mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Queensland v JL Holdings Pty Limited [1997] HCA 1 ; (1997) 189 CLR 146
Outcome: cited
The object of the Court is to decide the rights of the parties in and to resolve controversies. It is not to punish parties for mistakes they make in the conduct of their cases. Thus, the courts have developed principles as to when amendments may be made to pleadings to raise or change the form of the litigation, even at very late stages, provided that the other party can be compensated by an appropriate order for costs: Queensland v JL Holdings Pty Limited [1997] HCA 1 ; (1997) 189 CLR 146 at 152-155 per Dawson, Gaudron and McHugh JJ. 37 I consider that it was unreasonable of the Birri Gubba People to present a total of five lists, none of which, on final consideration, produced even one person whom they wished to call. The Birri Gubba People were represented by lawyers and the land council at all times. They were not in the position of litigants in person unable to make informed forensic judgments or to properly present their case to the Court. On the evidence before me, no proper, considered attention was given to the inclusion of any of the persons in the five lists that were provided by the Birri Gubba People for the purposes of identifying whose evidence ought be preserved. This is evident from the fact that the end result is that no such witness has been identified, although one person who was clearly an appropriate witness, has unfortunately passed away in the meantime. 38 On a number of occasions in open court the state of preparation of the land council was disclosed as being in disarray. I have no doubt that there was a sincere attempt to identify persons whose evidence might need to be taken on a number of occasions. But the attempt does not appear to have been undertaken by a lawyer familiar with litigation or with a view to determining whether or not any of those persons ought to be called to give evidence and what evidence he or she could give until, ultimately, the forensic decision was taken not to call any of them.
Case: Reid v South Australia [2007] FCA 1479
Outcome: cited
However, they held that s 85A(2) of the Act puts beyond doubt the extent of the Court's discretion in cases where a party has acted unreasonably. That provision does not control or limit the discretion available to the Court under s 85A(1). Their Honours held that the matters to be taken into account in making a costs order were left to the Court's discretion, which had to be exercised judicially. They said that the starting point was that each party would bear its own costs unless the Court determined that it was appropriate in the circumstances to make an order for costs. They emphasised that the starting point was not that costs ordinarily followed the event. Their Honours followed what Lee J had said at first instance in Ward v Western Australia [1999] FCA 580 ; (1999) 93 FCR 305 at 311-312 [31] - [37] . A similar approach has been taken in McKenzie v South Australia [2006] FCA 891 at [8] per Finn J and Reid v South Australia [2007] FCA 1479 at [53] - [54] per Finn J. In Reid [2007] FCA 1479 at [54] Finn J said that it is not proper to use the power to award costs to punish either a successful or unsuccessful party or to use it to operate as a deterrent to other would-be applicants.
Case: The Queen v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62 ; (1979) 144 CLR 45
Outcome: referred to
It is inappropriate to read a provision, such as s 43(2) of the Federal Court of Australia Act , which confers jurisdiction on, or grants powers to, a court, by making conditions or imposing limitations which are not to be found in the words used: Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72 at 81 [21] per Gaudron and Gummow JJ; see also Owners of "Shin Kobe Maru" v Empire Shipping Co Inc [1994] HCA 5 ; (1994) 181 CLR 404 at 421. The section contains no positive indication of the considerations upon which the Court is to determine by whom or to what extent costs to be paid. The power must be exercised judicially, not arbitrarily or capriciously or so as to frustrate the legislative intent. In the absence of some positive indication of the considerations on which a grant or refusal of consent is to depend, the discretion is 'unconfined except in so far as the subject matter and the scope and purpose of the statutory enactments may enable the Court to pronounce given reasons to be definitely extraneous to any objects the legislature could have had in view' as Dixon J said in Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21 ; (1947) 74 CLR 492 at 505; see also The Queen v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62 ; (1979) 144 CLR 45 at 49 per Stephen, Mason, Murphy, Aicken and Wilson JJ; Oshlack 193 CLR at 81 [22]; Probiotic Limited v The University of Melbourne [2008] FCAFC 5 at [47] in my judgment, with which Finn J at [1] and Besanko J at [82] agreed.
