mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Hillig as Administrator of Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales (No 2) [2006] FCA 1115
Outcome: referred to
native title determination application does not comply with s 61 of the NTA if it is clearly established that it is not made by a native title claim group. A native title claim group is a group consisting of all the persons who, according to their traditional laws and customs, had the common or group rights or interests comprising the particular native title claimed. These propositions follow from the provisions of ss 61(1) and (4), 251B and 253 of the NTA and have been stated in the cases: Risk v National Native Title Tribunal [2000] FCA 1589 at [60] - [61] per O'Loughlin J; Tilmouth v Northern Territory of Australia [2001] FCA 820 ; (2001) 109 FCR 240 (" Tilmouth ") at 241-242 [4] per O'Loughlin J; Landers v State of South Australia [2003] FCA 264 ; (2003) 128 FCR 495 (" Landers ") at 504 [33] per Mansfield J; Dieri People v State of South Australia [2003] FCA 187 ; (2003) 127 FCR 364 (" Dieri People ") at 377-378 [55]-[56] per Mansfield J; McKenzie at 223 [41] per Finn J; Hillig as Administrator of Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales (No 2) [2006] FCA 1115 (" Hillig ") at [60] per Bennett J; Harrington-Smith (on behalf of the Wongatha People) v Western Australia (No 9) [2007] FCA 31 ; (2007) 238 ALR 1 at 230-232 [1206] - [1217] per Lindgren J; Reid v State of South Australia [2007] FCA 1479 (" Reid ") at [27] per Finn J; Kite v State of South Australia [2007] FCA 1662 (" Kite ") at [21]-[22] per Finn J. The propositions have been applied most commonly in circumstances where it is clear that the claimant group is a sub-group or sub-set or part of a native title claim group. Cases such as Tilmouth , Landers , Dieri People , McKenzie and Reid are all cases in which it was clear that the claim group was not a native title claim group. The cases also make it clear that caution needs to be exercised before concluding on a strike-out application that a claim group is a sub-group, sub-set or part of a native title claim group: Colbung v The State of Western Australia [2003] FCA 774 at [23] - [26] per Finn J; McKenzie at 223 [41] per Finn J; Hillig at [60] per Bennett J; Reid at [28] per Finn J; and Kite at [22] per Finn J. For example, it may be that a sub-group of a community sharing traditional laws and customs alone possesses rights and interests in a particular area and that sub-group may itself constitute a native title claim group: Hillig at [60] per Bennett J (see also the obiter observations of Wilcox J in Bodney v State of Western Australia [2003] FCA 890 at [41] ; Perry M and Lloyd S, Australian Native Title Law (Lawbook Co, 2003) [3.130].
Case: Kite v State of South Australia [2007] FCA 1662
Outcome: referred to
native title determination application does not comply with s 61 of the NTA if it is clearly established that it is not made by a native title claim group. A native title claim group is a group consisting of all the persons who, according to their traditional laws and customs, had the common or group rights or interests comprising the particular native title claimed. These propositions follow from the provisions of ss 61(1) and (4), 251B and 253 of the NTA and have been stated in the cases: Risk v National Native Title Tribunal [2000] FCA 1589 at [60] - [61] per O'Loughlin J; Tilmouth v Northern Territory of Australia [2001] FCA 820 ; (2001) 109 FCR 240 (" Tilmouth ") at 241-242 [4] per O'Loughlin J; Landers v State of South Australia [2003] FCA 264 ; (2003) 128 FCR 495 (" Landers ") at 504 [33] per Mansfield J; Dieri People v State of South Australia [2003] FCA 187 ; (2003) 127 FCR 364 (" Dieri People ") at 377-378 [55]-[56] per Mansfield J; McKenzie at 223 [41] per Finn J; Hillig as Administrator of Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales (No 2) [2006] FCA 1115 (" Hillig ") at [60] per Bennett J; Harrington-Smith (on behalf of the Wongatha People) v Western Australia (No 9) [2007] FCA 31 ; (2007) 238 ALR 1 at 230-232 [1206] - [1217] per Lindgren J; Reid v State of South Australia [2007] FCA 1479 (" Reid ") at [27] per Finn J; Kite v State of South Australia [2007] FCA 1662 (" Kite ") at [21]-[22] per Finn J. The propositions have been applied most commonly in circumstances where it is clear that the claimant group is a sub-group or sub-set or part of a native title claim group. Cases such as Tilmouth , Landers , Dieri People , McKenzie and Reid are all cases in which it was clear that the claim group was not a native title claim group. The cases also make it clear that caution needs to be exercised before concluding on a strike-out application that a claim group is a sub-group, sub-set or part of a native title claim group: Colbung v The State of Western Australia [2003] FCA 774 at [23] - [26] per Finn J; McKenzie at 223 [41] per Finn J; Hillig at [60] per Bennett J; Reid at [28] per Finn J; and Kite at [22] per Finn J. For example, it may be that a sub-group of a community sharing traditional laws and customs alone possesses rights and interests in a particular area and that sub-group may itself constitute a native title claim group: Hillig at [60] per Bennett J (see also the obiter observations of Wilcox J in Bodney v State of Western Australia [2003] FCA 890 at [41] ; Perry M and Lloyd S, Australian Native Title Law (Lawbook Co, 2003) [3.130].
Case: Lawson on behalf of the 'Pooncarie' Barkandji (Paakantyi) People v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 1517
Outcome: cited
effect of s 251B of the NTA is that where there is a traditional process of decision-making (that is, the process identified in para (a)) then that process must be complied with. Where there is no traditional process of decision-making, s 251B(b) comes into play. Two points about s 251B(b) have been noted in the authorities. First, the paragraph envisages two steps, namely, the native title claim group agrees to the process whereby a decision authorising a person to make an application is made, and then the making of the decision itself: Wharton on behalf of the Kooma People v State of Queensland [2003] FCA 790 at [42] per Emmett J. Secondly, the paragraph does not include the word "all". There will clearly be cases where it will not be possible to secure the agreement of each and every member of the native title claim group. For example, members of a native title claim group may include infants, those who are mentally defective and those whose whereabouts are unknown. In recognition of this practical reality, it has been said that there will be no defect in the authorisation where all members of the native title claim group are given a reasonable opportunity to take part in the decision-making process: Lawson on behalf of the 'Pooncarie' Barkandji (Paakantyi) People v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 1517 ; Moran v Minister for Land and Water Conservation for the State of New South Wales (2000) 5(2) AILR 61 at 69 [40].
Case: Moran v Minister for Land and Water Conservation for the State of New South Wales (2000) 5(2) AILR 61
Outcome: cited
effect of s 251B of the NTA is that where there is a traditional process of decision-making (that is, the process identified in para (a)) then that process must be complied with. Where there is no traditional process of decision-making, s 251B(b) comes into play. Two points about s 251B(b) have been noted in the authorities. First, the paragraph envisages two steps, namely, the native title claim group agrees to the process whereby a decision authorising a person to make an application is made, and then the making of the decision itself: Wharton on behalf of the Kooma People v State of Queensland [2003] FCA 790 at [42] per Emmett J. Secondly, the paragraph does not include the word "all". There will clearly be cases where it will not be possible to secure the agreement of each and every member of the native title claim group. For example, members of a native title claim group may include infants, those who are mentally defective and those whose whereabouts are unknown. In recognition of this practical reality, it has been said that there will be no defect in the authorisation where all members of the native title claim group are given a reasonable opportunity to take part in the decision-making process: Lawson on behalf of the 'Pooncarie' Barkandji (Paakantyi) People v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 1517 ; Moran v Minister for Land and Water Conservation for the State of New South Wales (2000) 5(2) AILR 61 at 69 [40].
Case: Reid v State of South Australia [2007] FCA 1479
Outcome: referred to
native title determination application does not comply with s 61 of the NTA if it is clearly established that it is not made by a native title claim group. A native title claim group is a group consisting of all the persons who, according to their traditional laws and customs, had the common or group rights or interests comprising the particular native title claimed. These propositions follow from the provisions of ss 61(1) and (4), 251B and 253 of the NTA and have been stated in the cases: Risk v National Native Title Tribunal [2000] FCA 1589 at [60] - [61] per O'Loughlin J; Tilmouth v Northern Territory of Australia [2001] FCA 820 ; (2001) 109 FCR 240 (" Tilmouth ") at 241-242 [4] per O'Loughlin J; Landers v State of South Australia [2003] FCA 264 ; (2003) 128 FCR 495 (" Landers ") at 504 [33] per Mansfield J; Dieri People v State of South Australia [2003] FCA 187 ; (2003) 127 FCR 364 (" Dieri People ") at 377-378 [55]-[56] per Mansfield J; McKenzie at 223 [41] per Finn J; Hillig as Administrator of Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales (No 2) [2006] FCA 1115 (" Hillig ") at [60] per Bennett J; Harrington-Smith (on behalf of the Wongatha People) v Western Australia (No 9) [2007] FCA 31 ; (2007) 238 ALR 1 at 230-232 [1206] - [1217] per Lindgren J; Reid v State of South Australia [2007] FCA 1479 (" Reid ") at [27] per Finn J; Kite v State of South Australia [2007] FCA 1662 (" Kite ") at [21]-[22] per Finn J. The propositions have been applied most commonly in circumstances where it is clear that the claimant group is a sub-group or sub-set or part of a native title claim group. Cases such as Tilmouth , Landers , Dieri People , McKenzie and Reid are all cases in which it was clear that the claim group was not a native title claim group. The cases also make it clear that caution needs to be exercised before concluding on a strike-out application that a claim group is a sub-group, sub-set or part of a native title claim group: Colbung v The State of Western Australia [2003] FCA 774 at [23] - [26] per Finn J; McKenzie at 223 [41] per Finn J; Hillig at [60] per Bennett J; Reid at [28] per Finn J; and Kite at [22] per Finn J. For example, it may be that a sub-group of a community sharing traditional laws and customs alone possesses rights and interests in a particular area and that sub-group may itself constitute a native title claim group: Hillig at [60] per Bennett J (see also the obiter observations of Wilcox J in Bodney v State of Western Australia [2003] FCA 890 at [41] ; Perry M and Lloyd S, Australian Native Title Law (Lawbook Co, 2003) [3.130].
Case: Risk v National Native Title Tribunal [2000] FCA 1589
Outcome: referred to
native title determination application does not comply with s 61 of the NTA if it is clearly established that it is not made by a native title claim group. A native title claim group is a group consisting of all the persons who, according to their traditional laws and customs, had the common or group rights or interests comprising the particular native title claimed. These propositions follow from the provisions of ss 61(1) and (4), 251B and 253 of the NTA and have been stated in the cases: Risk v National Native Title Tribunal [2000] FCA 1589 at [60] - [61] per O'Loughlin J; Tilmouth v Northern Territory of Australia [2001] FCA 820 ; (2001) 109 FCR 240 (" Tilmouth ") at 241-242 [4] per O'Loughlin J; Landers v State of South Australia [2003] FCA 264 ; (2003) 128 FCR 495 (" Landers ") at 504 [33] per Mansfield J; Dieri People v State of South Australia [2003] FCA 187 ; (2003) 127 FCR 364 (" Dieri People ") at 377-378 [55]-[56] per Mansfield J; McKenzie at 223 [41] per Finn J; Hillig as Administrator of Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales (No 2) [2006] FCA 1115 (" Hillig ") at [60] per Bennett J; Harrington-Smith (on behalf of the Wongatha People) v Western Australia (No 9) [2007] FCA 31 ; (2007) 238 ALR 1 at 230-232 [1206] - [1217] per Lindgren J; Reid v State of South Australia [2007] FCA 1479 (" Reid ") at [27] per Finn J; Kite v State of South Australia [2007] FCA 1662 (" Kite ") at [21]-[22] per Finn J.
Case: Tilmouth v Northern Territory of Australia [2001] FCA 820 ; (2001) 109 FCR 240
Outcome: referred to
native title determination application does not comply with s 61 of the NTA if it is clearly established that it is not made by a native title claim group. A native title claim group is a group consisting of all the persons who, according to their traditional laws and customs, had the common or group rights or interests comprising the particular native title claimed. These propositions follow from the provisions of ss 61(1) and (4), 251B and 253 of the NTA and have been stated in the cases: Risk v National Native Title Tribunal [2000] FCA 1589 at [60] - [61] per O'Loughlin J; Tilmouth v Northern Territory of Australia [2001] FCA 820 ; (2001) 109 FCR 240 (" Tilmouth ") at 241-242 [4] per O'Loughlin J; Landers v State of South Australia [2003] FCA 264 ; (2003) 128 FCR 495 (" Landers ") at 504 [33] per Mansfield J; Dieri People v State of South Australia [2003] FCA 187 ; (2003) 127 FCR 364 (" Dieri People ") at 377-378 [55]-[56] per Mansfield J; McKenzie at 223 [41] per Finn J; Hillig as Administrator of Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales (No 2) [2006] FCA 1115 (" Hillig ") at [60] per Bennett J; Harrington-Smith (on behalf of the Wongatha People) v Western Australia (No 9) [2007] FCA 31 ; (2007) 238 ALR 1 at 230-232 [1206] - [1217] per Lindgren J; Reid v State of South Australia [2007] FCA 1479 (" Reid ") at [27] per Finn J; Kite v State of South Australia [2007] FCA 1662 (" Kite ") at [21]-[22] per Finn J. The propositions have been applied most commonly in circumstances where it is clear that the claimant group is a sub-group or sub-set or part of a native title claim group. Cases such as Tilmouth , Landers , Dieri People , McKenzie and Reid are all cases in which it was clear that the claim group was not a native title claim group. The cases also make it clear that caution needs to be exercised before concluding on a strike-out application that a claim group is a sub-group, sub-set or part of a native title claim group: Colbung v The State of Western Australia [2003] FCA 774 at [23] - [26] per Finn J; McKenzie at 223 [41] per Finn J; Hillig at [60] per Bennett J; Reid at [28] per Finn J; and Kite at [22] per Finn J. For example, it may be that a sub-group of a community sharing traditional laws and customs alone possesses rights and interests in a particular area and that sub-group may itself constitute a native title claim group: Hillig at [60] per Bennett J (see also the obiter observations of Wilcox J in Bodney v State of Western Australia [2003] FCA 890 at [41] ; Perry M and Lloyd S, Australian Native Title Law (Lawbook Co, 2003) [3.130].
Case: Wharton on behalf of the Kooma People v State of Queensland [2003] FCA 790
Outcome: cited
effect of s 251B of the NTA is that where there is a traditional process of decision-making (that is, the process identified in para (a)) then that process must be complied with. Where there is no traditional process of decision-making, s 251B(b) comes into play. Two points about s 251B(b) have been noted in the authorities. First, the paragraph envisages two steps, namely, the native title claim group agrees to the process whereby a decision authorising a person to make an application is made, and then the making of the decision itself: Wharton on behalf of the Kooma People v State of Queensland [2003] FCA 790 at [42] per Emmett J. Secondly, the paragraph does not include the word "all". There will clearly be cases where it will not be possible to secure the agreement of each and every member of the native title claim group. For example, members of a native title claim group may include infants, those who are mentally defective and those whose whereabouts are unknown. In recognition of this practical reality, it has been said that there will be no defect in the authorisation where all members of the native title claim group are given a reasonable opportunity to take part in the decision-making process: Lawson on behalf of the 'Pooncarie' Barkandji (Paakantyi) People v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 1517 ; Moran v Minister for Land and Water Conservation for the State of New South Wales (2000) 5(2) AILR 61 at 69 [40].
Case: Commissioner of Taxation v Futuris Corporation Ltd [2008] HCA 32 ; (2008) 82 ALJR 1177
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: Dalco v Commissioner of Taxation (1987) 19 ATR 443
Outcome: cited
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: Deputy Commissioner of Taxation v Richard Walter Pty Ltd [1995] HCA 23 ; (1994-1995) 183 CLR 168
Outcome: applied
The Commissioner is entitled to raise alternative assessments. What he is not entitled to do is twice or more to recover tax in respect of the same income. The prevailing position was summarised and pertinent authorities were collected by Brennan J (as his Honour then was) in Deputy Commissioner of Taxation v Richard Walter Pty Ltd [1995] HCA 23 ; (1994-1995) 183 CLR 168 at 202: The appropriateness of alternative assessments to tax of two taxpayers in respect of the same item of income was recognized in a dictum of this Court in Deputy Commissioner of Taxation v. Moorebank Pty. Ltd. And the courts, if not the Commissioner, can diminish the difficulty of concurrent assessments by ensuring that there is no double recovery of tax. The co-existence of tax liabilities arising from concurrent assessments is entirely consistent with the operation of s 177(1). If the Commissioner employs s 177(1) in a proceeding to recover tax from taxpayer A, the liability of that taxpayer cannot be avoided by pointing to an outstanding assessment against taxpayer B. Section 177(1) operates as between the Commissioner and the taxpayer served with the notice of assessment in a proceeding between them and the notice of assessment issued to another taxpayer does not qualify or affect the operation of s 177(1). (Footnote references omitted) See also to like effect in that same case the reasons for judgment of Dawson J at p 216-217 and of Toohey J at p 228. The relevant root authority is Richardson v Commissioner of Taxation [1932] HCA 67 ; (1932) 48 CLR 192. 25 Had Crown Insurance paid the deemed assessments prior to the making of the DPO and either this fact not drawn to the attention of Mr Benson or if it had and its implications had not been taken into account in considering the extent to which Mr Pattenden's tax liability had thereby been discharged, there may have been a basis for the submission which came not to be pressed but it is unnecessary to decide the point. The mere fact that Mr Benson was unaware that deemed assessments existed in respect of Crown Insurance had no impact on the reaching of a conclusion that Mr Pattenden was subject to a taxation liability that had not been wholly discharged. I consider below whether there is any other ramification of his ignorance of the deemed assessments. 26 There was no suggestion that bad faith on the part of the Commissioner or his staff attended the issuing of the amended assessments to Mr Pattenden in January 2008. The production and tender in evidence of the authenticated copies of those amended assessments and the other assessment establishes conclusively in this appeal that those assessments were duly made and that the amount and all particulars of each assessment are correct: s 177(1) ITAA36.