mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Peabody v Federal Commissioner of Taxation [1992] FCA 463 ; 92 ATC 4585
Outcome: cited
It is not unusual for there to be a significant lag between the date from which major changes to Australia's taxation system are legislatively introduced and the time that such changes are first considered by the Courts. For example, it was not until 1992 that this Court had the opportunity to consider the provisions of Part IVA introduced into the Income Tax Assessment Act 1936 (Cth) ('the ITAA 36') some 11 years earlier and their application to an impugned scheme: Peabody v Federal Commissioner of Taxation [1992] HCA 62 ; 92 ATC 4 ,585. The changes involved in this case are no exception. In 1987, Australia introduced an imputation system (Pt IIIAA of the ITAA 36) for the taxation of companies and their shareholders in replacement of the classical system which had hitherto existed. Subsequent changes were made to the provisions of Pt IIIAA of the ITAA 36 prior to their embodiment in Pt 3 - 6 of the Income Tax Assessment Act 1997 (Cth) ('the ITAA 97'), however I am not aware of any judicial consideration of these provisions as originally enacted or as changed. One of these changes was the insertion of Div 2A (and 1AA) by Act No 93 of 1999. Relevantly, and in short, this change introduced, effective 13 May 1997, measures designed to curb the unintended usage of franking credits through franking credit trading schemes by, inter alia, quarantining the franking surpluses of companies on their ceasing to be effectively owned by non-residents. This was done through various concepts, including the concept of an exempting company (s 160APHBA) a company effectively owned (not less than 95%) by prescribed persons (non-residents) (ss 160APHBB and 160APHBF); and the concept of a former exempting company - a company that had ceased to be an exempting company and is not again an exempting company (subs 160APHBE(1)).
Case: Reliance Carpet Co Pty Ltd v Commissioner of Taxation (2007) 160 FCR 449
Outcome: cited
On a purely textual analysis of the relevant provisions, I am of the view that either argument is reasonably tenable, although I have a marginal preference for the applicants' argument. On the other hand, having regard to the principles of construction more recently enunciated by the High Court of Australia ( CIC Insurance Limited v Bankstown Football Club Limited [1997] HCA 10 ; (1997) 187 CLR 297) , followed by Full Courts of this Court ( HP Mercantile Pty Limited v Commissioner of Taxation [2005] FCAFC 126 ; (2005) 143 FCR 553) , not only with respect to taxation statutes but statutes generally, it would be inappropriate to confine oneself to a purely textual analysis. This is not to say that recourse may not be made to a textual analysis where there is a lack of guidance as to legislative policy from legitimate sources or where that policy as identified is incapable of manifestation through the text of the statute: Cf. Reliance Carpet Co Pty Ltd v Commissioner of Taxation (2007) 160 FCR 449. But that is not this case.
Case: Cheesman and Others v Waters and Another (1997) 148 ALR 21
Outcome: cited
In making the orders for substituted service upon the applicant, Registrar Kavallaris was exercising the power of the court provided by ss 103 and 102(2)(b) of the FMA. A Registrar of the Federal Magistrates Court has power to make orders pursuant to the FMC Bankruptcy Rules: see Cheesman and Others v Waters and Another (1997) 148 ALR 21. 39 Although the applicant claimed that no direction had been issued authorising a Registrar to exercise the power of the court as prescribed by reg 20.00A(2) of the FMC Rules, a delegation for such purpose has been made pursuant to the Federates Magistrates (Delegations to Registrars) Approval 2006 ('the Delegations') on 23 May 2006. Pursuant to the Delegations each Registrar referred to in Sch 1 thereof is approved to exercise powers under s 102(2)(a) to (i) of the FMA including the powers mentioned in Sch 2 of the FMC Bankruptcy Rules, as prescribed by r 2.02 of those Rules. Registrar Kavallaris is nominated in Sch 1. 40 Pursuant to the Federal Magistrates Court (Bankruptcy) Direction 2006 ('the Bankruptcy Direction') it was directed that the powers referred to in Sch 2 of the FMC Bankruptcy Rules may be exercised by a Registrar. The Delegations thus complete the authority provided to Registrars by Sch 2 of the FMC Bankruptcy Rules.
