mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Electricity Supply Association of Australia Ltd v Australian Competition and Consumer Commission (2001) 113 FCA 230
Outcome: cited
It seems to me that what follows from these observations is that the challenged decision-maker must be shown to have reached an operative resolution or determination as the emanation of a deliberative process, having the character or quality of finality. This view is consistent with the approach adopted, on this question, in Salerno v National Crime Authority (1997) 75 FCR 133 at 138 per von Doussa, Drummond and Mansfield JJ. See also Electricity Supply Association of Australia Ltd v Australian Competition and Consumer Commission (2001) 113 FCA 230 , per Finn J at [65] and [66]. I adhere to the views I expressed in reviewing the authorities in Guss v Commissioner of Taxation (2006) FCAFC 88 ; (2006) 152 FCR 88 at [70] to [101].
Case: Guss v Commissioner of Taxation (2006) FCAFC 88 ; (2006) 152 FCR 88
Outcome: cited
It seems to me that what follows from these observations is that the challenged decision-maker must be shown to have reached an operative resolution or determination as the emanation of a deliberative process, having the character or quality of finality. This view is consistent with the approach adopted, on this question, in Salerno v National Crime Authority (1997) 75 FCR 133 at 138 per von Doussa, Drummond and Mansfield JJ. See also Electricity Supply Association of Australia Ltd v Australian Competition and Consumer Commission (2001) 113 FCA 230 , per Finn J at [65] and [66]. I adhere to the views I expressed in reviewing the authorities in Guss v Commissioner of Taxation (2006) FCAFC 88 ; (2006) 152 FCR 88 at [70] to [101].
Case: Hutchins v Deputy Commissioner of Taxation (1996) 136 ALR 153
Outcome: cited
See also on the issue of impliedly required decisions, Hutchins v Deputy Commissioner of Taxation (1996) 136 ALR 153 per Black CJ at 156. 69 Although it is clear that a decision to issue the warrant is susceptible of review for the purposes of the A D J R Act as the decision is expressly authorised by s 3E of the Crimes Act and affects legal rights and obligations of the applicants, the steps taken by Mr Bell neither find their express authority in the section nor materially affect the rights and obligations of the applicants. 70 Accordingly, the decision of Mr Bell is not susceptible of review for the purposes of the A D J R Act.
Case: Industrial Equity Ltd v Deputy Commissioner of Taxation [1990] HCA 46 ; (1990) 170 CLR 649
Outcome: cited
It can be seen from these provisions that the powers of the Commissioner are wide-ranging. They comprehend an administrative power both under the ITTA 36 and the TAA to examine the conduct of a taxpayer to determine whether a taxpayer has, according to law, accurately identified the taxable income upon which tax is levied. In undertaking that examination or investigation for the purposes of the ITAA 36, ITAA 97 or the TAA, the Commissioner may exercise express powers such as those contained in ss 263 and 264 . The general administration of the legislation also comprehends a power to examine the conduct of a taxpayer not just to determine whether an assessment or an amended assessment issued by the Commissioner in reliance upon self assessment details supplied by the taxpayer is, in the light of proper analysis or audit (see Industrial Equity Ltd v Deputy Commissioner of Taxation [1990] HCA 46 ; (1990) 170 CLR 649 per Mason CJ, Brennan, Deane, Dawson, Toohey and McHugh JJ), an accurate assessment of the taxpayer's liability to tax for the purposes of Part III but also whether the taxpayer has engaged in conduct which constitutes the commission of an offence against a tax law or a tax-related offence including offences against the Criminal Code and in particular, ss 134.4, 134.2, 135.1, 135.2 and 135.4 being an offence that relates to a liability to the Commonwealth arising under or by virtue of, a tax law.