Case: Ward v Western Australia [1999] FCA 580 ; (1999) 93 FCR 305
Outcome: cited
However, they held that s 85A(2) of the Act puts beyond doubt the extent of the Court's discretion in cases where a party has acted unreasonably. That provision does not control or limit the discretion available to the Court under s 85A(1). Their Honours held that the matters to be taken into account in making a costs order were left to the Court's discretion, which had to be exercised judicially. They said that the starting point was that each party would bear its own costs unless the Court determined that it was appropriate in the circumstances to make an order for costs. They emphasised that the starting point was not that costs ordinarily followed the event. Their Honours followed what Lee J had said at first instance in Ward v Western Australia [1999] FCA 580 ; (1999) 93 FCR 305 at 311-312 [31] - [37] . A similar approach has been taken in McKenzie v South Australia [2006] FCA 891 at [8] per Finn J and Reid v South Australia [2007] FCA 1479 at [53] - [54] per Finn J. In Reid [2007] FCA 1479 at [54] Finn J said that it is not proper to use the power to award costs to punish either a successful or unsuccessful party or to use it to operate as a deterrent to other would-be applicants.
Case: Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21 ; (1947) 74 CLR 492
Outcome: cited
It is inappropriate to read a provision, such as s 43(2) of the Federal Court of Australia Act , which confers jurisdiction on, or grants powers to, a court, by making conditions or imposing limitations which are not to be found in the words used: Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72 at 81 [21] per Gaudron and Gummow JJ; see also Owners of "Shin Kobe Maru" v Empire Shipping Co Inc [1994] HCA 5 ; (1994) 181 CLR 404 at 421. The section contains no positive indication of the considerations upon which the Court is to determine by whom or to what extent costs to be paid. The power must be exercised judicially, not arbitrarily or capriciously or so as to frustrate the legislative intent. In the absence of some positive indication of the considerations on which a grant or refusal of consent is to depend, the discretion is 'unconfined except in so far as the subject matter and the scope and purpose of the statutory enactments may enable the Court to pronounce given reasons to be definitely extraneous to any objects the legislature could have had in view' as Dixon J said in Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21 ; (1947) 74 CLR 492 at 505; see also The Queen v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62 ; (1979) 144 CLR 45 at 49 per Stephen, Mason, Murphy, Aicken and Wilson JJ; Oshlack 193 CLR at 81 [22]; Probiotic Limited v The University of Melbourne [2008] FCAFC 5 at [47] in my judgment, with which Finn J at [1] and Besanko J at [82] agreed.
Case: Clark v Commissioner of Taxation [2007] FCA 1426
Outcome: referred to
In Bailey, the High Court did not regard the obligation to provide particulars as inconsistent with, or in any way compromising, the taxpayer's burden of proof. Rather their view was to the contrary. Gibbs J commented at 219 that: The fact that the taxpayer bears the onus of proving that the assessment is excessive makes it all the more necessary that he should be given particulars of the basis of the assessment. At 221 Mason J said that because the taxpayer has to prove that the Commissioner's assessment is excessive: ... the relevant facts in the appeal include the view of the facts on which the Commissioner has based his assessment, the manner in which he arrived at his assessment. These facts are not within the knowledge of the taxpayer; they are within the knowledge of the Commissioner. More recently, Greenwood J expressed a similar view in Clark v Commissioner of Taxation [2007] FCA 1426 at [37] . Jacobs J acknowledged in Bailey that particulars are essentially factual rather than legal, however his Honour recognised that for a request for particulars to be appropriately directed to the matter in dispute the issues must be sufficiently defined. At 221-2, his Honour made the following comment: ... when there are no sufficiently defined issues it is not always possible to obtain particulars of facts without first ascertaining whether those facts will be relevant to questions which may be raised. In the present case it is therefore necessary for the taxpayer and the Court to know the basis of the assessments.
