mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Din v Minister for Immigration and Multicultural Affairs (1997) 147 ALR 673
Outcome: distinguished
Two authorities were principally relied upon, Din v Minister for Immigration and Multicultural Affairs (1997) 147 ALR 673 (Wilcox J) and passages in the dissenting judgment of Mason J (as his Honour then was) in O'Reilly's Case, supra. Din's Case though was determined on a basis not relied upon for Mr Pattenden i.e. that the nature of the statutory power and administrative necessity were not such as to make it impractical for decisions personally to be made by the Minister and his appointed delegates. The dissent of Mason J in O'Reilly's Case was influenced by similar considerations. 46 The authorities relied upon do not directly support the submission, which is not to say that it lacks merit. The essential point advanced was that, in permitting a decision by an authorised officer to make a DPO in the name of the delegate, the law did not thereby allow the authorised officer to give a blanket authority to an unauthorised officer to affix, at some uncertain time in the future, the signature of the delegate to a DPO in respect of whatever the total tax liability of the recipient might then be and irrespective of whatever other changes may have occurred in the interval. 47 Paragraph 14S(1)(a) uses the indefinite article to qualify "tax liability". "Tax liability" is defined by s 2 of the TAA to mean "a liability to the Commonwealth arising under, or by virtue of, a taxation law". In turn, s 2 defines "taxation law" by reference to the definition of that term in the Income Tax Assessment Act 1997 (Cth) (ITAA97). Section 995.1 of the ITAA97 provides: "taxation law" means: (a) an Act of which the Commissioner has the general administration (including a part of an Act to the extent to which the Commissioner has the general administration of the Act); or (b) regulations under such an Act (including such a part of an Act).
Case: Edelsten v Commissioner of Taxation (1989) 85 ALR 226
Outcome: considered
Having reflected on the language employed in s 14S(1)(b) of the TAA and on what was said of that provision by Young J in Dalco v Commissioner of Taxation (1987) 19 ATR 443 at 447-448 (later endorsed by Einfeld J in Edelsten v Commissioner of Taxation (1989) 85 ALR 226 at 230) and by Pincus J (as his Honour then was) in Skase v Commissioner of Taxation [1991] FCA 226 ; (1991) 32 FCR 206 , at 209 and 211, Jessup J in Troughton v Deputy Commissioner of Taxation (2008) 166 FCR 9 at 17, [22] [23] recently offered the following summary of how that provision falls to be construed: 22 It follows that s 14S(1)(b) should be read not literally, but as though it referred to a belief by the Commissioner (on reasonable grounds) that it was desirable that the person not leave Australia without discharging the tax liability or making the arrangements there referred to. Thus it is not to be taken as a given that, in every case, the departure of the person from Australia will make it unlikely, or at least less likely, that the tax liability will be discharged, or that the ability of the Commissioner to recover the tax will be impaired. These are things which must be considered by the Commissioner in every case. The purpose of s 14S, and accordingly a central purpose of Part IVA , is not the prevention of persons (owing tax) from leaving Australia simpliciter: it is the prevention of such persons from leaving Australia where, in the Commissioner's belief reasonably arrived at, the recovery of tax would or might thereby be impaired. 23 In that result, at least so far as revealed by s 14S, the general scope and objects of Part IVA of the Administration Act are as contended for by both sides in the present case. As contended for by the Commissioner, they are the protection of the revenue. As contended for by the applicant, they are the prevention of persons (owing tax) from leaving Australia where that would affect the recoverability thereof.
Case: O'Reilly v State Bank of Victoria Commissioners [1983] HCA 47 ; (1982-1983) 153 CLR 1
Outcome: considered
In terms of Australian jurisprudence, the lawfulness in particular circumstances of a practice within public administration of delegates of a responsible Minister or permanent head or equivalent such as the Commissioner authorising subordinates to exercise delegated powers in their name finds recognition at ultimate appellate level in O'Reilly v State Bank of Victoria Commissioners [1983] HCA 47 ; (1982-1983) 153 CLR 1 at 12-14 per Gibbs CJ, Murphy J agreeing in this regard and at 30-33 per Wilson J. It is also the subject of an influential advisory opinion given by Brennan J in his Honour's then capacity as President of the Administrative Appeals Tribunal in Re Reference under Ombudsman Act s 11 (1979) 2 ALD 86. These, in turn, give local recognition to a principle of public law in the United Kingdom in relation to the administration of large Departments of State which has come to be known as "the Carltona principle", so named for a leading authority on the subject in that country, Carltona Ltd v Commissioners of Works [1943] 2 All E R 560. These and other authorities on the subject are helpfully collected and discussed in Aronson, Dyer and Groves, Judicial Review of Administrative Action , 3rd Edition, at pp 310-318.