Case: SZHDO v Minister for Immigration and Anor [2008] FMCA 1156
Outcome: affirmed
This appeal is from a judgment of the Federal Magistrates Court of Australia, published as SZHDO v Minister for Immigration and Anor [2008] FMCA 1156. That judgment was given on 15 August 2008. The learned federal magistrate dismissed an application by the appellant, seeking judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"), dated 24 December 2007 and handed down or sent on 10 January 2008. The Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Citizenship ("the Minister"), to refuse to grant to the appellant a protection visa. 2 The appellant is a citizen of Nepal. He arrived in Australia on 29 November 2004. On 12 January 2005, he applied to the Department of Immigration and Citizenship for a protection visa. The Minister's delegate decided to refuse to grant the visa on 20 January 2005. The appellant has had two hearings in the Tribunal. The first decision affirming the delegate's decision was set aside by the Federal Magistrates Court and the matter was remitted to the Tribunal. 3 By s 36 of the Migration Act 1958 (Cth) ("the Migration Act "), there is a class of visas to be known as protection visas. A criterion for a protection visa is that the person applying for it be a non-citizen in Australia to whom the Minister is satisfied that Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The terms "Refugees Convention" and "Refugees Protocol" are defined in s 5(1) of the Migration Act to mean respectively the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol relating to the Status of Refugees done at New York on 31 January 1967 . It is convenient to refer to those two instruments, taken together, as the "Convention". For present purposes, it is sufficient to note that, pursuant to the Convention, Australia has protection obligations to a person who: owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country
Case: In Re Dare [1992] FCA 509 ; (1992) 38 FCR 356
Outcome: cited
The provisions of s 165(1)(b) of the Act were also considered by Drummond J in In Re Dare [1992] FCA 509 ; (1992) 38 FCR 356 at 359-361. His Honour agreed with French J that it is necessary to read down s 165(1)(b) to avoid absurdity, noting that the legislative intent could not have been to proscribe the long-standing practice of members of partnerships being appointed as trustees and bringing their earnings as trustees into the pool of partnership income. Drummond J also expressed the view at 359 that it was difficult to identify any policy in the Act that would be served by reading the subsection as preventing a trustee dealing as the trustee chose with his or her income so long as the dealing was for the trustee's benefit. Finding guidance as to the limitation that should be placed on s 165(1)(b) in its precursor, s 134(1)(b) of the Bankruptcy Act 1924 (Cth), his Honour concluded that the subsection would not strike at an employee-trustee paying over or arranging to have paid to the trustee's employer his or her fees earned as trustee. Although Drummond J did not give express consideration to the position of an independent consultant trustee, I see no reason to limit the general approach adopted by his Honour so as to exclude its operation in respect of an independent consultant trustee. 39 Considering it appropriate to follow the approach adopted by Drummond J in In Re Dare, I reject the submission that Mr Pantzer's arrangements concerning his remuneration as trustee of Dr Wenkart's bankrupt estate contravened s 165(1)(b) of the Act. I also reject the alternative submissions that to the extent to which Mr Pantzer was paid remuneration in excess of the amount that he actually received from the Partnership he is liable to Dr Wenkart as the residuary beneficiary of the trust estate in respect of that amount. 40 It is not in dispute that persons in the employ of the Partnerships assisted Mr Pantzer in the performance of his duties as trustee of Dr Wenkart's estate. Those persons were not accurately described as either partners or staff of Mr Pantzer. 41 Section 64U(5) of the Act required Mr Pantzer, at the first meeting of Dr Wenkart's creditors, to state the respective rates at which his remuneration and that of the other persons who would be assisting him would be calculated. It appears from the minutes of the meeting that Mr Pantzer sought to comply with this requirement by providing creditors with a copy of the document described in [18] above.
Case: Korda, in the Matter of Stockford Limited [2004] FCA 1682 ; (2004) 140 FCR 424
Outcome: cited
In Korda, in the Matter of Stockford Limited [2004] FCA 1682 ; (2004) 140 FCR 424 at [30] Finkelstein J expressed doubt as to the validity of the practice of creditors "fixing" the prospective fees of liquidators on a time-charge basis. Dr Wenkart submitted that the Court should conclude that this practice is inconsistent with the requirements of the Act.
