mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Felton v Mulligan (1971) 124 CLR 367
Outcome: cited
relation to s 39B(1A) of the Judiciary Act , the Court has jurisdiction if, relevantly, there is a "matter" "arising under" a law made by the Parliament: s 39B(1A)(c). This test is satisfied only if "the right or duty in question in the matter owes its existence to federal law or depends on federal law for its enforcement": R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett v Optiz (1945) 70 CLR 141 at 154 (Latham CJ), and Felton v Mulligan (1971) 124 CLR 367 at 388 (Windeyer J). The Guidelines' lack of statutory status means that a dispute as to whether Mr O'Neill applied them correctly, or accorded procedural fairness before making his decision, does not give rise to any such matter. The submissions of the applicants (respondents to the motion)
Case: Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401
Outcome: cited
while s 31A of the FCA Act (mutatis mutandis, s 17A of the FM Act) achieves nothing of significance in relation to migration cases, it is of general application and therefore affects all proceedings brought in the Court. The question of the precise meaning of s 31A of the FCA Act and s 17A of the FM Act and of any change they have made has already been the subject of numerous decisions in this Court and the Federal Magistrates Court. The most recent review of them of which I am aware is that of Driver FM on 19 March 2007 in Vivid Entertainment LLC v Digital Sinema Australia Pty Ltd [2007] FMCA 157 at [18] - [28] . The authorities to which his Honour referred are: Howard v Australian Fisheries Management Authority [2006] FMCA 975 ; MG Distribution Pty Ltd v Khan [2006] FMCA 666 ; Cate v International Flavours and Fragrances (Aust) Pty Ltd [2007] FMCA 36 ; Vans Inc v Offprice.Com.Au Pty Ltd [2006] FCA 137 ; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 701 IPR 146; Jewiss v Deputy Commissioner of Taxation [2006] FCA 1688 ; Alphapharm Pty Ltd v Merck &amp; Co Inc [2006] FCA 1227 ; Duncan v Lipscombe Child Care Services Inc [2006] FCA 458 ; (2006) 150 IR 471 ; Australian and International Pilots Association v Qantas Airways Ltd [2006] FCA 1441 ; Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in liq) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416 ; Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 ; Hicks v Ruddock [2007] FCA 299. Not one of these cases was a migration case. In other words, the task of exploring the meaning of s 31A has arisen in a wide range of the cases in the Federal Magistrates Court and this Court, with the striking exception of migration cases, no doubt for the reason that I mentioned earlier: the provision is of no practical importance in them.
Case: General Newspapers Pty Ltd v Telstra Corporation [1993] FCA 473 ; (1993) 45 FCR 164
Outcome: cited
Honours noted (at [78]) that while a decision, in order to be susceptible to review under the AD(JR) Act must be either expressly or by implication authorised or required by an enactment, requirement or authority is not alone sufficient. The further stipulation that the decision must be "of an administrative character" meant that there must be an affecting of legal rights and obligations. Their Honours said (at [80]): Do legal rights or duties owe in an immediate sense their existence to the decision or depend upon the presence of the decision for their enforcement [cf R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett at 154] ? To adapt what was said by Lehane J in Lewins [ ANU v Lewins at 103], does the decision in question derive from the enactment the capacity to affect legal rights and obligations? Are legal rights and obligations affected not under the general law but by virtue of the statute? [ General Newspapers Pty Ltd v Telstra Corporation [1993] FCA 473 ; (1993) 45 FCR 164 at 169]. Mr O'Neill's decision does not derive from the ITAA a capacity to affect legal rights and obligations. Nor do legal rights (of the Commissioner) or duties (of the applicants) in relation to the production of Documents 226 to 238 "owe in an immediate sense their existence to the decision, or depend upon the presence of the decision for their enforcement": Tang at [80]. It is O 33 r 12 and the general law that give the Commissioner procedural rights and impose on the applicants procedural obligations. Black CJ said (at 273) that where the sole source of authority for a decision is a general power of administration conferred by an enactment, the decision will be "unlikely to be one that is given force or effect by an enactment or by a principle of law applicable to the enactment". In saying this, the Chief Justice quoted (at 272) the following passage from the judgment of Davies and Einfeld JJ, with which Gummow J agreed, in General Newspapers Pty Ltd v Telstra Corporation at 172: The ADJR Act is thus concerned with decisions which, being authorised or required by an enactment, are given force or effect by the enactment or by a principle of law applicable to the enactment. On a broad view, the Commissioner is exercising public power in relation to the assessment and recovery of tax, although the right to issue a notice to produce under the FCRs is not itself such a power. The assessment and recovery of tax is radically different from, for example, conduct leading to the making of contracts and the making of them: see General Newspapers Pty Ltd v Telstra Corporation . I am not satisfied that the broad view referred to has no reasonable prospects of prevailing. There should be a final hearing, as soon as practicable, of the claim under s 39B(1) of the Judiciary Act . Unlike the debate relating to s 39B(1) , that relating to s 39B(1A)(c) was confined to the question of jurisdiction.