Case: Poletti v Commissioner of Taxation (1994) 52 FCR 154
Outcome: applied
Though termed an "appeal", a proceeding under s 14V of the TAA either in this Court or a State or Territory Supreme Court, each of which is concurrently invested with Federal jurisdiction for this purpose, is a proceeding in the original jurisdiction. Features of such an appeal were considered by the Full Court in Poletti v Commissioner of Taxation (1994) 52 FCR 154 (Poletti's Case). Poletti's Case remains the only appellate authority in relation to such appeals. Not all of the decisions in the exercise of original jurisdiction which preceded Poletti's Case are readily reconcilable with that case or each other in relation to the nature of an appeal under s 14V. 8 The following propositions emerge from Poletti's Case in relation to this type of "appeal": (a) the appeal is not a hearing de novo , which means that there is no retrial of all the issues and what the Commissioner considered and did in making the DPO decision is not irrelevant (at 160); (b) neither is an appeal against the making of a DPO confined to a question of law in the way in which is an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (at 160); (c) nor is the appeal one confined to administrative law error grounds in a way in which would be a challenge under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (at 160); (d) administrative law error grounds or a question of law may nonetheless permissibly be advanced on an appeal which, to this extent, overlaps with a judicial review proceeding (at 160); (e) it is for an appellant to make good the challenge; no onus of proof lies on the Commissioner (at 160-161); (f) the documentary material before the Commissioner at the time when the decision was made should be produced by him to the Court (at 161); (g) other material then in existence, be it on the Commissioner's files or otherwise, is relevant and can be produced to the Court to enable the Court to decide whether the belief of the Commissioner was held on reasonable grounds (at 162); (h) material which comes to light after the making of the DPO decision and which did not exist at that time is of doubtful relevance (at 162). 9 In Poletti's Case at 160, the Full Court considered that an appeal against the making of a DPO involves the determination by the Court of three principal questions (or such one or more of them as are in issue in the appeal): (a) whether the person is subject to a tax liability; (b) whether the Commissioner held the belief of which s 14S(1)(b) speaks; and (c) whether reasonable grounds existed for the formation by the Commissioner of the requisite belief? There questions provide a convenient framework within which to commence consideration of the merits of this appeal.
Case: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1
Outcome: cited
Even assuming that a "residual discretion" for the Court existed, Mr Pattenden's reliance on another part of the Receivables Policy (Exhibit 5 Part B, section 28 of the Policy) directed to the subject of "Recovering Disputed Debts", which was said to give rise to "legitimate expectations" (a term the use of which in administrative law is hardly to be encouraged: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1 at [81] [83] per McHugh and Gummow JJ, at [121] per Hayne J and at [140] [150] per Callinan J) which were not honoured by the Commissioner in making the DPO was doomed to fail at the outset. That part of the policy is patently not relevant to the making of a DPO. 119 Given the answers reached in respect of the questions derived from Poletti's Case, it is unnecessary to devote any further attention to the "residual discretion" submission. 120 The appeal should be allowed. The departure prohibition order of 21 May 2008 should be set aside. The Commissioner should pay Mr Pattenden's costs. I certify that the preceding one hundred and twenty (120) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 24 October 2008 Counsel for the Applicant: Mr M Robertson Solicitor for the Applicant: Small Myers Hughes Lawyers Counsel for the Respondent: Mr P Bickford Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 24 - 25 July 2008 and 11 - 12 August 2008 Date of Judgment: 24 October 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1590.html
Case: Re Reference under Ombudsman Act s 11 (1979) 2 ALD 86
Outcome: considered
In terms of Australian jurisprudence, the lawfulness in particular circumstances of a practice within public administration of delegates of a responsible Minister or permanent head or equivalent such as the Commissioner authorising subordinates to exercise delegated powers in their name finds recognition at ultimate appellate level in O'Reilly v State Bank of Victoria Commissioners [1983] HCA 47 ; (1982-1983) 153 CLR 1 at 12-14 per Gibbs CJ, Murphy J agreeing in this regard and at 30-33 per Wilson J. It is also the subject of an influential advisory opinion given by Brennan J in his Honour's then capacity as President of the Administrative Appeals Tribunal in Re Reference under Ombudsman Act s 11 (1979) 2 ALD 86. These, in turn, give local recognition to a principle of public law in the United Kingdom in relation to the administration of large Departments of State which has come to be known as "the Carltona principle", so named for a leading authority on the subject in that country, Carltona Ltd v Commissioners of Works [1943] 2 All E R 560. These and other authorities on the subject are helpfully collected and discussed in Aronson, Dyer and Groves, Judicial Review of Administrative Action , 3rd Edition, at pp 310-318.