Case: Nilant v Macchia [2000] FCA 1528 ; (2000) 104 FCR 238
Outcome: cited
A first meeting of creditors is, in my view, a proceeding under the Act within the meaning of s 306(1) of the Act ( Nilant v Macchia [2000] FCA 1528 ; (2000) 104 FCR 238 per Carr J at [36] and Weinberg J at [42]-[53]). The defect in the resolutions was in the circumstances, I conclude, "a formal defect or irregularity" (s 306(1)).
Case: Re Hurt, Ex parte Hurt (1988) 80 ALR 236
Outcome: considered
It is not necessary for me to express a view on whether the practice whereby the respective Partnerships charged in their own names for Mr Pantzer's work as trustee was objectionable. I note, however, that in Re Hurt, Ex parte Hurt (1988) 80 ALR 236 at 240-241 French J expressed the view in the context of an employed trustee in bankruptcy that a trustee should render accounts for work done as a trustee in the trustee's own name. His Honour observed at 241 that while the scope of s 165(1)(b) of the Act must be read "somewhat less than literally to avoid absurdity", it could well be infringed by an arrangement under which the trustee in effect seeks to alienate his remuneration at source by abdicating to his or her employer the right to charge for the trustee's services.
Case: Wenkart v Pantzer (2005) 223 ALR 384
Outcome: cited
In Wenkart v Pantzer (2005) 223 ALR 384 at [70]-[71] I said: Subsection 162(6) does not operate, in my view, to prevent a trustee whose remuneration is fixed, for example, on a time-spent basis, from causing some of the ordinary duties required by the Act to be performed by the trustee to be undertaken, in whole or in part, by persons under the trustee's supervision and control. If the section were to so operate it could be expected significantly to increase the costs of the administration of estates by rendering it impractical for a trustee to instruct less highly remunerated personnel to undertake aspects of the trustee's duties under the trustee's supervision. I conclude that subs 162(6) does not operate to require a taxing officer to disallow claims for remuneration by Mr Pantzer where the ordinary duties required by the Act to be performed by the trustee were performed by a person acting on behalf of Mr Pantzer and under his supervision and control. This view is consistent with the view expressed by Rogerson J in Re Ladyman (1981) 38 ALR 631 at 644 that a trustee can claim to be reimbursed for the cost of services rendered by persons employed exclusively by him or her. I also note that the Guide to Hourly Rates published by the Insolvency Practitioners' Association of Australia, which is recognised by reg 8.08, assumes that work will be undertaken by persons other than the trustee himself or herself. 48 I am not satisfied in the circumstances of this case that the erroneous description in the resolution of creditors of those who assisted Mr Pantzer rendered those resolutions ineffective to fix Mr Pantzer's remuneration. It may be assumed that the creditors accurately understood that the persons concerned were partners or employees of the Partnerships. Nothing in the evidence suggests that the precise nature of the relationship between those persons and Mr Pantzer was of any real interest to the creditors.
Case: Wenkart v Pantzer (No 6) [2003] FCA 1210
Outcome: cited
Additionally, as I noted in [2007] FCA 1589 at [64] , Mr Pantzer's claim for 85% of the sum of $115,406.07 (ie $98,095.16) has been the subject of litigation in other proceedings. In Wenkart v Pantzer (No 6) [2003] FCA 1210 published on 29 October 2003, Lindgren J dismissed a motion by Dr Wenkart for an extension of time within which to request that this claim be taxed. On that day Mr Pantzer's claim to be lawfully entitled to that sum was rendered effectively beyond challenge. The date upon which he is to be regarded as becoming lawfully entitled to the sum is, in my view, 14 days after Dr Wenkart became aware of the amount of the claim, namely 29 March 2002 (reg 8.09(1) of the Bankruptcy Regulations 1996 as then in force). This amount is reflected in the second unpaid amount listed in Mr Pantzer's schedule.
Case: QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 136 ; (2005) 145 FCR 363
Outcome: considered
In these circumstances, the appellant submits that the reasons of Wilcox and Madgwick JJ in the earlier Full Court case QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 136 ; (2005) 145 FCR 363 should be followed and applied. In that case, the majority held that if the decision-maker is satisfied that an applicant has already been recognised as a refugee under Art 1A(2) of the Convention and is not satisfied that this status has ceased under Art 1C(5), then Australia will have protection obligations to the applicant. The appellant says that on a correct reading, NBGM has no ratio-decidendi and therefore no application, or alternatively that it is authority contrary to the position of the respondent. It is argued that on a correct analysis, it can be seen that Stone J arrived at her decision in her separate reasons on a basis inconsistent with reasoning of Black CJ and Mansfield J. The appellant submits that for this reason, and notwithstanding her Honour's statement at [149] expressing her agreement with the proposition set out therein, the position as articulated in [25] of Black CJ's reasons should not be followed. Therefore, it is said, the majority decision in QAAH correctly expresses the law and must be applied.