Case: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Outcome: cited
s 31A I must be satisfied that the applicants have no reasonable prospect of success, but as s 31A(3) makes clear, this does not mean that I must be satisfied that the proceeding is hopeless or bound to fail. I suggest that the legislature's intention in enacting s 31A was to lower the bar for obtaining summary judgment (including summary dismissal) below the level that had been fixed by such authorities as Dey v Victorian Railway Commissioners (1949) 78 CLR 62 at 91-92, and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129-130: see Lawrenson Light Metal Die Casting Pty Ltd (in liq) v Cosmick Pty Ltd [2006] FCA 753 at [15].
Case: Hicks v Ruddock [2007] FCA 299
Outcome: cited
while s 31A of the FCA Act (mutatis mutandis, s 17A of the FM Act) achieves nothing of significance in relation to migration cases, it is of general application and therefore affects all proceedings brought in the Court. The question of the precise meaning of s 31A of the FCA Act and s 17A of the FM Act and of any change they have made has already been the subject of numerous decisions in this Court and the Federal Magistrates Court. The most recent review of them of which I am aware is that of Driver FM on 19 March 2007 in Vivid Entertainment LLC v Digital Sinema Australia Pty Ltd [2007] FMCA 157 at [18] - [28] . The authorities to which his Honour referred are: Howard v Australian Fisheries Management Authority [2006] FMCA 975 ; MG Distribution Pty Ltd v Khan [2006] FMCA 666 ; Cate v International Flavours and Fragrances (Aust) Pty Ltd [2007] FMCA 36 ; Vans Inc v Offprice.Com.Au Pty Ltd [2006] FCA 137 ; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 701 IPR 146; Jewiss v Deputy Commissioner of Taxation [2006] FCA 1688 ; Alphapharm Pty Ltd v Merck &amp; Co Inc [2006] FCA 1227 ; Duncan v Lipscombe Child Care Services Inc [2006] FCA 458 ; (2006) 150 IR 471 ; Australian and International Pilots Association v Qantas Airways Ltd [2006] FCA 1441 ; Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in liq) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416 ; Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 ; Hicks v Ruddock [2007] FCA 299. Not one of these cases was a migration case. In other words, the task of exploring the meaning of s 31A has arisen in a wide range of the cases in the Federal Magistrates Court and this Court, with the striking exception of migration cases, no doubt for the reason that I mentioned earlier: the provision is of no practical importance in them.