Case: Re Scottish Loan &amp; Finance Co Ltd (1944) 44 SR (NSW) 461
Outcome: considered
Upon the production and tender of the authenticated copies of the amended and other assessments, that Mr Pattenden was subject to a taxation liability became a given in this appeal. Section 177 of the ITAA36 operated "to change what would otherwise be the operation of the relevant laws of evidence": Commissioner of Taxation v Futuris Corporation Ltd [2008] HCA 32 ; (2008) 82 ALJR 1177 at 1191, [65] . In these circumstances and to adapt, in light of subsequent legislative changes to the forums in which taxation appeals or reviews are heard, language employed by Lee J of the New South Wales Supreme Court in 1985 in Winter v Commissioner of Taxation (1985) 16 ATR 977 at 981, one of the first appeals of the present kind, it is not for a court entertaining an appeal against a DPO to usurp the function of the Federal Court or the Administrative Appeals Tribunal when deciding an appeal against or, as the case may be, when reviewing, an objection decision in respect of an assessment. There was, even in 1985, nothing new in such a conclusion. A like position prevailed by virtue of the effect of s 177(1) of the ITAA36 in respect of recovery related proceedings arising under the earlier regime for the restriction of the departure from Australia of taxation debtors: Re Scottish Loan &amp; Finance Co Ltd (1944) 44 SR (NSW) 461 at 466-467 (Nicholas CJ in Eq).
Case: Skase v Commissioner of Taxation [1991] FCA 226 ; (1991) 32 FCR 206
Outcome: applied
Having reflected on the language employed in s 14S(1)(b) of the TAA and on what was said of that provision by Young J in Dalco v Commissioner of Taxation (1987) 19 ATR 443 at 447-448 (later endorsed by Einfeld J in Edelsten v Commissioner of Taxation (1989) 85 ALR 226 at 230) and by Pincus J (as his Honour then was) in Skase v Commissioner of Taxation [1991] FCA 226 ; (1991) 32 FCR 206 , at 209 and 211, Jessup J in Troughton v Deputy Commissioner of Taxation (2008) 166 FCR 9 at 17, [22] [23] recently offered the following summary of how that provision falls to be construed: 22 It follows that s 14S(1)(b) should be read not literally, but as though it referred to a belief by the Commissioner (on reasonable grounds) that it was desirable that the person not leave Australia without discharging the tax liability or making the arrangements there referred to. Thus it is not to be taken as a given that, in every case, the departure of the person from Australia will make it unlikely, or at least less likely, that the tax liability will be discharged, or that the ability of the Commissioner to recover the tax will be impaired. These are things which must be considered by the Commissioner in every case. The purpose of s 14S, and accordingly a central purpose of Part IVA , is not the prevention of persons (owing tax) from leaving Australia simpliciter: it is the prevention of such persons from leaving Australia where, in the Commissioner's belief reasonably arrived at, the recovery of tax would or might thereby be impaired. 23 In that result, at least so far as revealed by s 14S, the general scope and objects of Part IVA of the Administration Act are as contended for by both sides in the present case. As contended for by the Commissioner, they are the protection of the revenue. As contended for by the applicant, they are the prevention of persons (owing tax) from leaving Australia where that would affect the recoverability thereof.
