mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: One.Tel Ltd v Commissioner of Taxation [2000] FCA 270 ; (2000) 101 FCR 548
Outcome: discussed
A court should not engage upon a determination of the merits of the case where the only outstanding claim is as to costs. See Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6 ; (1997) 186 CLR 622 and One.Tel Ltd v Commissioner of Taxation [2000] FCA 270 ; (2000) 101 FCR 548 at 552-553. Those cases also demonstrate that a court may inquire as to the reasonableness of the conduct of the parties to ascertain whether or not orders for costs should be made. Those cases would have no point if it were open to a party to ask the court to make a judgment in the very general form suggested by counsel. That in the present actions against Giant Marine, the Adsteam payments have disposed of all issues other than costs appears from the decision of the High Court in Baxter v Obacelo Pty Ltd [2001] HCA 66 ; (2001) 205 CLR 635 per Gleeson CJ and Callinan J at [38], [39], [40], [43], [46] and [47] and per Gummow and Hayne JJ at [55] and [56]. In particular it should be noted that Gummow and Hayne JJ approved the statement of "general principle" contained in the passage cited at [56] from the judgment of Auld LJ in Jameson v Central Electricity Generating Board [1998] QB 323. That general principle is: Where accord and satisfaction cannot be relied upon, as where a claimant settles with only one of two concurrent tortfeasors, the tortfeasor facing a claim will nevertheless have a defence if the plaintiff's settlement with the other has fully compensated him for the separate wrongs done to him. 18 Finally, the plaintiffs seek to distinguish Lai Qin and One.Tel upon the basis that they presently ask for summary judgment or judgment on admissions and not a trial. I see no merit in that argument. In preparing for such an application costs will be incurred by both sides. In some cases those costs may be relatively insignificant. In others they may be substantial. The policy considerations supporting the decisions to which I have referred are as relevant to these applications as they are to trials. 20 The plaintiffs submit that if they are not entitled to summary judgment they are nonetheless entitled, in claiming costs, to seek to demonstrate that they would probably have won had the actions gone to judgment. They rely on the same matters as they rely upon in connection with the summary judgment application plus some aspects of the evidence filed in anticipation of a trial. Their position seems to be that Giant Marine ought to have responded to that evidence, and that its failure to do so demonstrates that their evidence ought to be accepted. There is an incongruity between such an approach and the decisions in Lai Qin and One.Tel to which I have previously referred. If the parties are to call and cross-examine witnesses, then the process starts to look very much like a trial on the merits for the sole purpose of deciding questions of costs. The plaintiffs' approach also ignores the possibility that even in the absence of contrary evidence, their evidence may have been discredited in cross-examination.
Case: Baxter v Obacelo Pty Ltd [2001] HCA 66 ; (2001) 205 CLR 635
Outcome: applied
A court should not engage upon a determination of the merits of the case where the only outstanding claim is as to costs. See Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6 ; (1997) 186 CLR 622 and One.Tel Ltd v Commissioner of Taxation [2000] FCA 270 ; (2000) 101 FCR 548 at 552-553. Those cases also demonstrate that a court may inquire as to the reasonableness of the conduct of the parties to ascertain whether or not orders for costs should be made. Those cases would have no point if it were open to a party to ask the court to make a judgment in the very general form suggested by counsel. That in the present actions against Giant Marine, the Adsteam payments have disposed of all issues other than costs appears from the decision of the High Court in Baxter v Obacelo Pty Ltd [2001] HCA 66 ; (2001) 205 CLR 635 per Gleeson CJ and Callinan J at [38], [39], [40], [43], [46] and [47] and per Gummow and Hayne JJ at [55] and [56]. In particular it should be noted that Gummow and Hayne JJ approved the statement of "general principle" contained in the passage cited at [56] from the judgment of Auld LJ in Jameson v Central Electricity Generating Board [1998] QB 323. That general principle is: Where accord and satisfaction cannot be relied upon, as where a claimant settles with only one of two concurrent tortfeasors, the tortfeasor facing a claim will nevertheless have a defence if the plaintiff's settlement with the other has fully compensated him for the separate wrongs done to him.