Case: Jackson v Federal Commissioner of Taxation (1989) 20 ATR 611
Outcome: referred to
In outlining his conclusions on the application before him Sundberg J referred to Gummow J's comments in Jackson v Federal Commissioner of Taxation (1989) 20 ATR 611 at 618 that the taxpayer was entitled to know both the Commission's view and the facts on which that view was based. His Honour also said that he was in agreement with an extra-judicial observation of Beaumont J that the Commissioner's statement "must propound all the necessary ingredients of the claim for which, as a matter of legal substance, that party contends" ("Anatomy of a Federal Court Tax Case" (2000)(23)(2) UNSW Law Journal 237 at 238-9) and added, at 342: It is now well-established that the statement takes the place of pleadings so that after the exchange of statements the parties to a tax appeal know the case each has to meet. A statement that leaves the taxpayer uncertain as to how the case is put against it is embarrassing and oppressive. A statement that does not disclose the facts on which the respondent has based his assessment and the manner in which he has arrived at it, suffers from these twin vices.
Case: George v Federal Commissioner of Taxation [1952] HCA 21 ; (1952) 86 CLR 183
Outcome: considered
The Commissioner relies on s 14ZZO of the TAA which puts the onus on the applicant to prove the facts on which the applicant seeks to rely to show that the assessment is excessive and, unless the Court otherwise orders, limits the proceedings in this Court to the grounds stated in the taxation objection. In considering what the Commissioner must disclose in the appeal statements it is necessary to take account of the fact that the taxpayer has the burden of proof under s 14ZZO. This factor was also an issue in George v Federal Commissioner of Taxation [1952] HCA 21 ; (1952) 86 CLR 183 which was the earliest case involving the Commissioner's obligation to provide particulars with respect to assessments, albeit that the question arose in the context of earlier legislation. 11 In George, the taxpayer claimed that his taxable income was less than the amount assessed by the Commissioner. He sought orders that the Commissioner furnish particulars of the source from which it was alleged that he had derived that income. Kitto J declined to make the orders sought on the basis that it was the taxpayer and not the Commissioner who had the burden of proving that the assessment was excessive. His Honour commented, at 189, that in order to discharge the burden of proof the taxpayer, must necessarily exclude by his proof all sources of income except those which he admits. His case must be that he did not derive from any source taxable income to the amount of the assessment. 12 The Full High Court (Dixon CJ, McTiernan, Williams, Webb and Fullagar JJ) dismissed an appeal from the judgment of Kitto J. In their joint judgment, at 203, the Court pointed out that: ... even were it true that the commissioner must ... affirmatively prove by evidence that he formed a judgment of the amount of the income upon which the appellant ought to be taxed, it could not be part of his case to establish the facts upon which he acted in forming the judgment or the grounds on which he proceeded, the materials before him, or the reasoning actuating him. The need supposed of showing that he formed such a judgment could be no ground for requiring particulars of the sources of the taxable income ascribed by the assessment to the appellant.
Case: Rio Tinto Ltd v Federal Commissioner of Taxation (2004) 55 ATR 321
Outcome: considered
In Rio Tinto Ltd v Federal Commissioner of Taxation (2004) 55 ATR 321 there was, as here, a dispute as to whether the statement of facts, issues and contentions was so inadequate that it should be struck out or whether it would be sufficient to supplement it with particulars. In that case the Commissioner's statement listed the issues and contentions in a table against which the Commissioner indicated his position by a simple "yes" or "no". Sundberg J held that the deficiencies in the statement could not be cured by further particulars. His Honour noted, at 331, that the ultimate decision in the appeal before him would "turn on the facts established by the applicant, and not on those perceived and stated by the [Commissioner]" and rejected the claim that the applicant was seeking to invert the onus of proof.