Case: Seven Network v News Ltd (No 5) (2005) 216 ALR 147
Outcome: cited
The Federal Court Rules ('FCR'), O 33 r 12, provide as follows: (1) Where a party to any proceedings serves on another party notice ... requiring the party served to produce at any trial or hearing in the proceedings, or before any Judge ... having authority to take evidence in the proceedings any document or thing for the purpose of evidence and the document or thing is in the possession, custody or power of the party served, the party served shall, unless the Court otherwise orders, produce the document or thing in accordance with the notice, without the need for any subpoena for production. (2) ...'. A notice to produce served pursuant to O 33 r 12, despite the ambiguous form of the rule, has the same coercive effect as a subpoena duces tecum : Seven Network Ltd v News Ltd (No 5) (2005) 216 ALR 147, at [6], and cases cited there. 6 It is now established that lack of apparent relevance is a ground for setting aside a subpoena or notice to produce: Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 90 at 101-103, per Beaumont J. In an earlier interlocutory judgment delivered in these proceedings, I said that the test of apparent relevance is whether the documents are 'reasonably likely to add, in the end, in some way or other, to the relevant evidence in the case': Seven Network Ltd v News Ltd (No 5) , at [10], citing Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921 at 927, per Waddell J. Neither party disputes that this is the appropriate test.
Case: Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 90
Outcome: cited
It is now established that lack of apparent relevance is a ground for setting aside a subpoena or notice to produce: Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 90 at 101-103, per Beaumont J. In an earlier interlocutory judgment delivered in these proceedings, I said that the test of apparent relevance is whether the documents are 'reasonably likely to add, in the end, in some way or other, to the relevant evidence in the case': Seven Network Ltd v News Ltd (No 5) , at [10], citing Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921 at 927, per Waddell J. Neither party disputes that this is the appropriate test.
Case: Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921
Outcome: cited
It is now established that lack of apparent relevance is a ground for setting aside a subpoena or notice to produce: Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 90 at 101-103, per Beaumont J. In an earlier interlocutory judgment delivered in these proceedings, I said that the test of apparent relevance is whether the documents are 'reasonably likely to add, in the end, in some way or other, to the relevant evidence in the case': Seven Network Ltd v News Ltd (No 5) , at [10], citing Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921 at 927, per Waddell J. Neither party disputes that this is the appropriate test.
Case: Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151 ; (2004) 139 FCR 292
Outcome: discussed
I am also satisfied that any duty which the Minister may have been under to make inquiries, such as upon receiving the applicant's initial letter (which appears to be how the Minister first became aware of applicant's children), was satisfied. It is unnecessary to decide whether in fact any such duty arose. It may be noted however that Boyes , being the case relied on by the Minister in this respect, did not establish that there never could be such a duty. In that case, Kenny J found that no such duty arose on the facts of the case. In Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151 ; (2004) 139 FCR 292 at [82] to [83], a case referred to by Kenny J in Boyes , the Court appeared to accept that certain factual situations can give rise to a duty to make further inquiries in relation to decisions by the Minister under s 501(2) of the Act , citing with approval the comments of McHugh J in Teoh (at 321) regarding the categories of circumstances which may give rise to such a duty. However, in the present case there is no basis for the contention that any such duty the Minister may have been under was not fulfilled. The applicant did not identify any particular inquiries which the Department or Minister had failed to make and which he said should have been made. The Department in fact took a number of steps to inform itself of the circumstances concerning the children, including by requesting the applicant's welfare officer to discuss matters affecting the children with the applicant and provide the Department with further information. The Department also liaised directly with DOCS and provided relevant documents to the applicant for comment.
Case: Australian Competition and Consumer Commission v ABB Transmissions and Distribution Ltd (No 3) [2002] FCA 609
Outcome: referred to
In Australian Competition and Consumer Commission v ABB Transmissions and Distribution Ltd (No 3) [2002] FCA 609 , Finkelstein J said (at [7]): 'The question that I must resolve is what principle should be applied when deciding to allow inspection in cases where leave is required. In giving the answer I propose to confine myself to those cases where a non-party seeks access to material which has been relied upon by the judge. In such a case, I have no doubt that the proper approach is that access should be allowed unless the interests of justice require a different course. It is only by adopting this approach that, in a practical sense, the principle of open justice will be preserved. Put differently, in my view there is a strong presumption in favour of allowing any member of the public who wishes to do so to inspect any document or thing that is put into evidence. Inspection should only be refused in exceptional circumstances. I think that the position is fortiori when the material has been read by the judge in private and is not read out in court. If that material is not made available for inspection then the manner in which the case is being conducted will only be known to the parties. That is an unacceptable position.'
