; and even less safe.
Case: Sixth Ravini Pty Ltd and Eighth Oupan Pty Ltd v Federal Commissioner of Taxation [1985] FCA 213 ; (1985) 6 FCR 356
Outcome: cited
there is no requirement upon an examiner in all cases to extend to a person served with a notice issued under s 29 of the 2002 Act any prior opportunity to be heard. No such requirement has been imposed before issuing a notice under s 264 of the Income Tax Assessment Act 1936 (Cth) ( Sixth Ravini Pty Ltd and Eighth Oupan Pty Ltd v Federal Commissioner of Taxation [1985] FCA 213 ; (1985) 6 FCR 356 per Northrop J) or s 33 of the Australian Securities Commission Act 1989 (Cth) ( Minosea Pty Ltd v Australian Securities Commission (1994) 35 ALD 493 per Lindgren J).
Case: CDJ v VAJ [1998] HCA 76 ; (1998) 197 CLR 172
Outcome: applied
The test for determining whether fresh evidence should be received, pursuant to s 27 of the Federal Court of Australia Act 1976 (Cth) and Federal Court Rules Order 52, rule 36 has been considered by the High Court in CDJ v VAJ [1998] HCA 76 ; (1998) 197 CLR 172 in the joint judgment of McHugh, Gummow and Callinan JJ (197 CLR 201-202 [107]-[111]) where their Honours examined the nature of the discretion to admit fresh evidence on appeal under an analogue s 27. Their Honours noted that one consideration in construing the section was that it was remedial in nature and its principal purpose was to give to a Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of conventional appellate procedures and that a further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made. 8 Their Honours held that another consideration is the effect of the principle that a provision conferring judicial power upon a Court should be construed liberally and without the making of implications, or the imposition of limitations not founded in the words used by the legislature. For that reason, their Honours said that that applied to limitations which previously were to be seen in common law principles governing the grant of new trials upon proof of fresh evidence or from some other source. 9 Significantly, for the purposes of this appeal, their Honours (197 CLR 201-202 [111]) pointed out that another consideration is that the discretion given to an appellate Court hearing an appeal against an order made is the exercise of original jurisdiction, in this case by the Federal Magistrates Court. Their Honours said that it was highly unlikely that the Parliament, in conferring jurisdiction on a Full Court to hear appeals, intended that the analogue to s 27 should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction, and continued: 'Nor can the availability of further evidence relevant to the issues in the appeal be treated as equivalent to a ground of appeal, proof of which prima facie entitles the appellant to a new trial. The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.'
Case: WAEE v Minister for Immigration (2003) 75 ALD 630
Outcome: applied
The Tribunal is not required to refer to every piece of evidence and every contention made by the appellant in his written reasons: WAEE v Minister for Immigration (2003) 75 ALD 630 at [46]. 20 The Tribunal expressly considered and dealt with the appellant's claim that the Maoists had targeted him for his perceived involvement in the deaths of some of its activists, and the appellant's claims regarding the circumstances in which he was forced to leave his village of Singa in the Myagdi District. 21 The second ground which is sought to be argued alleges a breach of s 425 of the Migration Act 1958 (Cth) (the Act). It is conceded that the Tribunal raised with the appellant the issue to the effect that he was of no adverse interest to the Maoists because his wife had not been seriously harmed.
