mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Brock v United States of America [2007] FCAFC 3 ; (2007) 157 FCR 121
Outcome: discussed
At the commencement of the substantive hearing, I raised the issue as to whether satisfaction of the requirements of s 19(1) could be considered in a review pursuant to s 21. I expressed a tentative view in the negative and suggested that challenge to those requirements would need to be by way of a separate proceeding based on administrative law grounds. Counsel for Finland submitted that that view was contrary to current practice, based upon the decisions of Full Courts in Knauder v Moore [2002] FCAFC 404 ; (2002) 127 FCR 327 and Brock v United States of America [2007] FCAFC 3 ; (2007) 157 FCR 121. As those decisions do provide a basis for what was described as the current practice, I was prepared to proceed accordingly in the absence of argument to the contrary. 5 Once that view is taken it is then necessary to grapple with the conduct of the review. There is little controversy as to the conduct of a review of a decision based upon s 19(2). There is little practical difference between the views of Black CJ (at [20] [24] and [29]) and Rares J (at [73] [80]) in Brock [2007] FCAFC 3 ; 157 FCR 121. As was said in Dutton v O'Shane [2003] FCAFC 195 ; (2003) 132 FCR 352 (at 386): " the s 21 review is not one of judicial review in the strict sense. It is by way of rehearing in which the court is authorised to reach its own conclusions on eligibility for surrender, albeit it is limited in so doing by having regard only to the material before the magistrate" 7 The question was discussed by Black CJ in Brock [2007] FCAFC 3 ; 157 FCR 121, particularly at [28] and [30]. It was said (at [30]) that: "the jurisdictional precondition provided for by s 19(1)(d) should not be treated as a jurisdictional fact, subject to review by way of rehearing; that is, absent an error of law, the magistrate's decision, or her 'consideration' under s 19(1)(d) , should be final" for the purposes of a s 21 review. 8 Rares J held that the magistrate in that case had failed to consider a relevant consideration in addressing the question under s 19(1)(d) and for that reason the proceedings lacked any lawful authority ( Brock [2007] FCAFC 3 ; 157 FCR 121 at [115] ). Interestingly, Rares J went on to say that: "Even if the Court is unable to determine this question on a review under s 21 of the Act, s 22 of the Federal Court of Australia Act requires that the Court grant either absolutely, or on such terms and conditions as it thinks just, all remedies to which any of the parties appear to be entitled." Jacobson J upheld the magistrate no matter what legal approach was to be taken ([50] [52]). 9 Uninstructed by authority, I would have thought that, if the review pursuant to s 21 encompasses all aspects of s 19, then there must be the same type of review in relation to all aspects, namely, a rehearing, albeit limited to the materials before the magistrate. Section 21 only provides for one kind of review. On that approach, I would form my own view as to the existence of the preconditions, including s 19(1)(d).
Case: Dutton v O'Shane [2003] FCAFC 195 ; (2003) 132 FCR 352
Outcome: cited
Once that view is taken it is then necessary to grapple with the conduct of the review. There is little controversy as to the conduct of a review of a decision based upon s 19(2). There is little practical difference between the views of Black CJ (at [20] [24] and [29]) and Rares J (at [73] [80]) in Brock [2007] FCAFC 3 ; 157 FCR 121. As was said in Dutton v O'Shane [2003] FCAFC 195 ; (2003) 132 FCR 352 (at 386): " the s 21 review is not one of judicial review in the strict sense. It is by way of rehearing in which the court is authorised to reach its own conclusions on eligibility for surrender, albeit it is limited in so doing by having regard only to the material before the magistrate"
Case: Finance Facilities Pty Ltd v Federal Commissioner of Taxation [1971] HCA 12 ; (1971) 127 CLR 106
Outcome: cited
Section 21(2) provides that, in circumstances such as the present, the Court "may" quash the magistrate's order and direct the magistrate to order the release of the applicant. That was the relief sought in the application. Indeed, the structure of the subsection assumes that that will be the result where the order is not confirmed. In my opinion, the word "may" in the subsection is a Julius v Bishop of Oxford imperative (see the explanation by Windeyer J in Finance Facilities Pty Ltd v Federal Commissioner of Taxation [1971] HCA 12 ; (1971) 127 CLR 106 at 134 135). Section 21 does not authorise the Court to directly order the release of the person. That course was taken in Knauder [2002] FCAFC 404 ; 127 FCR 327 apparently based upon the submissions and consent of the country respondent (see Conti J at [41]). That may have been a sensible course in order to avoid double handling in a matter affecting the liberty of the subject, but the decision cannot be seen as authority for such a power absent consent.
