mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Alphapharm Pty Ltd v Merck &amp; Co Inc [2006] FCA 1227
Outcome: cited
while s 31A of the FCA Act (mutatis mutandis, s 17A of the FM Act) achieves nothing of significance in relation to migration cases, it is of general application and therefore affects all proceedings brought in the Court. The question of the precise meaning of s 31A of the FCA Act and s 17A of the FM Act and of any change they have made has already been the subject of numerous decisions in this Court and the Federal Magistrates Court. The most recent review of them of which I am aware is that of Driver FM on 19 March 2007 in Vivid Entertainment LLC v Digital Sinema Australia Pty Ltd [2007] FMCA 157 at [18] - [28] . The authorities to which his Honour referred are: Howard v Australian Fisheries Management Authority [2006] FMCA 975 ; MG Distribution Pty Ltd v Khan [2006] FMCA 666 ; Cate v International Flavours and Fragrances (Aust) Pty Ltd [2007] FMCA 36 ; Vans Inc v Offprice.Com.Au Pty Ltd [2006] FCA 137 ; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 701 IPR 146; Jewiss v Deputy Commissioner of Taxation [2006] FCA 1688 ; Alphapharm Pty Ltd v Merck &amp; Co Inc [2006] FCA 1227 ; Duncan v Lipscombe Child Care Services Inc [2006] FCA 458 ; (2006) 150 IR 471 ; Australian and International Pilots Association v Qantas Airways Ltd [2006] FCA 1441 ; Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in liq) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416 ; Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 ; Hicks v Ruddock [2007] FCA 299. Not one of these cases was a migration case. In other words, the task of exploring the meaning of s 31A has arisen in a wide range of the cases in the Federal Magistrates Court and this Court, with the striking exception of migration cases, no doubt for the reason that I mentioned earlier: the provision is of no practical importance in them.
Case: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321
Outcome: discussed
Mr O'Neill's decision was not within the expression "decision to which this Act applies" in s 3(1) of the AD(JR) Act because it was not "a decision of an administrative character made ... under an enactment ..." because: it was not a final, ultimate or operative determination, and was therefore not a "decision" for the purposes of the AD(JR) Act ( Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 (" ABT v Bond ") at 338); and it was not required or authorised by any enactment, and legal rights or duties do not owe in an immediate sense their existence to the decision, or depend upon the presence of the decision for their enforcement ( Griffith University v Tang [2005] HCA 7 ; (2005) 221 CLR 99 (" Tang ") at [78] [80]). The Guidelines are not "an enactment" as defined in s 3(1) of the AD(JR) Act, because they are not an instrument made under an Act: the most that can be said is that they were issued by the Commissioner to ATO officers as part of his general administration of the Income Tax Assessment Act 1936 (Cth) ("the ITAA"), s 8 of which provides: "The Commissioner shall have the general administration of this Act".
Case: Australian and International Pilots Association v Qantas Airways Ltd [2006] FCA 1441
Outcome: cited
while s 31A of the FCA Act (mutatis mutandis, s 17A of the FM Act) achieves nothing of significance in relation to migration cases, it is of general application and therefore affects all proceedings brought in the Court. The question of the precise meaning of s 31A of the FCA Act and s 17A of the FM Act and of any change they have made has already been the subject of numerous decisions in this Court and the Federal Magistrates Court. The most recent review of them of which I am aware is that of Driver FM on 19 March 2007 in Vivid Entertainment LLC v Digital Sinema Australia Pty Ltd [2007] FMCA 157 at [18] - [28] . The authorities to which his Honour referred are: Howard v Australian Fisheries Management Authority [2006] FMCA 975 ; MG Distribution Pty Ltd v Khan [2006] FMCA 666 ; Cate v International Flavours and Fragrances (Aust) Pty Ltd [2007] FMCA 36 ; Vans Inc v Offprice.Com.Au Pty Ltd [2006] FCA 137 ; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 701 IPR 146; Jewiss v Deputy Commissioner of Taxation [2006] FCA 1688 ; Alphapharm Pty Ltd v Merck &amp; Co Inc [2006] FCA 1227 ; Duncan v Lipscombe Child Care Services Inc [2006] FCA 458 ; (2006) 150 IR 471 ; Australian and International Pilots Association v Qantas Airways Ltd [2006] FCA 1441 ; Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in liq) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416 ; Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 ; Hicks v Ruddock [2007] FCA 299. Not one of these cases was a migration case. In other words, the task of exploring the meaning of s 31A has arisen in a wide range of the cases in the Federal Magistrates Court and this Court, with the striking exception of migration cases, no doubt for the reason that I mentioned earlier: the provision is of no practical importance in them.