Case: Attorney-General (NSW) v Quinn [1990] HCA 21 ; (1990) 170 CLR 1
Outcome: applied
Even if it be accepted that there is implicit in the finding set out above an acceptance that the Maoists had the capacity to kill him, unless that can be identified as a "jurisdictional fact", there is no error of law, let alone a jurisdictional error, in the Tribunal accepting that proposition. It is no error of law in making a wrong finding of fact: Attorney-General (NSW) v Quinn [1990] HCA 21 ; (1990) 170 CLR 1 at [35-36] . 34 For the above reasons, in my opinion, the Court should give leave to the appellant to argue the three grounds which were sought to be relied on by him. However, for those reasons, the appeal should be dismissed with costs. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Acting Chief Justice Spender. Associate: Dated: 18 May 2007 Counsel for the Appellant: L.J. Karp Solicitor for the Appellant: Parish Patience Immigration Lawyers Counsel for the Respondent: T. Wong Solicitor for the Respondent: Clayton Utz Date of Hearing: 14 May 2007 Date of Judgment: 18 May 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/760.html
Case: Accfin International Securities Co Ltd v National Trustee Executors and Agency Co of Australasia Ltd (1990) 99 FLR 432
Outcome: discussed
fact that there are related proceedings in the other Registry and that it would be convenient for one judge to manage and possibly hear the two cases together is a relevant consideration and, depending on the circumstances, may be decisive. In Accfin International Securities Co Ltd v National Trustee Executors and Agency Co of Australasia Ltd (1990) 99 FLR 432 , a case involving an application under the Jurisdiction of Courts (Cross-vesting) Act 1987 (Qld), MacKenzie J said (at 435): "I have finally concluded that the balance is tilted in favour of the Queensland proceedings being dealt with in the Victorian Supreme Court because it is desirable that the issues that will, on the pleadings, be litigated in the Queensland proceedings as between the defendants and the third parties be litigated only once, if possible. That result will more likely be achieved if the issues in the Queensland proceedings, which appear to be only one aspect of the Victorian proceedings, are litigated in or in conjunction with those proceedings." Markethaven does not accept that this proceeding should be tried together with the representative proceeding. The decision to bring this proceeding in the South Australia District Registry was not a capricious decision. It may be explained by the matters Mr Dugan sets out in his affidavit and, in particular, the facts that the administrators' head office and operational staff are in Adelaide and its solicitors and counsel practise, primarily at least, in this State. However, for the reasons set out below, there is a sound reason to make the order sought by the Commonwealth and that is the advantages of this proceeding being dealt with in the New South Wales District Registry in conjunction with the three proceedings already in that Registry. The balance of convenience clearly favours an order that this proceeding be conducted and continued in the New South Wales District Registry of this Court. Relevant matters 1. The significance of the other proceedings in the New South Wales District Registry
Case: Australian Competition and Consumer Commission v Fila Sport Oceania Pty Ltd [2003] FCA 430
Outcome: cited
Commonwealth contends that this factor is irrelevant. Markethaven contends that it is a relevant matter and that its solicitors and counsel practise in Adelaide and that it has a pre-existing relationship with them. The authorities suggest that this is not a matter to be accorded great weight: Australian Competition and Consumer Commission v Fila Sport Oceania Pty Ltd [2003] FCA 430 at [8] and [25] per Hill J; Australian Competition &amp; Consumer Commission v Pauls Ltd [2002] FCA 71 at [13] per O'Loughlin J.
Case: Australian Competition &amp; Consumer Commission v Pauls Ltd [2002] FCA 71
Outcome: cited
Commonwealth contends that this factor is irrelevant. Markethaven contends that it is a relevant matter and that its solicitors and counsel practise in Adelaide and that it has a pre-existing relationship with them. The authorities suggest that this is not a matter to be accorded great weight: Australian Competition and Consumer Commission v Fila Sport Oceania Pty Ltd [2003] FCA 430 at [8] and [25] per Hill J; Australian Competition &amp; Consumer Commission v Pauls Ltd [2002] FCA 71 at [13] per O'Loughlin J.
Case: Cycles &amp; Wheelman Pty Ltd v Beltech Corporation Ltd (1988) 80 ALR 279
Outcome: discussed
Cycles &amp; Wheelman Pty Ltd v Beltech Corporation Ltd (1988) 80 ALR 279 , Gummow J (as a judge of this Court) said (at 281): "It is not, in my view, simply a question of the court locating the balance of convenience, because the court must be satisfied by the applicant that there be a change in the status quo and in the identity of the 'proper place' and that transfer be ordered." (See also my reasons in Rafferty v Time 2000 West Pty Limited [2008] FCA 1925 at [3] - [5] .)
Case: Rafferty v Time 2000 West Pty Limited [2008] FCA 1925
Outcome: cited
Cycles &amp; Wheelman Pty Ltd v Beltech Corporation Ltd (1988) 80 ALR 279 , Gummow J (as a judge of this Court) said (at 281): "It is not, in my view, simply a question of the court locating the balance of convenience, because the court must be satisfied by the applicant that there be a change in the status quo and in the identity of the 'proper place' and that transfer be ordered." (See also my reasons in Rafferty v Time 2000 West Pty Limited [2008] FCA 1925 at [3] - [5] .)