Case: WR Carpenter Holdings Pty Ltd v Commissioner of Taxation (2006) 234 ALR 451
Outcome: cited
His Honour did not suggest that in taking the place of pleadings, the statement should be treated in the same way as pleadings. The difference between pleadings and a statement of facts, issues and contentions or an appeal statement was recognised by Lindgren J in WR Carpenter Holdings Pty Ltd v Commissioner of Taxation (2006) 234 ALR 451 where his Honour stated unequivocally, at 459, that a statement of facts, issues and contentions is not a pleading even within the extended definition of "pleading" in O 1 r 4 of the Federal Court Rules . 19 Ultimately, however, what is clear from all of the authorities is that the issue is one of substance; the taxpayer, and the court, must be given a clear and succinct statement of the Commissioner's position without imposing any element of a burden of proof on the Commissioner. In substituting such a statement for pleadings the legislature has provided for a very practical approach to the unusual situation where the taxpayer bears the burden of proving that the Commissioner's assessment is excessive. In my view, such a statement should not be overly scrutinised in an attempt to find errors or inadequacies. The question is: does the statement give the taxpayer a practical understanding of the Commissioner's position? 20 The applicant's complaints about the inadequacies it perceived in the respondent's appeal statements are set out in detail in a letter dated 3 August 2007 from its solicitor to that of the respondent. While expressly not conceding that those deficiencies could be cured by further particulars, a request for further and better particulars was enclosed with the letter. In its response dated 17 August 2007, the respondent's solicitor declined to amend the statements but said that its client was prepared to give further particulars. Despite this, no further particulars had been given by the time of the hearing of the applicant's motions.
Case: Hamilton v Oades [1989] HCA 21 ; (1989) 166 CLR 486
Outcome: cited
Hamilton v Oades [1989] HCA 21 ; (1989) 166 CLR 486 the High Court considered an application by an examinee to restrict questions that were asked of him to matters that were not the subject of pending criminal proceedings against him. The Deputy Registrar in the New South Wales Supreme Court declined to so restrict the examination. Review of the Deputy Registrar's decision was sought whereupon McLelland J, as his Honour then was, dismissed the examinee's application for an order restricting the examination. That decision was reversed on appeal to the Court of Appeal but restored following an appeal to the High Court. Mason CJ said at 497-498: '... In light of the purpose of the section, great weight must be given to the views of the liquidator when the court considers whether to order an examination ... The same approach must be taken by the court when it makes orders or gives directions in relation to an examination in progress. ... The very purpose of the section is to create a system of discovery, which may cause defences to be disclosed, for the purpose of bringing charges. The section gives to the liquidator rights not possessed by an ordinary litigant ... . In these circumstances it must be accepted that the section applies equally to proceedings which the liquidator "might be able to bring, proceedings he contemplates bringing, proceedings he has decided to bring, and proceedings he has already brought" ... To adopt the language of Kitto J in Mortimer v Brown [(1970) [1970] HCA 4 ; 122 CLR 493 at 496] , to hold otherwise "would render the provision relatively valueless in the very cases which call most loudly for investigation".
Case: New Zealand Steel (Aust) Pty Ltd v Burton (1994) 13 ACSR 610
Outcome: referred to
the coercive powers of s 596B were to be invoked for a purpose foreign to the purposes for which those powers were conferred, there would be an abuse of process (see per Hayne J, then of the Supreme Court of Victoria, in New Zealand Steel (Aust) Pty Ltd v Burton (1994) 13 ACSR 610 at 616).
Case: Hong Kong Bank of Australia Ltd v Murphy (1992) 28 NSWLR 512
Outcome: referred to
such as s 596B have a long history. In practice, in many cases the applicant for an examination order is the liquidator of a company which is being wound up. Liquidators often experience difficulty in obtaining necessary information concerning the affairs of the company, and they may not be able to depend upon former officers of the company to assist them in that regard. Indeed, they may wish to assert rights of the company against such former officers (see per Gleeson CJ, then of the Supreme Court of New South Wales, in Hong Kong Bank of Australia Ltd v Murphy (1992) 28 NSWLR 512 at 517).
Case: Meteyard v Love [2005] NSWCA 444 ; (2005) 65 NSWLR 36
Outcome: referred to
scope and operation of s 596B of the Act is such that it will inevitably intrude on private and commercial interests of third parties and require the disclosure of information which would, absent such a provision, be confidential. Despite those consequences, the provision must be given full effect, in accordance with its terms, reflecting a choice made by the Parliament as to the necessary balance between such private and commercial interests and the public interest in the orderly administration of companies under the control of external managers (per Basten JA, Beazley JA agreeing, in Meteyard v Love [2005] NSWCA 444 ; (2005) 65 NSWLR 36 ('Meteyard') at [136]). The statutory definition of 'examinable affairs' is so wide that it would be unwise to assume that matters of future intention are necessarily beyond its scope (per Santow JA in Meteyard at [10]). It would be equally unwise to assume that information already known to a liquidator should be excluded from questioning in respect of examinable affairs (per Santow JA in Meteyard at [11] and Basten JA at [139], Beazley JA agreeing).