Case: Minister for Immigration v Bhardwaj [2002] HCA 11 ; (2002) 209 CLR 597
Outcome: cited
In the events which have happened there is no effective dispute between the parties that the requirement of s 19(1)(b) did not exist so much is decided by the relief granted by Rares J. Although there is strictly no estoppel, because the parties are different, counsel for the respondent concedes that I would follow Rares J and that the result would be that the existence of the two successive s 16 notices that were issued prior to the hearing before the magistrate is swept away ( Minister for Immigration v Bhardwaj [2002] HCA 11 ; (2002) 209 CLR 597; Plaintiff S157/2002 v Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476 at 506 [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ). It inevitably follows that a necessary precondition to the magistrate's order in question did not exist and the order cannot survive.
Case: Plaintiff S157/2002 v Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476
Outcome: cited
In the events which have happened there is no effective dispute between the parties that the requirement of s 19(1)(b) did not exist so much is decided by the relief granted by Rares J. Although there is strictly no estoppel, because the parties are different, counsel for the respondent concedes that I would follow Rares J and that the result would be that the existence of the two successive s 16 notices that were issued prior to the hearing before the magistrate is swept away ( Minister for Immigration v Bhardwaj [2002] HCA 11 ; (2002) 209 CLR 597; Plaintiff S157/2002 v Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476 at 506 [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ). It inevitably follows that a necessary precondition to the magistrate's order in question did not exist and the order cannot survive.
Case: Republic of South Africa v Dutton (1997) 77 FCR 128
Outcome: cited
Does that approach apply to review of the requirements of s 19(1)? That question was not clearly or satisfactorily dealt with in Knauder [2002] FCAFC 404 ; 127 FCR 327. Conti J (having noticed the point that troubles me at [36]) dealt with the question at [37] [40]. There is some support in those paragraphs for the view that the question of reasonable time in s 19(1)(d) is an objective fact for determination by the Court pursuant to s 21 but, on a proper reading, it seems to me to be based upon the view that the circumstances in that case were such that there could be no reasonable or rational finding that the applicant had reasonable time in which to prepare for the conduct of the proceedings. Allsop J gave the other leading judgment. His Honour found both that there was an absence of the necessary jurisdictional fact on the basis that the magistrate's view was arbitrary and capricious, and that there was an absence of procedural fairness afforded as a matter of fact and law. His Honour held that the denial of procedural fairness was not cured by the s 21 review as held by the primary Judge but preferred not to decide the question whether failure to satisfy s 19(1)(d) of itself required quashing the orders of the magistrate. Mansfield J confined his reasons for making the orders to the failure of the magistrate to accord procedural fairness to the appellant. How failure to accord procedural fairness comes within the rubric of a s 21 review was not explained (cf Hill J in Republic of South Africa v Dutton (1997) 77 FCR 128 at 136D, noticed by Conti J in Knauder [2002] FCAFC 404 ; 127 FCR 327 at [36] ).
Case: Williams v Minister for Justice and Customs of the Commonwealth of Australia (2007) 157 FCR 286
Outcome: referred to
Reference was made to a passage in the judgment of the Full Court in Williams v Minister for Justice and Customs of the Commonwealth of Australia (2007) 157 FCR 286. That was a proceeding pursuant to s 39B of the Judiciary Act 1903 (Cth) rather than a proceeding pursuant to s 21 of the Act. It is, thus, not directly in point. However, the statement ( Williams 157 FCR 286 at [53]): "The absence of a valid notice under s 16(1) is obviously fatal to the proceedings before the magistrate. The discharge of recognisances would also necessarily follow." does no more than recognise the effect of the text of s 19(1) and s 21(2)(b)(i) of the Act and is consistent with what should happen in this case. 13 Even if there were a discretion to withhold relief pursuant to s 21(2) I would not do so. Counsel for the applicant wishes to raise further questions as to the effect of both s 15 and s 17(2) of the Act. Counsel for Finland contends that the extradition can be revived. All of that is irrelevant to a review of the particular decision pursuant to s 21. That section should operate as enacted. The taking of other steps by one side or the other will be governed by other considerations. The applicant has been in custody since July 2006. He should not be kept in custody for the convenience of the authorities whilst they work out what, if anything, can be done to revive the extradition. There should be no deprivation of liberty that is not clearly authorised by statute. 14 There may be a case for endeavouring to end the proliferation and fragmentation of litigation. However, it would be a mistake, in my opinion, to use this proceeding as a vehicle for seeking to solve all issues connected with this extradition. The hearing was completed and judgment reserved on a particular basis between particular parties. In any event, the amendment sought by the applicant would only select one aspect of the matter and only seeks declaratory relief. The amendment is refused.