Case: Troughton v Deputy Commissioner of Taxation (2008) 166 FCR 9
Outcome: applied
Having reflected on the language employed in s 14S(1)(b) of the TAA and on what was said of that provision by Young J in Dalco v Commissioner of Taxation (1987) 19 ATR 443 at 447-448 (later endorsed by Einfeld J in Edelsten v Commissioner of Taxation (1989) 85 ALR 226 at 230) and by Pincus J (as his Honour then was) in Skase v Commissioner of Taxation [1991] FCA 226 ; (1991) 32 FCR 206 , at 209 and 211, Jessup J in Troughton v Deputy Commissioner of Taxation (2008) 166 FCR 9 at 17, [22] [23] recently offered the following summary of how that provision falls to be construed: 22 It follows that s 14S(1)(b) should be read not literally, but as though it referred to a belief by the Commissioner (on reasonable grounds) that it was desirable that the person not leave Australia without discharging the tax liability or making the arrangements there referred to. Thus it is not to be taken as a given that, in every case, the departure of the person from Australia will make it unlikely, or at least less likely, that the tax liability will be discharged, or that the ability of the Commissioner to recover the tax will be impaired. These are things which must be considered by the Commissioner in every case. The purpose of s 14S, and accordingly a central purpose of Part IVA , is not the prevention of persons (owing tax) from leaving Australia simpliciter: it is the prevention of such persons from leaving Australia where, in the Commissioner's belief reasonably arrived at, the recovery of tax would or might thereby be impaired. 23 In that result, at least so far as revealed by s 14S, the general scope and objects of Part IVA of the Administration Act are as contended for by both sides in the present case. As contended for by the Commissioner, they are the protection of the revenue. As contended for by the applicant, they are the prevention of persons (owing tax) from leaving Australia where that would affect the recoverability thereof.
Case: Winter v Commissioner of Taxation (1985) 16 ATR 977
Outcome: applied
Upon the production and tender of the authenticated copies of the amended and other assessments, that Mr Pattenden was subject to a taxation liability became a given in this appeal. Section 177 of the ITAA36 operated "to change what would otherwise be the operation of the relevant laws of evidence": Commissioner of Taxation v Futuris Corporation Ltd [2008] HCA 32 ; (2008) 82 ALJR 1177 at 1191, [65] . In these circumstances and to adapt, in light of subsequent legislative changes to the forums in which taxation appeals or reviews are heard, language employed by Lee J of the New South Wales Supreme Court in 1985 in Winter v Commissioner of Taxation (1985) 16 ATR 977 at 981, one of the first appeals of the present kind, it is not for a court entertaining an appeal against a DPO to usurp the function of the Federal Court or the Administrative Appeals Tribunal when deciding an appeal against or, as the case may be, when reviewing, an objection decision in respect of an assessment. There was, even in 1985, nothing new in such a conclusion. A like position prevailed by virtue of the effect of s 177(1) of the ITAA36 in respect of recovery related proceedings arising under the earlier regime for the restriction of the departure from Australia of taxation debtors: Re Scottish Loan &amp; Finance Co Ltd (1944) 44 SR (NSW) 461 at 466-467 (Nicholas CJ in Eq).
Case: Woollett v Minister of Agriculture and Fisheries [1955] 1 QB 103
Outcome: considered
There is authority that the ability of a subordinate to exercise in the name of a Minister of State a statutory power conferred on the Minister need not be found in a formal instrument of authority but may permissibly be found in departmental practice: Woollett v Minister of Agriculture and Fisheries [1955] 1 QB 103, at 125 per Jenkins LJ and at 136 per Morris LJ. In this case the delegate has executed a formal instrument of authority. That instrument carefully delineates the extent to which particular subordinates are entitled to exercise delegated power in the name of the delegate. It is necessarily to be inferred that the instrument evidences a considered decision by a Deputy Commissioner of Taxation as to which subordinates, having regard to the knowledge and experience required to hold particular subordinate positions, ought responsibly to be given authority to make a particular type of decision in the name of that Deputy Commissioner. The instrument of authorisation gives a desirable certainty of authority to subordinates, as opposed to consigning such matters to informal practice and to the uncertainty of whether that practice would be regarded as acceptable having regard to the nature of the power and the level at which authority was exercised. The deliberate exclusion in the instrument of persons of lesser seniority than Mr Benson from having authority to decide on behalf of the delegate to issue a DPO tells against such persons possessing any authority by informal practice.