Case: Australian National University v Burns [1982] FCA 191 ; (1982) 43 ALR 25
Outcome: cited
CJ referred (at [10]) to the University's reliance on judgments in Australian National University v Burns [1982] FCA 191 ; (1982) 43 ALR 25 and ANU v Lewins in this Court to the effect that in order to satisfy the description of a decision of an administrative character made under an enactment, a decision must be authorised or required by a statute and must be given legal force or effect by the statute. The Chief Justice observed that it is not enough that the decision be within power, and that the AD(JR) Act does not provide for review of all decisions of an administrative character made in pursuance of any power or authority that has its foundation in a statute. Gleeson CJ approved of a statement by Lehane J in ANU v Lewins (at 101) that a decision meets the test "only if it is one for the making of which the relevant statute either expressly or impliedly provides and one to which the statute gives legal force or effect". The ITAA does not expressly or impliedly provide for the making of guidelines or the making of a decision excluding particular documents from their scope. Moreover, the ITAA does not give legal force or effect to the Guidelines or to Mr O'Neill's decision. The proper analysis is that the Guidelines have been made by the Commissioner pursuant to his general power of administration under s 8 of the ITAA; the granting of the concession and the discretion to exclude particular documents from it are attributable only to that general power of administration; and it is O 33 r 12 of the FCRs that imposes a procedural obligation on the applicants as an adjunct to the appeal proceedings.
Case: Australian National University v Lewins (1996) 68 FCR 87
Outcome: cited
respect to whether the decision was made under an "instrument", the applicants submit that Tang establishes that the Guidelines are an instrument for the purposes of the AD(JR) Act. The High Court's decision in that case departed from previous authority to the effect that documents issued under a general power of administration could not constitute an instrument under the AD(JR) Act (as an illustration of that previous course of authority they refer to Australian National University v Lewins (1996) 68 FCR 87 (" ANU v Lewins") ).
Case: Australian Solar Mesh Sales Pty Ltd v Anderson [2000] FCA 864 ; (2000) 101 FCR 1
Outcome: cited
some respects, the availability of review under s 39B(1A)(c) of the Judiciary Act is wider, and in some respects narrower, than that available under the AD(JR) Act. What is important for present purposes is that the notion of a "matter ... arising under any laws made by the Parliament" in s 39B(1)(c) of the Judiciary Act is wider than that of a "decision ... made under an enactment" of s 5 of the AD(JR) Act. Reference may be made to such cases as LNC Industries Ltd v BMW (Aust) Ltd [1983] HCA 31 ; (1983) 151 CLR 575 , Australian Solar Mesh Sales Pty Ltd v Anderson [2000] FCA 864 ; (2000) 101 FCR 1 , and ACTEW Corporation Ltd v Pangallo [2002] FCAFC 325 ; (2002) 127 FCR 1 , for an indication of the breadth of the concept of a matter arising under any laws made by the Parliament.
Case: Bellinz v Commissioner of Taxation (1998) 84 FCR 154
Outcome: distinguished
v Commissioner of Taxation (1998) 84 FCR 154 is also distinguishable. A Full Court of this Court held that where the question was one as to the inclusion of an amount as assessable income, or the allowance of an amount as a deduction, and no question of discretion or of administrative procedure arose, the Commissioner cannot be said to have acted unfairly where he has acted in accordance with the law. This is true even if there is an element of discrimination as between his decision in the case at hand and his decision in other cases. Such a holding, therefore, does not cover the present case because the Guidelines lay down administrative procedures and provide for a discretionary decision to exempt certain documents from the concession granted in them.