Case: Howard v Australian Fisheries Management Authority [2006] FMCA 975
Outcome: cited
while s 31A of the FCA Act (mutatis mutandis, s 17A of the FM Act) achieves nothing of significance in relation to migration cases, it is of general application and therefore affects all proceedings brought in the Court. The question of the precise meaning of s 31A of the FCA Act and s 17A of the FM Act and of any change they have made has already been the subject of numerous decisions in this Court and the Federal Magistrates Court. The most recent review of them of which I am aware is that of Driver FM on 19 March 2007 in Vivid Entertainment LLC v Digital Sinema Australia Pty Ltd [2007] FMCA 157 at [18] - [28] . The authorities to which his Honour referred are: Howard v Australian Fisheries Management Authority [2006] FMCA 975 ; MG Distribution Pty Ltd v Khan [2006] FMCA 666 ; Cate v International Flavours and Fragrances (Aust) Pty Ltd [2007] FMCA 36 ; Vans Inc v Offprice.Com.Au Pty Ltd [2006] FCA 137 ; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 701 IPR 146; Jewiss v Deputy Commissioner of Taxation [2006] FCA 1688 ; Alphapharm Pty Ltd v Merck &amp; Co Inc [2006] FCA 1227 ; Duncan v Lipscombe Child Care Services Inc [2006] FCA 458 ; (2006) 150 IR 471 ; Australian and International Pilots Association v Qantas Airways Ltd [2006] FCA 1441 ; Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in liq) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416 ; Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 ; Hicks v Ruddock [2007] FCA 299. Not one of these cases was a migration case. In other words, the task of exploring the meaning of s 31A has arisen in a wide range of the cases in the Federal Magistrates Court and this Court, with the striking exception of migration cases, no doubt for the reason that I mentioned earlier: the provision is of no practical importance in them.
Case: Hutchins v Deputy Commissioner of Taxation (1996) 65 FCR 269
Outcome: followed
[84] of the joint judgment, their Honours referred to Hutchins v Deputy Commissioner of Taxation (1996) 65 FCR 269 (" Hutchins "). They referred with approval (at [84]) to a statement by Lockhart J in Hutchins (at 277) that the decision to vote at the meeting of creditors could not itself have conferred any benefit or imposed any disadvantage when it was made, and that any affecting of legal rights arose from the cumulative effect of the votes later cast at the meeting. The respondents submit that Mr O'Neill's decision should similarly be distinguished from the decision of a different officer of the ATO to issue the notice to produce. I do not accept this particular submission. Mr O'Neill's decision was in a different position from that with which Hutchins was concerned. Lockhart J was emphasising that the Commissioner's decision to vote against the motion could not advance matters until the motion was voted upon at the meeting of creditors. In the present case, a decision to lift the concession was provided for in the Guidelines and it was within the power of the Commissioner alone to access Documents 226 to 238. In substance, it was the Commissioner who decided both to lift the concession and to enforce his right, as a litigant, of access to Documents 226 to 238. If the Guidelines had been an Act, the provision for the decision to lift the concession would have been comparable to the provision of the making of a finding that a licensee was no longer a fit and proper person to hold a commercial licence, for which the Broadcasting Act 1942 (Cth) s 88(2) provided as the foundation of a decision to suspend or revoke such a licence, that was one of the decisions considered in ABT v Bond . What is important, however, is that the Guidelines are not an "enactment", and the decision does not, by reason of them or of any enactment, immediately affect legal rights and obligations. Mr O'Neill's decision would be reviewable as "a decision of an administrative character made ... under an enactment" if: (a) the ITAA provided for (in the relevant sense) the making of the Guidelines granting the concession; (b) the Guidelines provided for the granting of the concession and for the making of the decision to lift it as a condition precedent to the taking of action to compel the giving of access; (c) the Act or the Guidelines (the latter, within power) provided for the compelling of the giving of access. Hutchins , referred to at [73], has much in common with the present case. The decision impugned was a decision of the Deputy Commissioner of Taxation to vote against a motion put at a meeting of creditors convened under Pt X of the Bankruptcy Act 1966 (Cth). The application was made under the AD(JR) Act. At first instance, Jenkinson J had upheld an objection to competency. The applicant contended that the decision was made under one or more of ss 8, 208 and 209 of the ITAA.