Case: Macquarie Radio Network Pty Ltd v Australian Broadcasting Authority [2002] FCA 1408
Outcome: referred to
This statement of approach has been referred to with approval in a number of cases: Macquarie Radio Network Pty Ltd v Australian Broadcasting Authority [2002] FCA 1408 ; Williams v Forgie [2003] FCA 991 ; Seven Network Ltd v News Ltd (No 9) [2005] FCA 1394 ; [2006] 225 ALR 256.
Case: Williams v Forgie [2003] FCA 991
Outcome: referred to
This statement of approach has been referred to with approval in a number of cases: Macquarie Radio Network Pty Ltd v Australian Broadcasting Authority [2002] FCA 1408 ; Williams v Forgie [2003] FCA 991 ; Seven Network Ltd v News Ltd (No 9) [2005] FCA 1394 ; [2006] 225 ALR 256.
Case: Seven Network Ltd v News Ltd (No 9) [2005] FCA 1394 ; (2006) 225 ALR 256
Outcome: referred to
This statement of approach has been referred to with approval in a number of cases: Macquarie Radio Network Pty Ltd v Australian Broadcasting Authority [2002] FCA 1408 ; Williams v Forgie [2003] FCA 991 ; Seven Network Ltd v News Ltd (No 9) [2005] FCA 1394 ; [2006] 225 ALR 256.
Case: Advanced Prosthetic Centre Pty Ltd v Appliance &amp; Limb Centre (Int) Pty Ltd (2002) 53 ATR 331
Outcome: distinguished
(16) The applicants relied on McLaurin v Federal Commissioner of Taxation [1961] HCA 9 ; (1961) 104 CLR 381 (" McLaurin "); Allsop v Federal Commissioner of Taxation [1965] HCA 48 ; (1965) 113 CLR 341 (" Allsop "); CSR Ltd v Federal Commissioner of Taxation (2000) 171 ALR 392 (" CSR ") (a decision affirmed by the Full Court of the Federal Court in Commissioner of Taxation v CSR Ltd [2000] FCA 1513 ; (2000) 104 FCR 44) and Advanced Prosthetic Centre Pty Ltd v Appliance &amp; Limb Centre (Int) Pty Ltd (2002) ATR 33 (" Advanced Prosthetic "). These cases were concerned with undissected lump sums paid in settlement of litigation. In all of them it was held, in substance, that where part of the lump sum was clearly received on capital account, it was not open to the Commissioner to bring to tax part of the lump sum as income. The questions that Part IIIA requires to be answered are, however, different. In particular, s 160ZD(4) expressly addresses the situation in which an undissected consideration relates in part only to the disposal of a particular asset. It requires that in these circumstances there must be a determination of "so much of that consideration as may reasonably be attributed to the disposal of the asset". 102 The applicants submit that the Apportionment Agreement was irrelevant. I agree. However, I do not accept their submission that the result in the present case is governed by McLaurin , Allsop , CSR and Advanced Prosthetic (discussed at [88] above), although these cases at least recognise the uncontroversial starting point that absent an apportionment by the parties of the Deed we cannot say that any particular part of the sum of $8,835,083 was paid for any particular asset. They were not cases involving the application of Part IIIA. The starting point of a Part IIIA inquiry is the identification of a "disposal" of an "asset", in each case as defined in that Part.