Case: Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559
Outcome: cited
In relation to ground 1 of the notice of appeal, the respondent submitted that the Federal Magistrate was correct in holding that the Tribunal acted properly in finding that despite numerous members of her family being imputed with separatist political beliefs and actually being persecuted by Chinese authorities, no harm had befallen the appellant in the past as a consequence. Furthermore, it submitted, the Tribunal was entitled to take this into account in determining if the appellant had a "well-founded fear" of future persecution and that the Federal Magistrate was right to rely upon Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559. The Minister submitted that the question as to whether the harm (or potential harm) feared by the appellant was capable of constituting "persecution" for Convention purposes was a matter for the Tribunal, and that the Tribunal correctly assessed the question without falling into jurisdictional error. 44 In relation to ground 2 of the appeal, dealing with the appellant's religious beliefs, the respondent submitted that the Federal Magistrate dealt with this issue in detail and properly assessed this aspect of the appellant's claim on the basis that the appellant was an adherent of Islam and if returned to China she may continue to practise her religion. 50 It is, of course, relevant in determining whether there is a real chance that an event will occur for a particular reason in the future to consider whether similar events have or have not occurred in the past for the same or similar reasons. It was appropriate, therefore, for the Tribunal to determine whether or not the appellant herself had been subject to persecutory conduct for a Convention reason: Guo [1997] HCA 22 ; 191 CLR 559.
Case: American Cynamid v Ethicon Limited [1975] UKHL 1 ; (1975) AC 396
Outcome: applied
Federal Court is empowered to make interlocutory orders by s 23 Federal Court of Australia Act 1976 (Cth). The principles which govern the exercise of that power were set out recently by Stone J in Hexal Australia Pty Limited v Roche Therapeutics Inc [2005] FCA 1218 at [17] , namely: 1. That there is a serious question to be tried or a prima facie case such that if the evidence remains the same there is a probability that at a final hearing it will be entitled to relief. 2. That it will suffer irreparable harm for which damages will not be an adequate compensation, unless an injunction is granted. 3. That the balance of convenience favours the granting of an injunction. (See also Pharmacia Italia SPA v Pfizer (Perth) Pty Ltd v Interpharma Pty Ltd (2005) FCA 1675 per Sundberg J at [9]; Castlemaine Tooheys v State of South Australia [1986] HCA 58 ; (1986) 161 CLR 148 per Mason ACJ at [153]; and American Cynamid v Ethicon Limited [1975] UKHL 1 ; (1975) AC 396 per Lord Diplock at [406]-[407].) 1. Serious Question to be Tried
Case: Castlemaine Tooheys v State of South Australia [1986] HCA 58 ; (1986) 161 CLR 148
Outcome: applied
Federal Court is empowered to make interlocutory orders by s 23 Federal Court of Australia Act 1976 (Cth). The principles which govern the exercise of that power were set out recently by Stone J in Hexal Australia Pty Limited v Roche Therapeutics Inc [2005] FCA 1218 at [17] , namely: 1. That there is a serious question to be tried or a prima facie case such that if the evidence remains the same there is a probability that at a final hearing it will be entitled to relief. 2. That it will suffer irreparable harm for which damages will not be an adequate compensation, unless an injunction is granted. 3. That the balance of convenience favours the granting of an injunction. (See also Pharmacia Italia SPA v Pfizer (Perth) Pty Ltd v Interpharma Pty Ltd (2005) FCA 1675 per Sundberg J at [9]; Castlemaine Tooheys v State of South Australia [1986] HCA 58 ; (1986) 161 CLR 148 per Mason ACJ at [153]; and American Cynamid v Ethicon Limited [1975] UKHL 1 ; (1975) AC 396 per Lord Diplock at [406]-[407].) 1. Serious Question to be Tried