Case: Jameson v Central Electricity Generating Board [1998] QB 323
Outcome: applied
A court should not engage upon a determination of the merits of the case where the only outstanding claim is as to costs. See Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6 ; (1997) 186 CLR 622 and One.Tel Ltd v Commissioner of Taxation [2000] FCA 270 ; (2000) 101 FCR 548 at 552-553. Those cases also demonstrate that a court may inquire as to the reasonableness of the conduct of the parties to ascertain whether or not orders for costs should be made. Those cases would have no point if it were open to a party to ask the court to make a judgment in the very general form suggested by counsel. That in the present actions against Giant Marine, the Adsteam payments have disposed of all issues other than costs appears from the decision of the High Court in Baxter v Obacelo Pty Ltd [2001] HCA 66 ; (2001) 205 CLR 635 per Gleeson CJ and Callinan J at [38], [39], [40], [43], [46] and [47] and per Gummow and Hayne JJ at [55] and [56]. In particular it should be noted that Gummow and Hayne JJ approved the statement of "general principle" contained in the passage cited at [56] from the judgment of Auld LJ in Jameson v Central Electricity Generating Board [1998] QB 323. That general principle is: Where accord and satisfaction cannot be relied upon, as where a claimant settles with only one of two concurrent tortfeasors, the tortfeasor facing a claim will nevertheless have a defence if the plaintiff's settlement with the other has fully compensated him for the separate wrongs done to him.
Case: Bankers Trust International Ltd v Todd Shipyards Corporation; "The Halcyon Isle" [1981] AC 221
Outcome: cited
In any event the plaintiffs may face substantial difficulty in seeking to establish their claims to maritime liens. They assert that their liens are for damage done to the vessels by the oil spillage. Such a lien is recognized by subs 15(2) of the Admiralty Act and in the textbooks and cases dealing with maritime liens. See, for example, Bankers Trust International Ltd v Todd Shipyards Corporation; "The Halcyon Isle" [1981] AC 221 at 232-233. However the circumstances in which a lien arises for "damage done by a ship" are limited. Currie v M'Knight [1897] AC 97 establishes that the damage must be "the fault of the ship itself", that is the ship against which liability is alleged. See also the observations of Lord Herschell at 108 and Lord Morris at 109-110. In "The Eschersheim " [1976] 1 WLR 430 at 438 Lord Diplock applied the decision in Currie v M'Knight in construing a statutory provision similar to para 4(3)(a) of the Admiralty Act . The facts of that case were similar to those in the present actions. In Opal Maritime Agencies Pty Ltd v Proceeds of Sale of Vessel MV "Skulptor Konenkov " [2000] FCA 507 ; (2000) 172 ALR 481 , the Full Court applied " The Eschersheim ", although in a somewhat different context. These cases might suggest that in the present case, the damage caused by the tug was not damage done by Global Peace which would give rise to such maritime liens. However it is not necessary to take the matter any further.
Case: Currie v M'Knight [1896] AC 97
Outcome: considered
In any event the plaintiffs may face substantial difficulty in seeking to establish their claims to maritime liens. They assert that their liens are for damage done to the vessels by the oil spillage. Such a lien is recognized by subs 15(2) of the Admiralty Act and in the textbooks and cases dealing with maritime liens. See, for example, Bankers Trust International Ltd v Todd Shipyards Corporation; "The Halcyon Isle" [1981] AC 221 at 232-233. However the circumstances in which a lien arises for "damage done by a ship" are limited. Currie v M'Knight [1897] AC 97 establishes that the damage must be "the fault of the ship itself", that is the ship against which liability is alleged. See also the observations of Lord Herschell at 108 and Lord Morris at 109-110. In "The Eschersheim " [1976] 1 WLR 430 at 438 Lord Diplock applied the decision in Currie v M'Knight in construing a statutory provision similar to para 4(3)(a) of the Admiralty Act . The facts of that case were similar to those in the present actions. In Opal Maritime Agencies Pty Ltd v Proceeds of Sale of Vessel MV "Skulptor Konenkov " [2000] FCA 507 ; (2000) 172 ALR 481 , the Full Court applied " The Eschersheim ", although in a somewhat different context. These cases might suggest that in the present case, the damage caused by the tug was not damage done by Global Peace which would give rise to such maritime liens. However it is not necessary to take the matter any further.
Case: "The Eschersheim" [1976] 1 WLR 430
Outcome: considered
In any event the plaintiffs may face substantial difficulty in seeking to establish their claims to maritime liens. They assert that their liens are for damage done to the vessels by the oil spillage. Such a lien is recognized by subs 15(2) of the Admiralty Act and in the textbooks and cases dealing with maritime liens. See, for example, Bankers Trust International Ltd v Todd Shipyards Corporation; "The Halcyon Isle" [1981] AC 221 at 232-233. However the circumstances in which a lien arises for "damage done by a ship" are limited. Currie v M'Knight [1897] AC 97 establishes that the damage must be "the fault of the ship itself", that is the ship against which liability is alleged. See also the observations of Lord Herschell at 108 and Lord Morris at 109-110. In "The Eschersheim " [1976] 1 WLR 430 at 438 Lord Diplock applied the decision in Currie v M'Knight in construing a statutory provision similar to para 4(3)(a) of the Admiralty Act . The facts of that case were similar to those in the present actions. In Opal Maritime Agencies Pty Ltd v Proceeds of Sale of Vessel MV "Skulptor Konenkov " [2000] FCA 507 ; (2000) 172 ALR 481 , the Full Court applied " The Eschersheim ", although in a somewhat different context. These cases might suggest that in the present case, the damage caused by the tug was not damage done by Global Peace which would give rise to such maritime liens. However it is not necessary to take the matter any further.