Case: Allsop v Federal Commissioner of Taxation [1965] HCA 48 ; (1965) 113 CLR 341
Outcome: distinguished
(16) The applicants relied on McLaurin v Federal Commissioner of Taxation [1961] HCA 9 ; (1961) 104 CLR 381 (" McLaurin "); Allsop v Federal Commissioner of Taxation [1965] HCA 48 ; (1965) 113 CLR 341 (" Allsop "); CSR Ltd v Federal Commissioner of Taxation (2000) 171 ALR 392 (" CSR ") (a decision affirmed by the Full Court of the Federal Court in Commissioner of Taxation v CSR Ltd [2000] FCA 1513 ; (2000) 104 FCR 44) and Advanced Prosthetic Centre Pty Ltd v Appliance &amp; Limb Centre (Int) Pty Ltd (2002) ATR 33 (" Advanced Prosthetic "). These cases were concerned with undissected lump sums paid in settlement of litigation. In all of them it was held, in substance, that where part of the lump sum was clearly received on capital account, it was not open to the Commissioner to bring to tax part of the lump sum as income. The questions that Part IIIA requires to be answered are, however, different. In particular, s 160ZD(4) expressly addresses the situation in which an undissected consideration relates in part only to the disposal of a particular asset. It requires that in these circumstances there must be a determination of "so much of that consideration as may reasonably be attributed to the disposal of the asset". 102 The applicants submit that the Apportionment Agreement was irrelevant. I agree. However, I do not accept their submission that the result in the present case is governed by McLaurin , Allsop , CSR and Advanced Prosthetic (discussed at [88] above), although these cases at least recognise the uncontroversial starting point that absent an apportionment by the parties of the Deed we cannot say that any particular part of the sum of $8,835,083 was paid for any particular asset. They were not cases involving the application of Part IIIA. The starting point of a Part IIIA inquiry is the identification of a "disposal" of an "asset", in each case as defined in that Part.
Case: Cranstoun v Federal Commissioner of Taxation (1984) 75 FLR 220
Outcome: cited
There was no error in the Tribunal's identification of the test of a sham. The Tribunal asked itself whether the Apportionment Agreement was intended to have the legal effect that it gave an appearance of having, or, to express the same idea differently, whether the parties took steps having the form of a legally effective transaction, which they intended should not have the legal consequences that such a transaction would have. This was the correct question to ask: see Cranstoun v Federal Commissioner of Taxation (1984) 75 FLR 220 at 227 228; Richard Walter Pty Ltd v Commissioner of Taxation (1996) 67 FCR 243 at 257 258; Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55 ; (2004) 211 ALR 101 at 111. The Tribunal supportably answered this question in the negative.
Case: CSR Ltd v Federal Commissioner of Taxation (2000) 171 ALR 392
Outcome: distinguished
(16) The applicants relied on McLaurin v Federal Commissioner of Taxation [1961] HCA 9 ; (1961) 104 CLR 381 (" McLaurin "); Allsop v Federal Commissioner of Taxation [1965] HCA 48 ; (1965) 113 CLR 341 (" Allsop "); CSR Ltd v Federal Commissioner of Taxation (2000) 171 ALR 392 (" CSR ") (a decision affirmed by the Full Court of the Federal Court in Commissioner of Taxation v CSR Ltd [2000] FCA 1513 ; (2000) 104 FCR 44) and Advanced Prosthetic Centre Pty Ltd v Appliance &amp; Limb Centre (Int) Pty Ltd (2002) ATR 33 (" Advanced Prosthetic "). These cases were concerned with undissected lump sums paid in settlement of litigation. In all of them it was held, in substance, that where part of the lump sum was clearly received on capital account, it was not open to the Commissioner to bring to tax part of the lump sum as income. The questions that Part IIIA requires to be answered are, however, different. In particular, s 160ZD(4) expressly addresses the situation in which an undissected consideration relates in part only to the disposal of a particular asset. It requires that in these circumstances there must be a determination of "so much of that consideration as may reasonably be attributed to the disposal of the asset". 102 The applicants submit that the Apportionment Agreement was irrelevant. I agree. However, I do not accept their submission that the result in the present case is governed by McLaurin , Allsop , CSR and Advanced Prosthetic (discussed at [88] above), although these cases at least recognise the uncontroversial starting point that absent an apportionment by the parties of the Deed we cannot say that any particular part of the sum of $8,835,083 was paid for any particular asset. They were not cases involving the application of Part IIIA. The starting point of a Part IIIA inquiry is the identification of a "disposal" of an "asset", in each case as defined in that Part.
Case: Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55 ; (2004) 211 ALR 101
Outcome: cited
There was no error in the Tribunal's identification of the test of a sham. The Tribunal asked itself whether the Apportionment Agreement was intended to have the legal effect that it gave an appearance of having, or, to express the same idea differently, whether the parties took steps having the form of a legally effective transaction, which they intended should not have the legal consequences that such a transaction would have. This was the correct question to ask: see Cranstoun v Federal Commissioner of Taxation (1984) 75 FLR 220 at 227 228; Richard Walter Pty Ltd v Commissioner of Taxation (1996) 67 FCR 243 at 257 258; Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55 ; (2004) 211 ALR 101 at 111. The Tribunal supportably answered this question in the negative.