Case: Dickason v Dickason [1913] HCA 77 ; (1913) 17 CLR 50
Outcome: cited
the principles of open justice require that all evidence before a court be open to the public gaze. This achieves the important objective of transparency in judicial decision-making. That is fundamental to the proper administration of justice and public confidence in the integrity and independence of the Courts and their decisions. But, it is an objective which, on occasion, must be balanced against the paramount duty of the Court to do justice. In Scott v Scott [1913] AC 417 at 437-438, Viscount Haldane LC explained these principles, which have been followed and accepted as fundamental in Australia since Dickason v Dickason [1913] HCA 77 ; (1913) 17 CLR 50 at 51 per Barton ACJ, Isaacs, Gavan Duffy, Powers and Rich JJ. One of the exceptions to which his Lordship referred was the protection of secret processes and confidential information.
Case: John Fairfax &amp; Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465
Outcome: followed
Court may only depart from exercising its jurisdiction fully in public where, and then only to the extent that, the departure is necessary in the interests of justice or where legislation has altered the open justice rule: John Fairfax &amp; Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476G-477A per McHugh JA, Glass JA agreeing. Even in the latter situation, the legislative power to affect the conduct of the proceedings of a court exercising the judicial power of the Commonwealth cannot be used to achieve a result that is not compatible with the implied Constitutional freedom of communication on government and political matter: Lange v Australian Broadcasting Corporation [1997] HCA 25 ; (1997) 189 CLR 520 at 567-568 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ; John Fairfax Publications Pty Ltd v Attorney-General (NSW) [2000] NSWCA 198 ; (2000) 181 ALR 694 at 703-707 [52] - [75] , 715-716 [114]-[119] per Spigelman CJ, 721 [157] per Priestley JA.
Case: John Fairfax Publications Pty Ltd v Attorney-General (NSW) [2000] NSWCA 198 ; (2000) 181 ALR 694
Outcome: cited
Court may only depart from exercising its jurisdiction fully in public where, and then only to the extent that, the departure is necessary in the interests of justice or where legislation has altered the open justice rule: John Fairfax &amp; Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476G-477A per McHugh JA, Glass JA agreeing. Even in the latter situation, the legislative power to affect the conduct of the proceedings of a court exercising the judicial power of the Commonwealth cannot be used to achieve a result that is not compatible with the implied Constitutional freedom of communication on government and political matter: Lange v Australian Broadcasting Corporation [1997] HCA 25 ; (1997) 189 CLR 520 at 567-568 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ; John Fairfax Publications Pty Ltd v Attorney-General (NSW) [2000] NSWCA 198 ; (2000) 181 ALR 694 at 703-707 [52] - [75] , 715-716 [114]-[119] per Spigelman CJ, 721 [157] per Priestley JA.
Case: Lange v Australian Broadcasting Corporation [1997] HCA 25 ; (1997) 189 CLR 520
Outcome: discussed
Court may only depart from exercising its jurisdiction fully in public where, and then only to the extent that, the departure is necessary in the interests of justice or where legislation has altered the open justice rule: John Fairfax &amp; Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476G-477A per McHugh JA, Glass JA agreeing. Even in the latter situation, the legislative power to affect the conduct of the proceedings of a court exercising the judicial power of the Commonwealth cannot be used to achieve a result that is not compatible with the implied Constitutional freedom of communication on government and political matter: Lange v Australian Broadcasting Corporation [1997] HCA 25 ; (1997) 189 CLR 520 at 567-568 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ; John Fairfax Publications Pty Ltd v Attorney-General (NSW) [2000] NSWCA 198 ; (2000) 181 ALR 694 at 703-707 [52] - [75] , 715-716 [114]-[119] per Spigelman CJ, 721 [157] per Priestley JA.