Case: Gattellaro v Westpac Banking Corporation [2004] HCA 6 ; (2004) 78 ALJR 394
Outcome: cited
The High Court in Gattellaro v Westpac Banking Corporation [2004] HCA 6 ; (2004) 78 ALJR 394 said (at [17]): In New South Wales there would appear to be no room for the operation of the common law doctrine of judicial notice, strictly so called, since the enactment of the Evidence Act 1995 (NSW), s 144. That observation was made in a case in which the question whether s 144 of the New South Wales Act displaced the common law was not before the Court. A majority of the Court of Appeal of New South Wales had taken judicial notice of the fact that banking institutions such as Westpac used standard forms of guarantee. The High Court held that to be erroneous. The error was not defended before the High Court and nothing turned on any difference between the common law and s 144. 115 The relationship between s 144 and the common law was not agitated in these proceedings. I am content to act upon the basis that the section states the applicable law, authorising this Court to take judicial notice of matters of common general knowledge. 116 The Court is invited to take judicial notice of the disadvantage of women practitioners in the legal profession as a matter of "common knowledge ... generally" within the meaning of s 144(1)(a). VWL, in its written submissions, identified the social fact for which it contended. The Commissioner was thereby on notice and not unfairly prejudiced were the Court to act upon the submission. The social fact propounded was the historical and persisting disadvantage of women in relation to their participation and career advancement within the legal profession. At that level of generality there was no dispute. I am prepared to take judicial notice of it. It informs a consideration of whether the VWL was "established for community service purposes" or otherwise met the public benefit requirement of the common law understanding of a charitable institution. It is not, however, critical to the characterisation of the association for the purposes of the ITAA. Characterisation depends primarily upon the objects and, to a degree, upon the activities of VWL in the relevant years of income.
Case: Central Bayside General Practice Association Ltd v Commissioner of State Revenue [2006] HCA 43 ; (2006) 229 ALR 1
Outcome: cited
The High Court recently reaffirmed the application of the technical meaning to the word "charity" and its derivatives used in statutes unless a contrary intention is evident. In Central Bayside General Practice Association Ltd v Commissioner of State Revenue [2006] HCA 43 ; (2006) 229 ALR 1 , Gleeson CJ, Heydon and Crennan JJ referred, in a footnote, to the technical legal sense of "charitable" as that defined by Lord Macnaghten in Pemsel [1891] AC 531 "by reference to the spirit and intendment of the preamble to the Statute of Charitable Uses Act 1601 (UK)". Their Honours referred also to "... the general rule that, the word "charitable" being a word that has a technical legal meaning, when it is used in a statute it should be understood in its legal sense unless a contrary intention appears". They noted that the general rule has been accepted as the law of Australia at least since the decision of the Privy Council in Chesterman v Federal Commissioner of Taxation [1925] UKPCHCA 2 ; (1925) 37 CLR 317. They further said (at [18] fn 6): The word is commonly used in statutes. It is reasonable to assume that parliamentary counsel, taxpayers, revenue authorities, settlors, testators and others have acted on the faith of an understanding that the general rule applies. The Full Court of the Federal Court in Commissioner of Taxation v Word Investments Ltd (2007) 164 FCR 194 at [8] accepted, and there was no dispute before it, that the word "charitable" in the relevant provisions of the ITAA 1997 bears its technical legal meaning. It relied upon Bayside [2006] HCA 43 ; 229 ALR 1 for that purpose.
Case: Bowman v Secular Society Ltd [1917] AC 406
Outcome: cited
Charitable purposes generally do not include political purposes. Dal Pont observes that the limitation is largely a product of 20 th century jurisprudence emanating principally from the dictum of Lord Parker in Bowman v Secular Society Ltd [1917] AC 406 at 442: a trust for the attainment of political objects has always been held invalid, ... because the Court has no means of judging whether or not a proposed change in the law will or will not be for the public benefit, and therefore cannot say that a gift to secure the change is a charitable gift.