Case: Gloria Marshall Australia Pty Limited (in liq) v Bell Press Pty Limited [2002] NSWSC 1191
Outcome: referred to
The approach adopted by Austin J was followed by Young CJ in Eq in Gloria Marshall Australia Pty Limited (in liq) v Bell Press Pty Limited [2002] NSWSC 1191. His Honour considered that the best way of dealing with the matter was to apply a common sense approach to the issue. I respectfully follow what was said by Austin J and by the Chief Judge in Equity as guiding the exercise of my discretion in the present case. 13 The present proceedings are at a very early stage. The "consolidated" proceeding and the 38 separate proceedings were commenced close to the expiration of the limitation period. The plaintiff proposes to discontinue against seven of the defendants, leaving 31 in the consolidated proceeding or 31 separate actions if I refuse leave in matter NSD439 of 2006.
Case: ACS v Anderson [1975] 1 NSWLR 212
Outcome: cited
The circumstances of this case are not quite the same as ACS v Anderson [1975] 1 NSWLR 212, to which I was referred in argument. There it was held that the entitlement of both the Crown and the accused to appeal against an evidentiary ruling, thereby providing a means of determining the question raised by an application for declaratory relief, was a ' cogent reason for the jurisdiction being declined ': at 217, per Hutley JA. In the present case, the prosecution does not yet have a means of challenging the Judge Advocate's ruling. But the likelihood is that it will soon have a means of challenging any similar ruling in this Court. 89 The evidence does not establish that there are any pending courts martial that will necessarily give rise to the same legal issue as that presented by the Judge Advocate's ruling in the present case. Even if the same issue does arise, the applicants do not suggest that a later court martial will be bound to follow the Judge Advocate's ruling. If that ruling is as flawed as the applicants suggest, they will be able to challenge it before the court martial when it convenes. 90 Furthermore, the intervention of this Court would sanction significant delay by the applicants, for which no adequate explanation has been given. The court martial process has been fragmented to the detriment of the Accused. Indeed, the making of a declaration will effectively require the court martial to reconsider the admissibility of the Record of Interview in the light of other arguments advanced by the Accused. An alternative procedure, which is sanctioned by Parliament and protects the interests of accused persons, is likely to be available shortly. This procedure will allow any ruling to the same effect as that made by the Judge Advocate, insofar as it has value as a precedent, to be challenged in this Court.
Case: Austral Pacific Group Ltd (in liq) v Airservices Australia [2000] HCA 39 ; (2000) 203 CLR 136
Outcome: cited
The expression ' the Commonwealth ' as used in s 39B(1A)(a) of the Judiciary Act , is not to be construed narrowly. It includes statutory corporations which are agencies or instrumentalities of the Commonwealth: ASIC v Edensor , at 582 [43], per Gleeson, Gaudron and Gummow JJ; Austral Pacific Group Ltd (in liq) v Airservices Australia [2000] HCA 39 ; (2000) 203 CLR 136, at 152-153 [48] (and cases cited there) per McHugh J. However, it is not only a corporation that can be ' the Commonwealth ' for the purposes of s 39B(1A)(a) of the Judiciary Act . In Commonwealth v Lyon [2003] FCAFC 284 ; (2003) 133 FCR 265, at 271 [21], the Full Federal Court considered it ' likely ' that the Commissioner of the Australian Federal Police was to be regarded as the Commonwealth for this purpose.