Case: Scott v Scott [1913] AC 417
Outcome: discussed
the principles of open justice require that all evidence before a court be open to the public gaze. This achieves the important objective of transparency in judicial decision-making. That is fundamental to the proper administration of justice and public confidence in the integrity and independence of the Courts and their decisions. But, it is an objective which, on occasion, must be balanced against the paramount duty of the Court to do justice. In Scott v Scott [1913] AC 417 at 437-438, Viscount Haldane LC explained these principles, which have been followed and accepted as fundamental in Australia since Dickason v Dickason [1913] HCA 77 ; (1913) 17 CLR 50 at 51 per Barton ACJ, Isaacs, Gavan Duffy, Powers and Rich JJ. One of the exceptions to which his Lordship referred was the protection of secret processes and confidential information.
Case: Australian Competition and Consumer Commission v Visy Industries Holdings Pty Limited (No 3) [2007] FCA 1617 
Outcome: cited
The Commissioner and the liquidator have tendered an agreed statement of facts. They agree that, for the purposes of this proceeding, the facts in this statement are not to be disputed: see s 191 of the Evidence Act 1995 (Cth). I note, however, that "I am not bound to accept facts merely because they have been agreed between the parties. Also I can draw inferences from such of the agreed facts as are accepted": Australian Competition and Consumer Commission v Visy Industries Holdings Pty Limited (No 3) [2007] FCA 1617 at [1] . The facts that follow, while drawn primarily from the agreed statement, are also drawn from other uncontroverted evidence relied on by the parties. 6 On 24 February 2006, John Brown ("Brown") commenced proceedings in the FMC (MLM2112 of 2006). On 8 August 2006, the Commissioner instituted proceedings in this Court (VID 884 of 2006) to wind up A Chaid in insolvency on the basis that it had failed to comply with a statutory demand for a debt due under s 8AAZH of the Act. 7 On 13 September 2006, the FMC ordered that A Chaid sell its hotel business and directed that: the proceeds ... be applied as follows: (a) First to pay all costs, commissions and expenses of the sale. (b) Secondly, to discharge the mortgage to Yarrmu Pty Ltd on the Leasehold of the Hotel. (c) Thirdly, as to any unsecured creditors of A Chaid ... as may be agreed in writing ... (d) The balance then remaining be invested in an interest bearing account in the names of the parties under control of their solicitors on the record.
Case: Brown v Brown &amp; Ors [2007] FMCAfam 793 
Outcome: cited
On 21 May 2007, BJT Legal undertook not to deal with the funds in any way until the issue was determined by the court and agreed to abide by any orders of the court made in consequence of that determination. On that basis, BJT Legal was not formally joined as a party to these proceedings. On 23 May 2007, the Commissioner filed for leave to intervene in the FMC proceedings and then lodged the current application on 13 August 2007. The Commissioner's application was transferred to this Court by order of the FMC dated 3 October 2007: Brown v Brown &amp; Ors [2007] FMCAfam 793. On 10 October 2007, the Commissioner filed an amended application, leave having been granted by the FMC on 3 October 2007. Finally, on 13 November 2007, the Commissioner withdrew the proof of debt. 15 Section 260- 5 of the Act, entitled "Commissioner may collect amounts from third party," provides that the Commissioner may give notice to a third party (here, BJT Legal) "if the third party owes or may later owe money" to a debtor (here, A Chaid) who owes a tax-related liability: ss 260- 5 (1) and 260- 5 (2). 16 Section 260- 5 (3) states that a third party is regarded as owing money if, among other things, the third party: (a) is an entity by whom the money is due or accruing to the debtor; or (b) holds the money for or on account of the debtor; or (c) holds the money on account of some other entity for payment to the debtor; or (d) has authority from some other entity to pay the money to the debtor.
Case: Champtaloup v Thomas [1976] 2 NSWLR 264
Outcome: cited
The unequivocal words or conduct referred to by Stephen J may be of two types. As noted by Mahoney JA in Champtaloup v Thomas [1976] 2 NSWLR 264 at 274-275 (quoted in Surfers Paradise at [32]): First, it may be exercised by a conscious act of election. The party having the right may actually determine on his election and, in so far as communication may be necessary ... communicate it to the other party, and an election is thereby made .... Second, the party may do some act which is of such a nature that, irrespective of his actual intention or determination, the law treats him as having exercised his election. This imputation of an election may occur even though the party does not subjectively know that he has the right to elect, or even where he does not intend to elect.
