mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Emu Bay Railway Company Limited v Federal Commissioner of Taxation [1944] HCA 28 ; (1944) 71 CLR 596
Outcome: referred to
Neither Emu Bay Railway Company Limited v Federal Commissioner of Taxation [1944] HCA 28 ; (1944) 71 CLR 596 nor Federal Commissioner of Taxation v Firth [2002] FCAFC 95 ; (2002) 120 FCR 450 is a useful analogy with this case. 112 The taxpayer in Emu Bay Railway Company 71 CLR had issued a debenture, the interest on which was only payable out of its 'net income' (akin to profit). It sought to deduct interest payments on this debenture under s 51(l), even though none were made because the company had no net income. All that was decided in that case was that no interest expense was 'incurred' because the interest was contingent on net income, of which there was none.
Case: Federal Commissioner of Taxation v Comber (1986) 10 FCR 88 
Outcome: cited
To the extent DAPFI relies on the 'deeming' effect of the provisions of Div 974, it is important to note that those 'deeming' provisions should be construed 'strictly and only for the purpose for which they are resorted to': Federal Commissioner of Taxation v Comber (1986) 10 FCR 88 at 96; East Finchley Pty Ltd v Federal Commissioner of Taxation (1989) 20 ATR 1623 at 1643.
Case: Federal Commissioner of Taxation v Lamesa Holdings BV (1997) 77 FCR 597 
Outcome: cited
DAPFI referred to the authoritative exposition of the relevant principles in the judgment of McHugh J in Applicant A 190 CLR applied to the interpretation of double tax treaties in Federal Commissioner of Taxation v Lamesa Holdings BV (1997) 77 FCR 597. In McDermott Industries (Aust) Pty Ltd v Federal Commissioner of Taxation [2005] FCAFC 67 ; (2005) 142 FCR 134 , a Full Court of Hill, Sundberg and Stone JJ (at [38]) summarised those principles in four sub-paragraphs: '. Regard should be had to the "four corners of the actual text". The text must be given primacy in the interpretation process. The ordinary meaning of the words used are presumed to be "the authentic representation of the parties' intentions": Applicant A [at 143] . . The courts must, however, in addition to having regard to the text, have regard as well to the context, object and purpose of the treaty provisions. The approach to interpretation involves a holistic approach. . International agreements should be interpreted "liberally". . Treaties often fail to demonstrate the precision of domestic legislation and should thus not be applied with "taut logical precision".'
Case: Federal Commissioner of Taxation v Firth [2002] FCAFC 95 ; (2002) 120 FCR 450
Outcome: referred to
Neither Emu Bay Railway Company Limited v Federal Commissioner of Taxation [1944] HCA 28 ; (1944) 71 CLR 596 nor Federal Commissioner of Taxation v Firth [2002] FCAFC 95 ; (2002) 120 FCR 450 is a useful analogy with this case. 113 Firth 120 FCR also concerned the deductibility of interest, in that case on a so-called 'capital protected' loan. The case does not bear on the interpretation of 'determined with reference to profits' in the Treaty. 114 The Commissioner submitted that the expression 'determined with reference to profits' is well able to accommodate a situation, such as this, where the calculation of the amount paid depends entirely upon the profits (here, the Adjusted Net Income) of the issuer. 115 In the Commissioner's submissions at para [104] above, it is contended that: (a) The whole of each partnership distribution was required by the terms of the partnership deed to be determined with reference to profits; and (b) there is no mechanism in the Treaty (or elsewhere) which permits apportionment.