Case: Jewiss v Deputy Commissioner of Taxation [2006] FCA 1688
Outcome: cited
while s 31A of the FCA Act (mutatis mutandis, s 17A of the FM Act) achieves nothing of significance in relation to migration cases, it is of general application and therefore affects all proceedings brought in the Court. The question of the precise meaning of s 31A of the FCA Act and s 17A of the FM Act and of any change they have made has already been the subject of numerous decisions in this Court and the Federal Magistrates Court. The most recent review of them of which I am aware is that of Driver FM on 19 March 2007 in Vivid Entertainment LLC v Digital Sinema Australia Pty Ltd [2007] FMCA 157 at [18] - [28] . The authorities to which his Honour referred are: Howard v Australian Fisheries Management Authority [2006] FMCA 975 ; MG Distribution Pty Ltd v Khan [2006] FMCA 666 ; Cate v International Flavours and Fragrances (Aust) Pty Ltd [2007] FMCA 36 ; Vans Inc v Offprice.Com.Au Pty Ltd [2006] FCA 137 ; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 701 IPR 146; Jewiss v Deputy Commissioner of Taxation [2006] FCA 1688 ; Alphapharm Pty Ltd v Merck &amp; Co Inc [2006] FCA 1227 ; Duncan v Lipscombe Child Care Services Inc [2006] FCA 458 ; (2006) 150 IR 471 ; Australian and International Pilots Association v Qantas Airways Ltd [2006] FCA 1441 ; Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in liq) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416 ; Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 ; Hicks v Ruddock [2007] FCA 299. Not one of these cases was a migration case. In other words, the task of exploring the meaning of s 31A has arisen in a wide range of the cases in the Federal Magistrates Court and this Court, with the striking exception of migration cases, no doubt for the reason that I mentioned earlier: the provision is of no practical importance in them.
Case: Lawrenson Light Metal Die Casting Pty Ltd (in liq) v Cosmick Pty Ltd [2006] FCA 753
Outcome: cited
s 31A I must be satisfied that the applicants have no reasonable prospect of success, but as s 31A(3) makes clear, this does not mean that I must be satisfied that the proceeding is hopeless or bound to fail. I suggest that the legislature's intention in enacting s 31A was to lower the bar for obtaining summary judgment (including summary dismissal) below the level that had been fixed by such authorities as Dey v Victorian Railway Commissioners (1949) 78 CLR 62 at 91-92, and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129-130: see Lawrenson Light Metal Die Casting Pty Ltd (in liq) v Cosmick Pty Ltd [2006] FCA 753 at [15].
Case: Lemoto v Able Technical Pty Ltd [2005] NSWCA 153 ; (2005) 63 NSWLR 300
Outcome: discussed
do not propose to add greatly to the discussion of the meaning and effect of s 31A. In the United Kingdom it has been held in the context of the similar rule 24.2 of the CPRs noted at [53] above, that the expressions "no real prospect of succeeding" and "no real prospect of successfully defending" require attention to be given to real, as opposed to "fanciful" or "merely arguable" prospects: Swain v Hillman [2001] 1 All ER 91 at 92; Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1 at [90], [95], [133] [134], [158] [162]; ED &amp; F Man Products Ltd v Patel [2003] EWCA Civ 472 at [8] . The Queensland Court of Appeal has similarly held, following Swain v Hillman and Three Rivers District Council v Governor and Company of the Bank of England , that the "no reasonable prospects of success" test requires the court to determine whether there are "real" as opposed to "fanciful" prospects of success: Deputy Commissioner of Taxation v Salcedo [2005] QCA 227 ; [2005] 2 Qd R 232 at 235. The New South Wales Court of Appeal had to consider the expression "reasonable prospects of success" as it occurred in s 198J of the Legal Profession Act 1987 (NSW) in Lemoto v Able Technical Pty Ltd [2005] NSWCA 153 ; (2005) 63 NSWLR 300. That section prohibited a solicitor or barrister from providing legal services on a claim or defence of a claim for damages unless the solicitor or barrister reasonably believed on the basis of provable facts and a reasonably arguable view of the law that the claim or the defence had reasonable prospects of success. Later subsections elaborated on the meaning of the prohibition. This fact, coupled with the fact that the prohibition was directed to the reasonable belief of the solicitor or barrister, renders the discussion not directly relevant to the summary dismissal context in which the court is required to determine if there are reasonable prospects of success following an inter partes hearing.