Case: McLaurin v Federal Commissioner of Taxation [1961] HCA 9 ; (1961) 104 CLR 381
Outcome: distinguished
(16) The applicants relied on McLaurin v Federal Commissioner of Taxation [1961] HCA 9 ; (1961) 104 CLR 381 (" McLaurin "); Allsop v Federal Commissioner of Taxation [1965] HCA 48 ; (1965) 113 CLR 341 (" Allsop "); CSR Ltd v Federal Commissioner of Taxation (2000) 171 ALR 392 (" CSR ") (a decision affirmed by the Full Court of the Federal Court in Commissioner of Taxation v CSR Ltd [2000] FCA 1513 ; (2000) 104 FCR 44) and Advanced Prosthetic Centre Pty Ltd v Appliance &amp; Limb Centre (Int) Pty Ltd (2002) ATR 33 (" Advanced Prosthetic "). These cases were concerned with undissected lump sums paid in settlement of litigation. In all of them it was held, in substance, that where part of the lump sum was clearly received on capital account, it was not open to the Commissioner to bring to tax part of the lump sum as income. The questions that Part IIIA requires to be answered are, however, different. In particular, s 160ZD(4) expressly addresses the situation in which an undissected consideration relates in part only to the disposal of a particular asset. It requires that in these circumstances there must be a determination of "so much of that consideration as may reasonably be attributed to the disposal of the asset". 102 The applicants submit that the Apportionment Agreement was irrelevant. I agree. However, I do not accept their submission that the result in the present case is governed by McLaurin , Allsop , CSR and Advanced Prosthetic (discussed at [88] above), although these cases at least recognise the uncontroversial starting point that absent an apportionment by the parties of the Deed we cannot say that any particular part of the sum of $8,835,083 was paid for any particular asset. They were not cases involving the application of Part IIIA. The starting point of a Part IIIA inquiry is the identification of a "disposal" of an "asset", in each case as defined in that Part.
Case: Richard Walter Pty Ltd v Commissioner of Taxation (1996) 67 FCR 243
Outcome: cited
There was no error in the Tribunal's identification of the test of a sham. The Tribunal asked itself whether the Apportionment Agreement was intended to have the legal effect that it gave an appearance of having, or, to express the same idea differently, whether the parties took steps having the form of a legally effective transaction, which they intended should not have the legal consequences that such a transaction would have. This was the correct question to ask: see Cranstoun v Federal Commissioner of Taxation (1984) 75 FLR 220 at 227 228; Richard Walter Pty Ltd v Commissioner of Taxation (1996) 67 FCR 243 at 257 258; Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55 ; (2004) 211 ALR 101 at 111. The Tribunal supportably answered this question in the negative.
Case: NAVH v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] FMCA 1704
Outcome: affirmed
This is an application for leave to appeal from a judgment of Barnes FM of 31 October 2006: NAVH v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] FMCA 1704. The application before the Federal Magistrate sought judicial review of a decision of the Refugee Review Tribunal dated 30 June 2003 affirming a decision of a delegate of the Minister to refuse to grant a protection visa to the applicant. 2 The applicant is a citizen of Pakistan who arrived in Australia on 28 July 2001. On 20 May 2002 the applicant lodged an application for a protection visa with the department. On 25 July 2002 a delegate of the Minister refused the application and the applicant applied to the Tribunal for review. In his protection visa application the applicant claimed fear of persecution by reason of his political opinion. The applicant claimed his father had been carrying out activities against drug traffickers and was murdered by drug smugglers because of those activities. 3 The applicant claimed he would be persecuted in Pakistan because of his father's activities. The applicant further claimed he would be arrested because of his opposition to the military regime in Pakistan. In particular, the applicant claimed to be a member of the Pakhtoon Khwa Party and to have written articles against the dictatorial regime of General Musharaf. The applicant claimed he and his father were attacked by ICI members who had connections to drug smugglers.