Case: Roadshow Distributors Pty Ltd v Commissioner of State Revenue [1998] 1 VR 523 
Outcome: cited
As to the Commissioner's second contention, the absence of express provision for apportionment in Art 11(9)(a) is not an exclusion or prohibition of an apportionment. A global sum payable under a contract may be apportioned where the commercial reality is that only part of the payment can be regarded as being determined with reference to profits; the apportionment should be done on the basis of a realistic estimate on sensible commercial grounds (cf., Roadshow Distributors Pty Ltd v Commissioner of State Revenue [1998] 1 VR 523 at 529). This approach is all the more appropriate in the case of a treaty, which should not be construed in a narrow technical way. 118 Here the commercial reality is that the whole payment was an indirect receipt of the interest paid by CBA, and so was interest calculated without regard to any substantive 'profit' calculation. But insofar as there is a calculation with reference to profits, only part of the payment is so calculated, because what is payable includes a basic interest amount identified in the formula, and the apportionment can be readily done in view of the way the distributions were calculated. 119 For my part, I cannot accept the proposition that the 'commercial reality' (whatever that means, but presumably a synonym for 'economic substance') is that the whole payment (the distribution from Industrie LP to DAPFI) was an indirect receipt of the interest paid by CBA. For a start, Industrie LP was not a mere interposed conduit between CBA and DAPFI. Indeed, Industrie LP did not lend to CBA; it invested the whole of its funds in another NSW limited partnership, Luca LP: see [11] above. And even Luca LP did not lend the whole of its funds to CBA; $2 million was lent at interest to other financial institutions.
Case: Thiel v Commissioner of Taxation [1990] HCA 37 ; (1990) 171 CLR 338 
Outcome: cited
The principles of construction of international tax treaties are not in dispute: Thiel v Commissioner of Taxation [1990] HCA 37 ; (1990) 171 CLR 338 at 356 357 per McHugh J; Unisys Corporation Inc v Federal Commissioner of Taxation (2002) ATC 5146 ; Applicant 'A' v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225. Those principles permit the object and purpose of a treaty to be considered in construing it, where necessary.
Case: Unisys Corporation Inc v Federal Commissioner of Taxation (2002) ATC 5146 
Outcome: cited
The principles of construction of international tax treaties are not in dispute: Thiel v Commissioner of Taxation [1990] HCA 37 ; (1990) 171 CLR 338 at 356 357 per McHugh J; Unisys Corporation Inc v Federal Commissioner of Taxation (2002) ATC 5146 ; Applicant 'A' v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225. Those principles permit the object and purpose of a treaty to be considered in construing it, where necessary.
Case: Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1981] HCA 7 ; (1981) 148 CLR 457
Outcome: referred to
The principles that govern associated or accrued jurisdiction have been discussed by the High Court of Australia in a number of decisions, including Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1981] HCA 7 ; (1981) 148 CLR 457 at 474-5, Fencott v Muller [1983] HCA 12 ; (1983) 152 CLR 570 (" Fencott ") at 607-8, Stack v Coast Securities (No 9) Pty Ltd [1983] HCA 36 ; (1983) 154 CLR 261 at 294, Re Wakim; Ex parte McNally [1999] HCA 27 ; (1999) 198 CLR 511 at 585-6, and Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1 ; (2001) 204 CLR 559 at 585-6.
Case: Fencott v Muller [1983] HCA 12 ; (1983) 152 CLR 570
Outcome: referred to
The principles that govern associated or accrued jurisdiction have been discussed by the High Court of Australia in a number of decisions, including Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1981] HCA 7 ; (1981) 148 CLR 457 at 474-5, Fencott v Muller [1983] HCA 12 ; (1983) 152 CLR 570 (" Fencott ") at 607-8, Stack v Coast Securities (No 9) Pty Ltd [1983] HCA 36 ; (1983) 154 CLR 261 at 294, Re Wakim; Ex parte McNally [1999] HCA 27 ; (1999) 198 CLR 511 at 585-6, and Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1 ; (2001) 204 CLR 559 at 585-6. 10 In Fencott , Mason, Murphy, Brennan and Deane JJ, in a joint judgment, sought to clarify what would be considered a "separate and disparate" matter. At 607-608, their Honours said: "Perhaps it is not possible to devise so precise a formula that its application to the facts of any controversy would determine accurately what claims are disparate and what claims are not. Whatever formula be adopted as a guide - and the formula of 'common transactions and facts' is a sound guide for the purpose - it must result in leaving outside the ambit of a matter a 'completely disparate claim constituting in substance a separate proceeding', a non-federal matter which is 'completely separate and distinct from the matter which attracted federal jurisdiction', or 'some distinct and unrelated non-federal claim'" (Citations omitted) Their Honours continued at 608: "The scope of a controversy which constitutes a matter is not ascertained merely by reference to the proceedings which a party may institute, but may be illuminated by the conduct of those proceedings and especially by the pleadings in which the issues in controversy are defined and the claims for relief are set out. But in the end, it is a matter of impression and of practical judgment whether a non-federal claim and a federal claim joined in a proceeding are within the scope of one controversy and thus within the ambit of a matter." In short, this Court will have jurisdiction to hear and determine the cross-claim in so far as it concerns the claimed sixth publication defamation, even though the claim raises no federal claim, if it shares a "common substratum of facts" with the principal proceeding, or if the claims are related in the sense that the determination of one is essential for the determination of the other.