Case: LNC Industries Ltd v BMW (Aust) Ltd [1983] HCA 31 ; (1983) 151 CLR 575
Outcome: cited
some respects, the availability of review under s 39B(1A)(c) of the Judiciary Act is wider, and in some respects narrower, than that available under the AD(JR) Act. What is important for present purposes is that the notion of a "matter ... arising under any laws made by the Parliament" in s 39B(1)(c) of the Judiciary Act is wider than that of a "decision ... made under an enactment" of s 5 of the AD(JR) Act. Reference may be made to such cases as LNC Industries Ltd v BMW (Aust) Ltd [1983] HCA 31 ; (1983) 151 CLR 575 , Australian Solar Mesh Sales Pty Ltd v Anderson [2000] FCA 864 ; (2000) 101 FCR 1 , and ACTEW Corporation Ltd v Pangallo [2002] FCAFC 325 ; (2002) 127 FCR 1 , for an indication of the breadth of the concept of a matter arising under any laws made by the Parliament.
Case: ED &amp; F Man Products Ltd v Patel [2003] EWCA Civ 472 
Outcome: followed
do not propose to add greatly to the discussion of the meaning and effect of s 31A. In the United Kingdom it has been held in the context of the similar rule 24.2 of the CPRs noted at [53] above, that the expressions "no real prospect of succeeding" and "no real prospect of successfully defending" require attention to be given to real, as opposed to "fanciful" or "merely arguable" prospects: Swain v Hillman [2001] 1 All ER 91 at 92; Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1 at [90], [95], [133] [134], [158] [162]; ED &amp; F Man Products Ltd v Patel [2003] EWCA Civ 472 at [8] . The Queensland Court of Appeal has similarly held, following Swain v Hillman and Three Rivers District Council v Governor and Company of the Bank of England , that the "no reasonable prospects of success" test requires the court to determine whether there are "real" as opposed to "fanciful" prospects of success: Deputy Commissioner of Taxation v Salcedo [2005] QCA 227 ; [2005] 2 Qd R 232 at 235. The New South Wales Court of Appeal had to consider the expression "reasonable prospects of success" as it occurred in s 198J of the Legal Profession Act 1987 (NSW) in Lemoto v Able Technical Pty Ltd [2005] NSWCA 153 ; (2005) 63 NSWLR 300. That section prohibited a solicitor or barrister from providing legal services on a claim or defence of a claim for damages unless the solicitor or barrister reasonably believed on the basis of provable facts and a reasonably arguable view of the law that the claim or the defence had reasonable prospects of success. Later subsections elaborated on the meaning of the prohibition. This fact, coupled with the fact that the prohibition was directed to the reasonable belief of the solicitor or barrister, renders the discussion not directly relevant to the summary dismissal context in which the court is required to determine if there are reasonable prospects of success following an inter partes hearing.
Case: MG Distribution Pty Ltd v Khan [2006] FMCA 666
Outcome: cited
while s 31A of the FCA Act (mutatis mutandis, s 17A of the FM Act) achieves nothing of significance in relation to migration cases, it is of general application and therefore affects all proceedings brought in the Court. The question of the precise meaning of s 31A of the FCA Act and s 17A of the FM Act and of any change they have made has already been the subject of numerous decisions in this Court and the Federal Magistrates Court. The most recent review of them of which I am aware is that of Driver FM on 19 March 2007 in Vivid Entertainment LLC v Digital Sinema Australia Pty Ltd [2007] FMCA 157 at [18] - [28] . The authorities to which his Honour referred are: Howard v Australian Fisheries Management Authority [2006] FMCA 975 ; MG Distribution Pty Ltd v Khan [2006] FMCA 666 ; Cate v International Flavours and Fragrances (Aust) Pty Ltd [2007] FMCA 36 ; Vans Inc v Offprice.Com.Au Pty Ltd [2006] FCA 137 ; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 701 IPR 146; Jewiss v Deputy Commissioner of Taxation [2006] FCA 1688 ; Alphapharm Pty Ltd v Merck &amp; Co Inc [2006] FCA 1227 ; Duncan v Lipscombe Child Care Services Inc [2006] FCA 458 ; (2006) 150 IR 471 ; Australian and International Pilots Association v Qantas Airways Ltd [2006] FCA 1441 ; Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in liq) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416 ; Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 ; Hicks v Ruddock [2007] FCA 299. Not one of these cases was a migration case. In other words, the task of exploring the meaning of s 31A has arisen in a wide range of the cases in the Federal Magistrates Court and this Court, with the striking exception of migration cases, no doubt for the reason that I mentioned earlier: the provision is of no practical importance in them.