Case: Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 70 IPR 146
Outcome: cited
while s 31A of the FCA Act (mutatis mutandis, s 17A of the FM Act) achieves nothing of significance in relation to migration cases, it is of general application and therefore affects all proceedings brought in the Court. The question of the precise meaning of s 31A of the FCA Act and s 17A of the FM Act and of any change they have made has already been the subject of numerous decisions in this Court and the Federal Magistrates Court. The most recent review of them of which I am aware is that of Driver FM on 19 March 2007 in Vivid Entertainment LLC v Digital Sinema Australia Pty Ltd [2007] FMCA 157 at [18] - [28] . The authorities to which his Honour referred are: Howard v Australian Fisheries Management Authority [2006] FMCA 975 ; MG Distribution Pty Ltd v Khan [2006] FMCA 666 ; Cate v International Flavours and Fragrances (Aust) Pty Ltd [2007] FMCA 36 ; Vans Inc v Offprice.Com.Au Pty Ltd [2006] FCA 137 ; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 701 IPR 146; Jewiss v Deputy Commissioner of Taxation [2006] FCA 1688 ; Alphapharm Pty Ltd v Merck &amp; Co Inc [2006] FCA 1227 ; Duncan v Lipscombe Child Care Services Inc [2006] FCA 458 ; (2006) 150 IR 471 ; Australian and International Pilots Association v Qantas Airways Ltd [2006] FCA 1441 ; Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in liq) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416 ; Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 ; Hicks v Ruddock [2007] FCA 299. Not one of these cases was a migration case. In other words, the task of exploring the meaning of s 31A has arisen in a wide range of the cases in the Federal Magistrates Court and this Court, with the striking exception of migration cases, no doubt for the reason that I mentioned earlier: the provision is of no practical importance in them.
Case: Cate v International Flavours and Fragrances (Aust) Pty Ltd [2007] FMCA 36
Outcome: cited
while s 31A of the FCA Act (mutatis mutandis, s 17A of the FM Act) achieves nothing of significance in relation to migration cases, it is of general application and therefore affects all proceedings brought in the Court. The question of the precise meaning of s 31A of the FCA Act and s 17A of the FM Act and of any change they have made has already been the subject of numerous decisions in this Court and the Federal Magistrates Court. The most recent review of them of which I am aware is that of Driver FM on 19 March 2007 in Vivid Entertainment LLC v Digital Sinema Australia Pty Ltd [2007] FMCA 157 at [18] - [28] . The authorities to which his Honour referred are: Howard v Australian Fisheries Management Authority [2006] FMCA 975 ; MG Distribution Pty Ltd v Khan [2006] FMCA 666 ; Cate v International Flavours and Fragrances (Aust) Pty Ltd [2007] FMCA 36 ; Vans Inc v Offprice.Com.Au Pty Ltd [2006] FCA 137 ; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 701 IPR 146; Jewiss v Deputy Commissioner of Taxation [2006] FCA 1688 ; Alphapharm Pty Ltd v Merck &amp; Co Inc [2006] FCA 1227 ; Duncan v Lipscombe Child Care Services Inc [2006] FCA 458 ; (2006) 150 IR 471 ; Australian and International Pilots Association v Qantas Airways Ltd [2006] FCA 1441 ; Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in liq) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416 ; Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 ; Hicks v Ruddock [2007] FCA 299. Not one of these cases was a migration case. In other words, the task of exploring the meaning of s 31A has arisen in a wide range of the cases in the Federal Magistrates Court and this Court, with the striking exception of migration cases, no doubt for the reason that I mentioned earlier: the provision is of no practical importance in them.
Case: Commonwealth v Verwayen [1990] HCA 39 ; (1990) 170 CLR 394
Outcome: cited
relation to the estoppel argument, the representations contained in the Guidelines and the Commissioner's conduct in the tax appeals, including his acceptance of the applicants' claim for "accountant's privilege under the Guidelines", entitle the applicants to an injunction against the Commissioner as an officer of the Commonwealth on the basis of estoppel and/or by reference to the doctrines of waiver and election: Commonwealth v Verwayen [1990] HCA 39 ; (1990) 170 CLR 394 (" Verwayen "). This Court's jurisdiction under s 39B of the Judiciary Act is therefore properly enlivened.