Case: Clyne v Deputy Commissioner of Taxation [1981] HCA 40 ; (1981) 150 CLR 1 
Outcome: cited
The parties agree that if the Notice is effective it creates a statutory charge in favour of the Commissioner and thus makes the Commissioner a secured creditor of A Chaid for purposes of the Corporations Act , entitled to priority of payment over unsecured creditors: Clyne v Deputy Commissioner of Taxation [1981] HCA 40 ; (1981) 150 CLR 1 at 17-18 (per Mason J) and 26-27 (per Brennan J); Goodin v Commissioner of Taxation (2002) 169 FLR 282 at 289; Commissioner of Taxation v Donnelly [1989] FCA 399 ; (1989) 25 FCR 432 at 436 (per Lockhart J); Macquarie Health Corp Ltd v Commissioner of Taxation [1999] FCA 1819 ; (1999) 96 FCR 238 , 255-271; Goodger v Ayre (1988) 88 FLR 188 at 191-192.
Case: Commissioner of Taxation v Donnelly [1989] FCA 399 ; (1989) 25 FCR 432 
Outcome: cited
The parties agree that if the Notice is effective it creates a statutory charge in favour of the Commissioner and thus makes the Commissioner a secured creditor of A Chaid for purposes of the Corporations Act , entitled to priority of payment over unsecured creditors: Clyne v Deputy Commissioner of Taxation [1981] HCA 40 ; (1981) 150 CLR 1 at 17-18 (per Mason J) and 26-27 (per Brennan J); Goodin v Commissioner of Taxation (2002) 169 FLR 282 at 289; Commissioner of Taxation v Donnelly [1989] FCA 399 ; (1989) 25 FCR 432 at 436 (per Lockhart J); Macquarie Health Corp Ltd v Commissioner of Taxation [1999] FCA 1819 ; (1999) 96 FCR 238 , 255-271; Goodger v Ayre (1988) 88 FLR 188 at 191-192.
Case: Commissioner of Taxation v Macquarie Health Corp (1998) 88 FCR 451 
Outcome: followed
Emmett J agreed that a winding-up order could not defeat a prior notice under s 218 of the 1936 Act in Commissioner of Taxation v Macquarie Health Corp (1998) 88 FCR 451 at 469. His Honour said: The only consideration is whether s 468 of the [Corporations Act] operates to prevent effect being given to the words of s 218 themselves. It follows from Clyne's case and Donnelly's case that the winding up of the Taxpayer did not affect any rights which had arisen in favour of the Commissioner by the operation of s 218 upon service of the notices. 31 In this case, the Notice operated against the property of A Chaid no later than 20 October 2006 (the date of its receipt by BJT Legal), and that, of course, was before the 26 October 2006 winding-up orders. Accordingly, the provisions of s 468 do not operate to void or otherwise vitiate the effectiveness of the previously issued Notice: Commissioner of Taxation v Macquarie Health Corp (1998) 88 FCR 451 at 471. As Emmett J said, " I consider that the Liquidator's contention confused the right in property with the remedy. A company taxpayer remains liable in respect of the tax which is the subject of a notice of assessment even after a winding-up order is made ." 32 Secondly, not only does s 468 not affect the efficacy of the Notice, but it also does not bar BJT Legal or the liquidator from complying with the Notice and paying the money. As noted, s 468(1) bars the non-exempt dispositions of company property: Commissioner of Taxation v Macquarie Health Corp (1998) 88 FCR 451 at 472. As Emmett J said, " [t]here is no doubt that the effect of winding up and of sequestration is that there is a restriction imposed on the capacity of a creditor to enforce payment of a debt without the leave of the Court ." However, s 468(2)(a) provides that a disposition by the liquidator is exempt if made pursuant to a power conferred on him by the Corporations Act . Section 477 in turn gives the liquidator broad powers to, inter alia: (1) make arrangements with creditors: s 477(1)(c) ; and (2) "sell or otherwise dispose of, in any manner, all or any part of the property of the company": s 477(2)(c). 33 Moreover, with respect to BJT Legal's position, s 260- 15 of the Act provides: An amount that the third party pays to the Commissioner under this Subdivision is taken to have been authorised by: (a) the debtor; and (b) any other person who is entitled to all or a part of the amount; and the third party is indemnified for the payment. 34 In short, the liquidator can point to nothing in the tax legislation or the Corporations Act that makes the Notice ineffective or otherwise prevents compliance with it.