Case: Stack v Coast Securities (No 9) Pty Ltd [1983] HCA 36 ; (1983) 154 CLR 261
Outcome: referred to
The principles that govern associated or accrued jurisdiction have been discussed by the High Court of Australia in a number of decisions, including Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1981] HCA 7 ; (1981) 148 CLR 457 at 474-5, Fencott v Muller [1983] HCA 12 ; (1983) 152 CLR 570 (" Fencott ") at 607-8, Stack v Coast Securities (No 9) Pty Ltd [1983] HCA 36 ; (1983) 154 CLR 261 at 294, Re Wakim; Ex parte McNally [1999] HCA 27 ; (1999) 198 CLR 511 at 585-6, and Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1 ; (2001) 204 CLR 559 at 585-6.
Case: Re Wakim; Ex parte McNally [1999] HCA 27 ; (1999) 198 CLR 511
Outcome: referred to
The principles that govern associated or accrued jurisdiction have been discussed by the High Court of Australia in a number of decisions, including Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1981] HCA 7 ; (1981) 148 CLR 457 at 474-5, Fencott v Muller [1983] HCA 12 ; (1983) 152 CLR 570 (" Fencott ") at 607-8, Stack v Coast Securities (No 9) Pty Ltd [1983] HCA 36 ; (1983) 154 CLR 261 at 294, Re Wakim; Ex parte McNally [1999] HCA 27 ; (1999) 198 CLR 511 at 585-6, and Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1 ; (2001) 204 CLR 559 at 585-6.
Case: Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1 ; (2001) 204 CLR 559
Outcome: referred to
The principles that govern associated or accrued jurisdiction have been discussed by the High Court of Australia in a number of decisions, including Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1981] HCA 7 ; (1981) 148 CLR 457 at 474-5, Fencott v Muller [1983] HCA 12 ; (1983) 152 CLR 570 (" Fencott ") at 607-8, Stack v Coast Securities (No 9) Pty Ltd [1983] HCA 36 ; (1983) 154 CLR 261 at 294, Re Wakim; Ex parte McNally [1999] HCA 27 ; (1999) 198 CLR 511 at 585-6, and Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1 ; (2001) 204 CLR 559 at 585-6.
Case: Hunt Australia Pty Ltd v Davidson's Arnhemland Safaris (2000) 179 ALR 738
Outcome: discussed
The respondents relied on Hunt Australia Pty Ltd v Davidson's Arnhemland Safaris (2000) 179 ALR 738 (" Hunt ") in support of the proposition that this proposed claim fell within the associated jurisdiction. In Hunt , a Full Court held that, on the facts of that case, a defamation claim was not completely separate and distinct from a claim under s 52 of the Trade Practices Act 1974 (Cth) and therefore the court had jurisdiction to decide it. The circumstances of Hunt , though different, are not completely dissimilar to the present case. The parties in Hunt were competitors and the dominant purpose of the defamatory publication was, so the court at first instance found, to injure the other party. The Court held that there was a common substratum of facts even though the publication that gave rise to the misleading and deceptive conduct claim was separate from the publication that gave rise to the defamation claim: see Hunt at 746 [30]. 12 I accept that the alleged sixth publication forms part of the one controversy and, for the reasons I am about to give, can be said to arise out of the same substratum of facts. The respondents' case is that the applicants have waged a campaign of defamatory conduct against them as part of the applicants' attempt to seize market share from the respondents. The cause of action with respect to the sixth publication is related to the other defamation claims pleaded by them. Similar factual and legal issues arise in respect of all the respondents' defamation claims. The applicants conceded that at least some of the respondents' defamation claims arise out of the same circumstances as the federal matters pleaded by them. In any case, as already noted, the applicants no longer contest the court's jurisdiction over the first to fifth defamation claims. I can discern no relevant distinction between the claim with respect to the sixth publication and the other claims. It is to be borne in mind that there is an issue as to whether the applicants were motivated by express malice in making the first publication; and there is a common temporal connection with respect to all the defamation claims and the remaining issues in the proceeding. 13 Accordingly, I would grant leave to the respondents to amend their pleading in the manner they have sought.