Case: Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in liq) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416
Outcome: cited
while s 31A of the FCA Act (mutatis mutandis, s 17A of the FM Act) achieves nothing of significance in relation to migration cases, it is of general application and therefore affects all proceedings brought in the Court. The question of the precise meaning of s 31A of the FCA Act and s 17A of the FM Act and of any change they have made has already been the subject of numerous decisions in this Court and the Federal Magistrates Court. The most recent review of them of which I am aware is that of Driver FM on 19 March 2007 in Vivid Entertainment LLC v Digital Sinema Australia Pty Ltd [2007] FMCA 157 at [18] - [28] . The authorities to which his Honour referred are: Howard v Australian Fisheries Management Authority [2006] FMCA 975 ; MG Distribution Pty Ltd v Khan [2006] FMCA 666 ; Cate v International Flavours and Fragrances (Aust) Pty Ltd [2007] FMCA 36 ; Vans Inc v Offprice.Com.Au Pty Ltd [2006] FCA 137 ; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 701 IPR 146; Jewiss v Deputy Commissioner of Taxation [2006] FCA 1688 ; Alphapharm Pty Ltd v Merck &amp; Co Inc [2006] FCA 1227 ; Duncan v Lipscombe Child Care Services Inc [2006] FCA 458 ; (2006) 150 IR 471 ; Australian and International Pilots Association v Qantas Airways Ltd [2006] FCA 1441 ; Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in liq) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416 ; Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 ; Hicks v Ruddock [2007] FCA 299. Not one of these cases was a migration case. In other words, the task of exploring the meaning of s 31A has arisen in a wide range of the cases in the Federal Magistrates Court and this Court, with the striking exception of migration cases, no doubt for the reason that I mentioned earlier: the provision is of no practical importance in them.
Case: Daihatsu Australia Pty Ltd v Deputy Commissioner of Taxation (2001) 182 ALR 239
Outcome: distinguished
need not recount in further detail the claims of estoppel, unfairness and waiver. In relation to "substantive unfairness", the applicants cite R v Inland Revenue Commissioner; Ex parte Preston [1984] UKHL 5 ; [1985] AC 835 at 866 7 (Templeman LJ) (for the principle that judicial review may be warranted where a commissioner's decision is unfair and amounting to a breach of contract or breach of representation, and therefore within the ambit of an abuse of power). They acknowledge the note of caution in relation to this principle that was sounded by Lehane J in Daihatsu Australia Pty Ltd v Deputy Commissioner of Taxation (2001) 182 ALR 239 (" Daihatsu ") at [51] (that note of caution being that such a principle has not been the subject of extended consideration by Australian courts), but say that at the trial, they will submit that the principles of administrative law in Australia are developing to take account of a form of doctrine of substantive unfairness of the kind described by Lord Templeman. REASONING Order 20 of the FCRs and s 31A of the FCA Act Deloitte and Daihatsu concerned notices issued by the Commissioner under s 264 of the ITAA. In Deloitte , Goldberg J (at 451) expressed the opinion, and the Commissioner did not dispute, that the Commissioner's delegate was bound to have regard to the Guidelines when deciding to issue a notice under s 264. His Honour said that for this reason it was not necessary for him to deal with the Commissioner's submission that the Guidelines were not a source of rights. In Daihatsu , the taxpayer sought relief under s 16 of the AD(JR) Act and s 39B of the Judiciary Act in respect of notices issued under s 264 of the ITAA. Lehane J (at [68]) refused relief on the merits.
Case: Deputy Commissioner of Taxation v Salcedo [2005] QCA 227 ; [2005] 2 Qd R 232
Outcome: followed
do not propose to add greatly to the discussion of the meaning and effect of s 31A. In the United Kingdom it has been held in the context of the similar rule 24.2 of the CPRs noted at [53] above, that the expressions "no real prospect of succeeding" and "no real prospect of successfully defending" require attention to be given to real, as opposed to "fanciful" or "merely arguable" prospects: Swain v Hillman [2001] 1 All ER 91 at 92; Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1 at [90], [95], [133] [134], [158] [162]; ED &amp; F Man Products Ltd v Patel [2003] EWCA Civ 472 at [8] . The Queensland Court of Appeal has similarly held, following Swain v Hillman and Three Rivers District Council v Governor and Company of the Bank of England , that the "no reasonable prospects of success" test requires the court to determine whether there are "real" as opposed to "fanciful" prospects of success: Deputy Commissioner of Taxation v Salcedo [2005] QCA 227 ; [2005] 2 Qd R 232 at 235. The New South Wales Court of Appeal had to consider the expression "reasonable prospects of success" as it occurred in s 198J of the Legal Profession Act 1987 (NSW) in Lemoto v Able Technical Pty Ltd [2005] NSWCA 153 ; (2005) 63 NSWLR 300. That section prohibited a solicitor or barrister from providing legal services on a claim or defence of a claim for damages unless the solicitor or barrister reasonably believed on the basis of provable facts and a reasonably arguable view of the law that the claim or the defence had reasonable prospects of success. Later subsections elaborated on the meaning of the prohibition. This fact, coupled with the fact that the prohibition was directed to the reasonable belief of the solicitor or barrister, renders the discussion not directly relevant to the summary dismissal context in which the court is required to determine if there are reasonable prospects of success following an inter partes hearing.