Case: Commonwealth v Lyon [2003] FCAFC 284 ; (2003) 133 FCR 265
Outcome: cited
The expression ' the Commonwealth ' as used in s 39B(1A)(a) of the Judiciary Act , is not to be construed narrowly. It includes statutory corporations which are agencies or instrumentalities of the Commonwealth: ASIC v Edensor , at 582 [43], per Gleeson, Gaudron and Gummow JJ; Austral Pacific Group Ltd (in liq) v Airservices Australia [2000] HCA 39 ; (2000) 203 CLR 136, at 152-153 [48] (and cases cited there) per McHugh J. However, it is not only a corporation that can be ' the Commonwealth ' for the purposes of s 39B(1A)(a) of the Judiciary Act . In Commonwealth v Lyon [2003] FCAFC 284 ; (2003) 133 FCR 265, at 271 [21], the Full Federal Court considered it ' likely ' that the Commissioner of the Australian Federal Police was to be regarded as the Commonwealth for this purpose. 54 Mr Levet does not suggest that there is no ' matter ' before the Court within the meaning of s 39B(1A)(a) of the Judiciary Act . This presumably reflects his acceptance of the view that there is a real controversy between the Director and the Accused as to the proper construction of the DFD Act : see Commonwealth v Lyon , at 272 [24] ff. 55 At one stage, Mr Levet argued that the DFD Act and the Defence Force Discipline Appeals Act 1955 (Cth) (' DFDA Act ') constitute a code and that, together, they have the effect of depriving the Court of jurisdiction to grant declaratory relief in respect of a court martial. Mr Levet did not, however, persist with this argument. 56 I therefore conclude the Court has jurisdiction to entertain the application for a declaration. It is not necessary to consider whether the Commonwealth was properly joined as a party to the proceedings. 57 There is no dispute that, if the Court has jurisdiction to hear and determine the application for a declaration, it has the power to grant such a declaration: Commonwealth v Lyon , at 271-272 [22]. 58 Mr Levet submits ' with some diffidence ' that the Commonwealth Crown is one and indivisible and cannot appear on both sides of the record. He acknowledges that the Commonwealth often appears on both sides of the record, for example where one Commonwealth agency takes proceedings against another or where a Commonwealth official prosecutes a Commonwealth agency. He also acknowledges that he can point to no authority which has upheld the submission. 59 I do not think that there is any substance in the submission.
Case: Mellifont v. Attorney-General (Qld) [1991] HCA 53 ; (1991) 173 CLR 289
Outcome: cited
The Explanatory Memorandum accompanying the 2007 Bill records that the proposed amendments are designed: 'to enable the [Director] to seek a determination from the Defence Force Discipline Appeal Tribunal on a question of law that arises in an [Australian Military Court] trial, at the conclusion of that trial. This amendment gives the Defence Force Discipline Appeal Tribunal the jurisdiction to hear and determine the question of law. These items also make the necessary consequential amendments to provisions in the [ DFD Act ] to give effect to this amendment. The rationale for this proposal has been explained by the High Court in Mellifont v. Attorney-General (Qld) [1991] HCA 53 ; (1991) 173 CLR 289 the emphasis being that there should be a procedure to obtain a correct statement of the law for future cases (that is, precedent) "... the purpose of seeking and obtaining a review of the trial judge's ruling was to secure a correct statement of the law so that it would be applied correctly in future cases. ... The statutory procedure, which has counterparts in other Australian jurisdictions, is a standard procedure for correcting an error of law in criminal proceedings ..." The ability of the [Director] to obtain such rulings will serve to improve the efficiency and accuracy of future trials under the [ DFD Act ]'. (Emphasis added.) 74 The applicants do not suggest in their supplementary written submissions that it is inappropriate for me to take into account the terms of a Bill that is currently before Parliament (as distinct from taking into account legislation that has been passed by Parliament but is not yet in force). No doubt the applicants have adopted this stance because they recognise that it is likely that the 2007 Bill , insofar as it provides for the prosecution to refer a question of law to the Tribunal, will be enacted by Parliament in due course. In any event, I consider the applicants' stance to be a proper one for them to take, particularly having regard to the difficult position in which the Accused finds himself. 75 The applicants do point out, however, that the Bill, if passed, will apply only to future rulings of the proposed Australian Military Court. It will therefore not apply to rulings made by a court martial before the amending legislation comes into force. They also rely on the fact that the Bill makes no provision for appeals by the prosecution in respect of interlocutory rulings. Thus the proposed legislation will not incorporate provisions equivalent to s 5F of the Criminal Appeal Act 1912 (NSW), which allows interlocutory appeals in criminal prosecutions in certain circumstances.