Case: Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718
Outcome: referred to
As noted earlier, the applicants also sought an order for the separate determination of certain questions under O 29 r 2 of the Federal Court Rules . The principles that govern the circumstances in which an order of this kind may be made are well established. They are discussed by Branson J in Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718 at [7] and [8] and by French J in Olbers Co Ltd v Commonwealth (No 3) [2003] FCA 651 at [7] . In discussion in court today, the parties agreed upon what I consider, in accordance with these principles, to be an appropriate separation of the questions that arise for determination in the proceeding. Accordingly, I would make the order sought in the terms discussed in court.
Case: Olbers Co Ltd v Commonwealth (No 3) [2003] FCA 651
Outcome: referred to
As noted earlier, the applicants also sought an order for the separate determination of certain questions under O 29 r 2 of the Federal Court Rules . The principles that govern the circumstances in which an order of this kind may be made are well established. They are discussed by Branson J in Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718 at [7] and [8] and by French J in Olbers Co Ltd v Commonwealth (No 3) [2003] FCA 651 at [7] . In discussion in court today, the parties agreed upon what I consider, in accordance with these principles, to be an appropriate separation of the questions that arise for determination in the proceeding. Accordingly, I would make the order sought in the terms discussed in court.
Case: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) ALR 162
Outcome: followed
The information which it is claimed should have been provided is not specified in the Notice of Appeal. Insofar as it relates to the relationship between the Hong Kong police and the PSB, such information is regarded as country information; that is, it is information upon which the Tribunal may take cognisance and pursuant to s 424A(3) there is no obligation upon it to furnish such information to the appellant. Had the Tribunal relied on material other than country information which had not been furnished to the appellant, and had not been provided by the appellant to the Tribunal, the Tribunal would have been obliged to provide such information to the appellant: see SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) ALR 162 per Gleeson CJ at [5]. However, in this instance there is simply no such material relied upon by the Tribunal. 21 At the hearing before me the appellant sought to rely upon several documents purportedly issued by the PSB. These documents comprised of an arrest warrant, a 'wanted' notice, purportedly arising from his importation of bibles into the PRC, and a certificate of baptism. The appellant did not produce the originals of such documents and said that they were at home. He also referred the Court to an affidavit but he did not rely upon it. 22 The three documents were not placed before the Tribunal and it is unclear whether they were placed before Emmett FM as Her Honour's judgment does not refer to them, and the transcript of the hearing before Her Honour has not been tendered. 31 The Court notes that consistent with the decision of the High Court in SAAP the Refugee Review Tribunal should be joined as a second respondent. 32 The first respondent has sought an order that the appellant pay its costs in the sum of $1700. Since this is within a realistic range for costs the Court will make such order. I certify that the preceding thirty- two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate: Dated: 30 November 2006 Counsel for the Respondent: S McNaughton Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 24 November 2006 Date of Judgment: 30 November 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1627.html
Case: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749
Outcome: referred to
No evidence has been provided to support the claim of prejudice and the appellant merely said that the Tribunal had made a judgment 'out of its own mind' rather than upon the evidence. The principles relating to allegations of bias were considered in SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749. In that decision the Full Court made it plain that allegations of bias are serious and should be clearly alleged and proved (see at [43]). The allegations in the present case are unsupported by any evidence and accordingly this ground must be dismissed.
Case: SZAJB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 782
Outcome: referred to
Although the function of this Court is to review purported errors of law of the Federal Magistrate rather than those of the Tribunal: see SZAJB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 782 at [4] , the Court nevertheless allowed the tender of the documents in order to understand the argument of the appellant. 25 The appellant was asked why he had not produced the three documents to the Tribunal. The appellant claimed that he was not given enough time to do so. He also claimed that he was too scared to produce them. In fact, the Tribunal questioned him extensively in relation to the very issues which are the subject of the documents, namely the appellant's alleged involvement in the activity of importing bibles into the PRC. 26 The appellant did not argue that the Tribunal erred in finding that he was detained in the PRC for a short period only because he happened to be at his friend's home when the PSB called. Nor did he dispute the Tribunal's finding that the PSB had not questioned him in relation to the smuggling or importing of bibles to the PRC and that when they realised he was a visitor from Hong Kong they released him. Accordingly, the Tribunal correctly concluded that the appellant was not a person of interest to the PSB.
Case: Bayne v Baillieu; Bayne v Riggall [1908] HCA 39 ; (1908) 6 CLR 382
Outcome: cited
Court also has an implied jurisdiction to set aside a bankruptcy notice as an abuse of process: Re Sterling; Ex parte Esanda Ltd [1980] FCA 61 ; (1980) 44 FLR 125. An abuse of process may be made out if the purpose in issuing the bankruptcy notice is to put pressure on a debtor to pay the debt rather than to invoke the Court's jurisdiction in relation to insolvency: Brunninghausen v Glavanics [1998] FCA 230 ; Killoran v Duncan [1999] FCA 1574 at [12] per Gyles J. See also: Maxwell-Smith v S &amp; E Hall Pty Ltd [2006] FCA 825 , 233 ALR 81 ; Cavoli v Etl [2007] FCA 1191 at [17] , 5 ABC(NS) 363 at 369 per Heerey J; Slack v Bottoms English Solicitors [2002] FCA 1445 at [15] to [18] per Spender J; Davidova v Murphy [2009] FCA 601 at [88] . It is also an abuse of process for a judgment creditor to pursue bankruptcy proceedings " for the purpose of stifling litigation ": Bayne v Baillieu; Bayne v Riggall [1908] HCA 39 ; (1908) 6 CLR 382 at 396 per Griffith CJ.
Case: Brunninghausen v Glavanics [1998] FCA 230
Outcome: cited
Court also has an implied jurisdiction to set aside a bankruptcy notice as an abuse of process: Re Sterling; Ex parte Esanda Ltd [1980] FCA 61 ; (1980) 44 FLR 125. An abuse of process may be made out if the purpose in issuing the bankruptcy notice is to put pressure on a debtor to pay the debt rather than to invoke the Court's jurisdiction in relation to insolvency: Brunninghausen v Glavanics [1998] FCA 230 ; Killoran v Duncan [1999] FCA 1574 at [12] per Gyles J. See also: Maxwell-Smith v S &amp; E Hall Pty Ltd [2006] FCA 825 , 233 ALR 81 ; Cavoli v Etl [2007] FCA 1191 at [17] , 5 ABC(NS) 363 at 369 per Heerey J; Slack v Bottoms English Solicitors [2002] FCA 1445 at [15] to [18] per Spender J; Davidova v Murphy [2009] FCA 601 at [88] . It is also an abuse of process for a judgment creditor to pursue bankruptcy proceedings " for the purpose of stifling litigation ": Bayne v Baillieu; Bayne v Riggall [1908] HCA 39 ; (1908) 6 CLR 382 at 396 per Griffith CJ.
Case: Cavoli v Etl [2007] FCA 1191 , 5 ABC(NS) 363
Outcome: cited
Court also has an implied jurisdiction to set aside a bankruptcy notice as an abuse of process: Re Sterling; Ex parte Esanda Ltd [1980] FCA 61 ; (1980) 44 FLR 125. An abuse of process may be made out if the purpose in issuing the bankruptcy notice is to put pressure on a debtor to pay the debt rather than to invoke the Court's jurisdiction in relation to insolvency: Brunninghausen v Glavanics [1998] FCA 230 ; Killoran v Duncan [1999] FCA 1574 at [12] per Gyles J. See also: Maxwell-Smith v S &amp; E Hall Pty Ltd [2006] FCA 825 , 233 ALR 81 ; Cavoli v Etl [2007] FCA 1191 at [17] , 5 ABC(NS) 363 at 369 per Heerey J; Slack v Bottoms English Solicitors [2002] FCA 1445 at [15] to [18] per Spender J; Davidova v Murphy [2009] FCA 601 at [88] . It is also an abuse of process for a judgment creditor to pursue bankruptcy proceedings " for the purpose of stifling litigation ": Bayne v Baillieu; Bayne v Riggall [1908] HCA 39 ; (1908) 6 CLR 382 at 396 per Griffith CJ.