Case: Dey v Victorian Railway Commissioners (1949) 78 CLR 62
Outcome: cited
s 31A I must be satisfied that the applicants have no reasonable prospect of success, but as s 31A(3) makes clear, this does not mean that I must be satisfied that the proceeding is hopeless or bound to fail. I suggest that the legislature's intention in enacting s 31A was to lower the bar for obtaining summary judgment (including summary dismissal) below the level that had been fixed by such authorities as Dey v Victorian Railway Commissioners (1949) 78 CLR 62 at 91-92, and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129-130: see Lawrenson Light Metal Die Casting Pty Ltd (in liq) v Cosmick Pty Ltd [2006] FCA 753 at [15].
Case: Deloitte Touche Tohmatsu v Federal Commissioner of Taxation (1998) 40 ATR 435
Outcome: distinguished
and Daihatsu concerned notices issued by the Commissioner under s 264 of the ITAA. In Deloitte , Goldberg J (at 451) expressed the opinion, and the Commissioner did not dispute, that the Commissioner's delegate was bound to have regard to the Guidelines when deciding to issue a notice under s 264. His Honour said that for this reason it was not necessary for him to deal with the Commissioner's submission that the Guidelines were not a source of rights. In Daihatsu , the taxpayer sought relief under s 16 of the AD(JR) Act and s 39B of the Judiciary Act in respect of notices issued under s 264 of the ITAA. Lehane J (at [68]) refused relief on the merits.
Case: Duncan v Lipscombe Child Care Services Inc [2006] FCA 458 ; (2006) 150 IR 471
Outcome: cited
while s 31A of the FCA Act (mutatis mutandis, s 17A of the FM Act) achieves nothing of significance in relation to migration cases, it is of general application and therefore affects all proceedings brought in the Court. The question of the precise meaning of s 31A of the FCA Act and s 17A of the FM Act and of any change they have made has already been the subject of numerous decisions in this Court and the Federal Magistrates Court. The most recent review of them of which I am aware is that of Driver FM on 19 March 2007 in Vivid Entertainment LLC v Digital Sinema Australia Pty Ltd [2007] FMCA 157 at [18] - [28] . The authorities to which his Honour referred are: Howard v Australian Fisheries Management Authority [2006] FMCA 975 ; MG Distribution Pty Ltd v Khan [2006] FMCA 666 ; Cate v International Flavours and Fragrances (Aust) Pty Ltd [2007] FMCA 36 ; Vans Inc v Offprice.Com.Au Pty Ltd [2006] FCA 137 ; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 701 IPR 146; Jewiss v Deputy Commissioner of Taxation [2006] FCA 1688 ; Alphapharm Pty Ltd v Merck &amp; Co Inc [2006] FCA 1227 ; Duncan v Lipscombe Child Care Services Inc [2006] FCA 458 ; (2006) 150 IR 471 ; Australian and International Pilots Association v Qantas Airways Ltd [2006] FCA 1441 ; Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in liq) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416 ; Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 ; Hicks v Ruddock [2007] FCA 299. Not one of these cases was a migration case. In other words, the task of exploring the meaning of s 31A has arisen in a wide range of the cases in the Federal Magistrates Court and this Court, with the striking exception of migration cases, no doubt for the reason that I mentioned earlier: the provision is of no practical importance in them.
Case: Elias v Commissioner of Taxation (2002) 123 FCR 499
Outcome: cited
the proposition that the Commissioner is entitled to adopt a policy consistent with the statute to provide guidance as to the exercise of a statutory discretionary power, the applicants cite Elias v Commissioner of Taxation (2002) 123 FCR 499 at [34]. Hely J there held that while there must not be an inflexible policy that limits a statutory discretion, a policy as to how the discretion will "normally" be exercised can be adopted. The case concerned the power given to the Commissioner by s 255- 10 (1) of Sch 1 of the TAA to defer the time at which the amount of a tax-related liability was, or was to become, due and payable. With respect to the competency of the AD(JR) application, the applicants submit that: