mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Brown v The Repatriation Commission [1985] FCA 194 ; (1985) 7 FCR 302
Outcome: cited
Section 44 of the Tribunal Act provides that a party may appeal to the Federal Court, on a question of law, from any decision of the Tribunal. The existence of a question of law is not merely a qualifying condition to ground an appeal from a decision of the Tribunal. Rather, it and it alone, is the subject matter of the appeal and the ambit of the appeal is confined to that question of law: Brown v The Repatriation Commission [1985] FCA 194 ; (1985) 7 FCR 302. The Commissioner contends that the first three of those purported questions are not questions of law and should be struck out. 37 The thrust of the Taxpayer's contentions, in effect, is that, at the time of the termination of his employment, he was physically located in Tokyo and was not a resident of Australia. He contends that, while the period of reasonable notice may properly be determined by reference to the time of his employment by Deutsche Australia, the relevant fact is that, at the time of termination, he was being remunerated by Deutsche Securities and the Redundancy Payment was made in circumstances where he had asserted, through his solicitors, an entitlement to a payment equivalent to 24 months' salary, and had asserted that any such payment would not be subject to deduction of tax because it was a payment within the definition in s 27A. 38 The grounds of appeal are not easy to comprehend. First, the Taxpayer says that the Tribunal erred in considering that legal employment by Deutsche Australia, an Australian entity, was service not in a foreign country under paragraph (iii). Rather, he says, the Tribunal should have considered the legislative context, which included s 23AG of the Assessment Act, which had the effect that salary paid while not a resident would be exempt. The Taxpayer asserts that, had he been given reasonable notice, the reasonable notice period of 14 months would have been worked out in Japan for which he would have received salary that would have been exempt. However, there was no finding to that effect by the Tribunal. Indeed, the Tribunal was not asked to make such a finding. It is certainly not self-evident that such a finding should or could have been made on the material before the Tribunal. The first ground has no substance.
Case: McLaurin v Federal Commissioner of Taxation [1961] HCA 9 ; (1961) 104 CLR 381
Outcome: applied
It would be wrong to allow a determination of the character of a receipt in the hands of the recipient to be affected by a consideration of the uncommunicated reasoning that led the payer to agree to make the payment. On the other hand, in a proper case, a single payment or receipt of a mixed nature may be apportioned amongst the several heads to which it relates. Thus, it may be appropriate to follow such a course where the payment or receipt is in settlement of distinct claims of which some at least are liquidated or are otherwise ascertainable by calculation. On the other hand, it will not be appropriate where the payment or receipt is in respect of a claim or claims for unliquidated damages only and is made or accepted under a compromise that treats it as a single undissected amount of damages. In such a case, the amount must be considered as a whole: McLaurin v Federal Commissioner of Taxation [1961] HCA 9 ; (1961) 104 CLR 381 at 391. 50 The Commissioner accepts that, had there been a basis for apportioning part of the Redundancy Payment, such that it could be said that that part was attributable to the Taxpayer's service in Japan and related solely to the period of his employment in Japan, it may have been possible to dissect the Redundancy Payment. However, no such apportionment was made by the Taxpayer and Deutsche Australia. There was a dissection made, in the correspondence that led to the payment, insofar as a distinction was drawn between redundancy and payment in lieu of notice. However, that distinction was not related to the respective periods of employment in Australia and in Japan. The 11 months' redundancy was calculated by reference to the total period of employment of the Taxpayer by Deutsche Australia from the Taxpayer's commencement in 1992 until his termination in 2002. Similarly, the payment in lieu of notice was not limited to the period of his employment in Japan. The material before the Tribunal indicated that the Taxpayer continued to be employed by Deutsche Australia. Deutsche Australia terminated his employment, albeit at a time when he was serving in Japan and was non-resident. 51 It may have been possible for the Taxpayer and Deutsche Australia to agree on the manner in which the Redundancy Payment was to be apportioned as between service in Japan and service in Australia, such that that part attributable to the service in Japan would not be included in the Taxpayer's assessable income. However, they did not do that. There was no error of law on the part of the Tribunal in concluding that dissection of the Redundancy Payment was not permissible in the circumstances before it.
Case: Jess v Scott (1986) 12 FCR 187
Outcome: considered
The leading authority in relation to the exercise of that discretion is a decision of the Full Federal Court in Jess v Scott (1986) 12 FCR 187. At page 195 in that case, it is observed that the term " special reasons " is " an elastic test suitable for application across a range of situations, from an oversight of a day to a neglect persisted in during a prolonged period ". I remind myself also that the rules of Court are meant to be a servant of justice, not its master. 8 Later cases have highlighted a number of considerations that are relevant to the granting of an extension of time within which to appeal. These are: (a) the length of the delay involved in the filing of the notice; (b) where there is an acceptable explanation for that delay; (c) whether the respondent will suffer prejudice by reason of the delay; and (d) the nature of the injustice to the applicant if an extension is not granted. 9 As to the last of these considerations, it can, in particular cases, be relevant to consider the merits of the proposed appeal having regard to the draft notice of appeal grounds. There is no asserted prejudice to the Minister or, for that matter, the Executive Government of the Commonwealth, in relation to the granting of an extension. Further, I can well understand the difficulties faced by a person whose first language is not English and whose command of English is, at best, very limited.
Case: Cummings v Lewis (1993) 113 ALR 285
Outcome: cited
The principles which guide the exercise of the discretion were summarised by Toohey J in Hughes v Western Australian Cricket Association (Inc) [1986] ATPR 40-748 at 48,136. See also Cooper J in Cummings v Lewis (1993) 113 ALR 285 at 324-9. It can be said that ordinarily costs follow the event, and a successful litigant is entitled to its costs in the absence of special circumstances justifying some other order. In these circumstances, the ordinary rule should apply.
Case: Hughes v Western Australian Cricket Association (Inc) [1986] ATPR 40-748
Outcome: considered
The principles which guide the exercise of the discretion were summarised by Toohey J in Hughes v Western Australian Cricket Association (Inc) [1986] ATPR 40-748 at 48,136. See also Cooper J in Cummings v Lewis (1993) 113 ALR 285 at 324-9. It can be said that ordinarily costs follow the event, and a successful litigant is entitled to its costs in the absence of special circumstances justifying some other order. In these circumstances, the ordinary rule should apply.
Case: Adams v Naylor [1946] AC 543
Outcome: cited
At [157], Heydon JA pointed out that 'the court is not bound to act on admissions made by the parties or on states of fact agreed between the parties.' His Honour then cited the Gramophone Co case, quoting an extensive passage from the speech of Lord Loreburn LC, including the passage I have quoted at [43]. At [158] and [159], his Honour referred to two other English cases, Adams v Naylor [1946] AC 543 and Royster v Cavey [1947] KB 204, in both of which it had been held that crucial admissions on which the cases had been conducted at first instance should not be accepted, because they were contrary to fact. By way of conclusion, at [160], Heydon JA said: 'In short, the courts are averse to pronouncing judgments on hypotheses which are not correct. To do so is tantamount to giving advisory opinions and to encouraging collusive litigation. On the other hand, the courts will act on admissions of or agreements about matters of fact where there is no reason to doubt their correctness. But they are reluctant to do so where there is reason to question the correctness of the facts admitted or agreed.'
Case: Ahern v R [1988] HCA 39 ; (1988) 165 CLR 87
Outcome: cited
Some confirmation of this proposition is available from the authorities. On two occasions, the New South Wales Court of Criminal Appeal has said that s 87(1)(c) of the Evidence Act 1995 (NSW) (which is in the same form as s 87(1)(c) of the Evidence Act ) reproduces the pre-existing common law. See R v Macraild (unreported, NSW Court of Criminal Appeal, Sully, Dunford and Simpson JJ, 18 December 1997) at 9 and Watt v R [2000] NSWCCA 37 at [8] . The pre-existing common law is found in Tripodi v R [1961] HCA 22 ; (1961) 104 CLR 1 at 7 and Ahern v R [1988] HCA 39 ; (1988) 165 CLR 87 at 100. In both of these cases, the High Court of Australia made it clear that the statement by B could only be admissible against C if there were 'reasonable evidence' establishing the existence of the common purpose, apart from the statement itself. I do not necessarily accept, as the New South Wales Court of Criminal Appeals appears to have done, that the 'reasonable evidence' test is identical to the formulation 'reasonably open to find' preferred by the legislature. For present purposes, however, Macraild and Watt stand as authority for the proposition that, so far as they are consistent with the terms of s 87(1)(c) of the Evidence Act , Tripodi and Ahern are to be taken as providing authority on the proper construction of that provision. It follows that s 87(1)(c) must be applied on the basis that the admissibility of B's statement as against C can only be determined by reference to evidence other than the statement itself.
Case: Apco Service Stations Pty Ltd v Australian Competition and Consumer Commission [2005] FCAFC 161 (2005) ATPR 42-078
Outcome: followed
Counsel for the ACCC found it necessary to grapple with the use of the word 'commitment' in the judgment of the Full Court in Apco Service Stations Pty Ltd v Australian Competition and Consumer Commission [2005] FCAFC 161 (2005) ATPR 42-078 (' Apco Service Stations ') at [43] [47]. In that case, which concerned allegations that dealers in the Ballarat retail petrol market had been involved in an arrangement or understanding to fix the price of petrol, and which involved some of the parties to the present case, the trial judge had declined to make a finding that one dealer became committed to any price increase agreed on by the other dealers. In addition, his Honour had made a finding that the other dealers had no expectation that the uncommitted dealer's readiness to receive telephone calls about prices meant that the uncommitted dealer would substantially match those prices. The Full Court expressed the view that these findings led to the unavoidable conclusion that the uncommitted dealer was not a party to any understanding that it would fix its prices at the same level as the other dealers or at any particular level, or even that it would increase its prices at all. In expressing this view, at [45], the Full Court pointed out that the appellants in that case had not disputed that the trial judge had enunciated the correct legal principles. The trial judge had referred, and the Full Court also referred, to observations of Lindgren J in Australian Competition and Consumer Commission v CC (NSW) Pty Ltd [1999] FCA 954 (1999) 92 FCR 375 at [141] , which were specifically endorsed by a Full Court in Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213 (2002) 118 FCR 236 at [79] . Lindgren J said: 'The cases require that at least one party "assume an obligation" or give an "assurance" or "undertaking" that it will act in a certain way. A mere expectation that as a matter of fact a party will act in a certain way is not enough, even if it has been engendered by that party. In the present case, for example, each individual who attended the Meeting may have expected that as a matter of fact the others would return to their respective offices by car, or, to express the matter differently, each may have been expected by the others to act in that way. Each may even have "aroused" that expectation by things he said at the Meeting. But these factual expectations do not found an "understanding" in the sense in which the word is used in ss 45 and 45A . The conjunction of the word "understanding" with the words "agreement" and "arrangement" and the nature of the provisions show that something more is required.'
Case: ACCC v Apco Service Stations Pty Ltd &amp; Anor [2006] HCATrans 272
Outcome: cited
In the present case, counsel for the ACCC recognised that the judgment in Apco Service Stations was binding on me. They made the formal submission that the Full Court was in error when it required that there be some commitment, before there could be an understanding for the purposes of s 45(2)(a) of the Trade Practices Act . The reality is that the previous authorities dealing with the content of an understanding, as distinct from its formation, provide ample support for what the Full Court said in Apco Service Stations . More than ample support is also found in the analysis of the relevant provisions, which I have already set out in [24] [34]. As I have said, for the purposes of s 45(2)(a) there can be no such thing as an understanding that leaves each party to it free to do whatever it wishes. Whatever word may be chosen to represent the essential element of an understanding for the purposes of the relevant statutory provisions, it is clear that element involves the assumption of an obligation, unenforceable in any court of law, but merely morally binding or binding in honour. Any reservation that may have existed about this has been dispelled by the High Court, which dismissed the ACCC's application for special leave to appeal from the Full Court in Apco Service Stations on 2 June 2006. See ACCC v Apco Service Stations Pty Ltd &amp; Anor [2006] HCATrans 272. At line 619, giving the judgment of himself and Hayne J, Gleeson CJ said: 'The decision of the Full Court of the Federal Court turned not upon any controversial view of the meaning of the relevant provisions of the Trade Practices Act but upon the Full Court's view of the facts in the light of the case as pleaded and argued by the Commission. In the light of the facts as found, the case does not raise any issue of law suitable to a grant of special leave to appeal. The application is dismissed with costs.' 38 For all of these reasons, quite apart from its binding effect on me, the correctness of the Full Court's judgment in Apco Service Stations cannot be doubted.
Case: Australian Competition and Consumer Commission v Francis [2004] FCA 487 (2004) 142 FCR 1
Outcome: cited
Termijtelen is authority for the proposition that the fact that an admission is a deemed admission, pursuant to a provision such as O 11 r 13 of the Federal Court Rules , does not have any effect on the question whether the Court should make a finding in accordance with it if the admission appears unreliable. It is also possible for the Court to dispense with compliance with the requirements of O 11 r 13, under the general dispensing power found in O 1 r 8 of the Federal Court Rules . See Australian Competition and Consumer Commission v Francis [2004] FCA 487 (2004) 142 FCR 1 at [42] [43]. It is clear that the powers in O 18 r 4(1) and (2) respectively are discretionary; the Court is not obliged to give judgment on the basis of admissions made, whether in pleadings or otherwise. Nor is it obliged to give such judgment without determining the other issues remaining in the proceeding. 56 The applicant, the ACCC, is established by s 6A(1) of the Trade Practices Act . By s 6A(2)(a) , the ACCC is a body corporate and by s 6A(2)(d) it may sue in its corporate name. The ACCC is a party given standing by s 77(1) of the Trade Practices Act to institute a proceeding for the recovery on behalf of the Commonwealth of a pecuniary penalty referred to in s 76. Section 80(1) also gives the ACCC standing to apply for an injunction. 57 Among the 18 respondents to the proceeding, the first eight are corporations. They are respectively: the first respondent, Leahy Petroleum Pty Ltd ('Leahy'); the second respondent, Apco Service Stations Pty Ltd ('Apco'); the third respondent, Pegasus Retail Pty Ltd ('Pegasus'); the fourth respondent, United Geelong Pty Ltd, formerly called United Fuels Pty Ltd ('United Fuels'); the fifth respondent, Brumar (Vic) Pty Ltd ('Brumar'); the sixth respondent, United Retail Pty Ltd ('United Retail'); the seventh respondent, Liberty Petroleum Pty Ltd ('Liberty') and the eighth respondent, Andrianopoulos Motors Pty Ltd ('Andrianopoulos').
Case: Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 2) [2005] FCA 254
Outcome: cited
On 17 December 2004, Merkel J delivered judgment in the Ballarat case , to which I have referred in [23], in a proceeding in which the ACCC alleged the existence of an arrangement or understanding to fix the prices of petrol in the City of Ballarat and its surrounding area. Among those found to be parties to the Ballarat arrangement or understanding was Brumar. Merkel J also found that Brumar had given effect to that arrangement or understanding on some 53 occasions. See the Ballarat case at [382]. On 17 March 2005, his Honour imposed a pecuniary penalty of $4 000 000 on Brumar in respect of those contraventions. See Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 2) [2005] FCA 254 at [42] . By that date, Brumar was already in liquidation, consequent upon a creditors' meeting on 17 February 2005. Earlier, Brumar had sold its business assets for a sum exceeding $26 000 000. Settlement of the sale occurred on 26 July 2003. After satisfaction of secured and other creditors out of the proceeds of sale, Brumar was left with $994 400. By the time of the liquidation, Brumar was said to have had total assets of $50 000 and creditors totalling $400. After investigation by the liquidator, on 18 May 2005, the liquidator expressed the view that a distribution to creditors of close to 100c in the dollar would be likely, subject to the resolution of a dispute as to whether any debt in respect of the costs awarded against Brumar by Merkel J on 17 March 2005 was provable in the liquidation. The liquidator contended that such a debt could not be proved in the liquidation. For practical purposes, any surplus of assets over liabilities of Brumar would be more than exhausted by the payment of the penalty imposed by Merkel J and the payment of any costs ordered by his Honour. The prospect of the ACCC recovering any pecuniary penalty from Brumar appears to be non-existent. Accordingly, for reasons similar to those I have given with respect to Leahy in [58], I also refused the ACCC's application, pursuant to s 500(2) of the Corporations Act , for leave to proceed against Brumar.
Case: British Basic Slag Ltd v Registrar of Restrictive Trading Agreements [1963] 2 All ER 807
Outcome: cited
However broad and flexible an understanding might be, for the purposes of s 45(2)(a) of the Trade Practices Act it must be a consensual dealing between parties. Like an arrangement, it falls outside the sphere of contractual obligations of a kind normally enforceable in a court. Unlike an arrangement, it can be tacit, in the sense that it can be arrived at by each party, either by words or acts, signifying an intention to act in a particular way in relation to a matter of concern to another party. In order to be a consensual dealing, however, an understanding must involve a meeting of minds. In Top Performance Motors Pty Ltd v Ira Berk (Queensland) Pty Ltd (1975) 24 FLR 286 at 291, Smithers J (with whom Evatt J agreed) referred to what Diplock LJ said in British Basic Slag Ltd v Registrar of Restrictive Trading Agreements [1963] 2 All ER 807 at 819 in relation to English legislation in terms different from s 45(2) of the Trade Practices Act , and said: 'by parity of reasoning it would follow that the existence of an arrangement of the kind contemplated in s. 45 is conditional upon a meeting of the minds of the parties to the arrangement in which one of them is understood, by the other or others, and intends to be so understood, as undertaking, in the role of a reasonable and conscientious man, to regard himself as being in some degree under a duty, moral or legal, to conduct himself in some particular way, at any rate so long as the other party or parties conducted themselves in the way contemplated by the arrangement. It seems to me also that an understanding must involve the meeting of two or more minds. Where the minds of the parties are at one that a proposed transaction between them proceeds on the basis of the maintenance of a particular state of affairs or the adoption of a particular course of conduct, it would seem that there would be an understanding within the meaning of the Act.'
Case: Federal Commissioner of Taxation v Cooper Brookes (Wollongong) Pty Ltd (1979) 41 FLR 277
Outcome: cited
The word 'arrangement' is less clearly understood, and more susceptible of elasticity as to its meaning. In general, it appears to connote a consensual dealing lacking some of the essential elements that would otherwise make it a contract. For instance, a dealing that would otherwise be a contract may be described as an 'arrangement' if the parties to it intended not to create a legally binding relationship, but only to give expression to their intentions as to the obligations that each felt morally bound to adhere to in relation to what was to pass between them, or to be carried out by them. Of course, an arrangement might be a broader concept than this, because it is a term the boundaries of which have not been fixed in the traditional understanding of lawyers. The Oxford English Dictionary gives as the apparently appropriate meaning of the word 'arrangement' 'a settlement of mutual relations or claims between parties; an adjustment of disputed or debatable matters; a settlement by agreement', or alternatively, 'disposition of measures for the accomplishment of a purpose; preparations for successful performance.' The ordinary understanding of what amounts to an 'arrangement' makes it difficult to envisage that an arrangement could come about without express negotiations between the parties, although there have been suggestions that an arrangement can be tacit. See Federal Commissioner of Taxation v Cooper Brookes (Wollongong) Pty Ltd (1979) 41 FLR 277 at 301 302 per Fisher J, with whom Brennan and Deane JJ agreed, referred to by Franki J in Trade Practices Commission v TNT Management Pty Ltd (1985) 6 FCR 1 at 24 in the context of s 45(2) of the Trade Practices Act . At the very least, there must be some express communication between the parties, although what is said may not amount to offer and acceptance for the purposes of the law of contract. The need for express communication is also suggested by the use of the verb 'make' in conjunction with both 'contract' and 'arrangement' in s 45(2)(a) of the Trade Practices Act . It is hard to see how two parties could 'make' an 'arrangement' without doing so expressly, at least as to the substance of the arrangement, even if the acceptance by one party of what the other has communicated is implicit in some act, rather than expressed in words.