Case: Opal Maritime Agencies Pty Ltd v Proceeds of Sale of Vessel MV "Skulptor Konenkov" [2000] FCA 507 ; (2000) 172 ALR 481
Outcome: cited
In any event the plaintiffs may face substantial difficulty in seeking to establish their claims to maritime liens. They assert that their liens are for damage done to the vessels by the oil spillage. Such a lien is recognized by subs 15(2) of the Admiralty Act and in the textbooks and cases dealing with maritime liens. See, for example, Bankers Trust International Ltd v Todd Shipyards Corporation; "The Halcyon Isle" [1981] AC 221 at 232-233. However the circumstances in which a lien arises for "damage done by a ship" are limited. Currie v M'Knight [1897] AC 97 establishes that the damage must be "the fault of the ship itself", that is the ship against which liability is alleged. See also the observations of Lord Herschell at 108 and Lord Morris at 109-110. In "The Eschersheim " [1976] 1 WLR 430 at 438 Lord Diplock applied the decision in Currie v M'Knight in construing a statutory provision similar to para 4(3)(a) of the Admiralty Act . The facts of that case were similar to those in the present actions. In Opal Maritime Agencies Pty Ltd v Proceeds of Sale of Vessel MV "Skulptor Konenkov " [2000] FCA 507 ; (2000) 172 ALR 481 , the Full Court applied " The Eschersheim ", although in a somewhat different context. These cases might suggest that in the present case, the damage caused by the tug was not damage done by Global Peace which would give rise to such maritime liens. However it is not necessary to take the matter any further.
Case: The Niobe (1888) 13 PD 55
Outcome: discussed
The plaintiffs also seek, by reference to earlier decisions, to establish that under general principles of admiralty law, a vessel under tow is vicariously liable for damage done by the tug. The plaintiffs rely primarily upon the decision in The Niobe (1888) 13 PD 55. However that case, taken at its highest, does not support the proposition. The case appears to have been decided upon the basis of actual negligence on the part of the master of the vessel under tow. The President doubted "if the questions of law which have been discussed before me arise upon this occasion ...". Nonetheless his Lordship went on to consider the general question of liability as between tug and tow, observing at 59: But it appears to me that the authorities clearly establish the tow has, under the ordinary contract of towage control over the tug. The tug and tow are engaged in a common undertaking, of which the general management and command belongs to the tow, and in order that she should efficiently execute this command it is necessary that she should have a good look-out and should not merely allow herself to be drawn, or the tug to go, in a course which would cause damage to another vessel. As Dr. Lushington has pointed out, it is essential for the safety of vessels being towed that there should not be a divided command, and convenience has established that the undivided authority shall belong to the tow. The pilot, if there be one, takes his station on his tow, and the officers of the tow are usually, as in the present case, of a higher class and better able to direct the navigation than those of the tug. 35 At p 60 his Lordship continued: ... I may observe that it is clear from the evidence in this case that it was perfectly well understood by the captains of the tug and tow that the latter had the control of their movements, and that it was the duty of those navigating the tow to keep a look-out and check the tug if it were going wrong. 36 His Lordship also observed: If it had been shewn that the "Flying Serpent" had, by some sudden manoeuvre, which those on board the "Niobe" could not control, brought about the collision, I should have held the "Niobe" blameless.
Case: The Quickstep (1890) 15 PD 196
Outcome: considered
The case is authority for the proposition that the master of the tow must accept responsibility for the way in which the towing operation is conducted. He must keep a proper lookout and direct the tug appropriately. It does not follow from that decision that the tow will be responsible for actions by the tug over which it has no control. As much also appears from other cases referred to in argument. In The Quickstep (1890) 15 PD 196 at 199 Butt J said, in delivering the reasons of a Divisional Court: No doubt in many cases of towage the negligence relied on as making the owners of the vessel in tow liable for a collision has been the negligence of those on board the tug; and where, as in most of such cases, the navigation was under the direction of those on board the vessel being towed, such negligence has been rightly held to be in law the negligence of her owners. ... In all such cases, however, the real question is whether or not the relation of master and servant exists between the defendants, the owners of the vessel towed, and the persons in charge of the navigation of the steam-tug. Unless that relation exists, considerations of expediency cannot avail to impose liability on the owners of the vessel in tow. 38 At 200 his Lordship observed: The truth is, no general rule can be laid down. The question whether the crew of the tug are to be regarded as the servants of the owner of the vessel in tow must depend upon the circumstances in each case. 39 In Owners of the "SS Devonshire" v Owners of the Barge "Leslie" [1912] AC 634 at 645, Viscount Haldane LC approved the proposition advanced by Butt J in The Quickstep . At 648 Lord Ashbourne said: There is nothing in the facts of this case to make the tow responsible for the navigation of the tug. This is not a question of law, but a question of fact, to be determined in each case on its own circumstances. See also The MSC Panther and the Ericbank [1957] 1 Lloyds Rep 57 at 67 (per Willmer J).
Case: Owners of the "SS Devonshire" v Owners of the Barge "Leslie" [1912] AC 634
Outcome: considered
In Owners of the "SS Devonshire" v Owners of the Barge "Leslie" [1912] AC 634 at 645, Viscount Haldane LC approved the proposition advanced by Butt J in The Quickstep . At 648 Lord Ashbourne said: There is nothing in the facts of this case to make the tow responsible for the navigation of the tug. This is not a question of law, but a question of fact, to be determined in each case on its own circumstances. See also The MSC Panther and the Ericbank [1957] 1 Lloyds Rep 57 at 67 (per Willmer J).
Case: The MSC Panther and the Ericbank [1957] 1 Lloyds Rep 57
Outcome: cited
In Owners of the "SS Devonshire" v Owners of the Barge "Leslie" [1912] AC 634 at 645, Viscount Haldane LC approved the proposition advanced by Butt J in The Quickstep . At 648 Lord Ashbourne said: There is nothing in the facts of this case to make the tow responsible for the navigation of the tug. This is not a question of law, but a question of fact, to be determined in each case on its own circumstances. See also The MSC Panther and the Ericbank [1957] 1 Lloyds Rep 57 at 67 (per Willmer J).
Case: Brookton Co-operative Society Ltd v Commissioner of Taxation (Cth) [1981] HCA 28 ; (1981) 147 CLR 441
Outcome: considered
In other words, one can look to the circumstances in which the subject entity was formed and the manner in which it is fulfilling the purposes for which it was incorporated, but there remains the issue of whether one can examine the subjective motives and intentions of the promoters of the subject entity and its directors for the purpose of ascertaining if the statutory exemption from income tax operates. In Cronulla Sutherland Leagues Club 23 FCR at 98, Lockhart J referred to this issue by reference to the decision of the High Court in Brookton Co-operative Society Ltd v Commissioner of Taxation (Cth) [1981] HCA 28 ; (1981) 147 CLR 441 where the ultimate issue was whether the taxpayer was a co-operative company within the meaning of s 117 of the ITAA 1936. One of the elements of the statutory definition was that the company 'is established for the purpose of carrying on any business having as its primary object or objects one or more of the following ... [objects]'. 211 The diversity of opinion in Brookton had previously been commented on by Ormiston J of the Supreme Court of Victoria in SSAU Nominees Pty Ltd v Federal Commissioner of Taxation (1985) 16 ATR 992 at 1011: 'Here it is clear that all members of the court on each occasion [Brookton and Ruffy] held the view that the primary object or objects of the appellant's business could not be determined solely, or even initially, by reference to its memorandum of association, and that evidence of its history, setting up and activities, had to be examined. In this instance Mason J (at 453), with the concurrence of Wilson J, thought that the intentions, if not the motives, of the promoters could be looked at, although Aickin J strongly disagreed: at 463.'
Case: Business &amp; Research Management Pty Ltd v Commissioner of Taxation [2008] FCA 1652 
Outcome: referred to
These appeals were heard immediately following the hearing of the appeals by Business and Research Management Limited (in liquidation) ('BARM'). Notwithstanding that the issues in these appeals are not coterminous with the issues in the BARM appeals, there is a possible common issue and they arise out of the same factual background, which is set out in [4] [41] of the reasons for judgment in Business &amp; Research Management Pty Ltd v Commissioner of Taxation [2008] FCA 1652. The roles of ATTORI and AARI as the researchers in the Budplan projects are referred to at various parts of that background. In particular, it is noted at [8(3)] that ATTORI was engaged to conduct research and development for all projects except for Budplan 'A' Series No. 1 and Personal Budplan No. 5, where AARI was engaged to conduct the research and development activities. Unless the context indicates otherwise, terms defined in the BARM reasons that are used in these reasons, have the same meaning. 3 While the issue in the BARM appeals concerned the quantum of the management fees to be brought to account as assessable income in the hands of BARM, the issue of the quantum of the research fees to be brought to account as assessable income in the hands of ATTORI or AARI only arises if the income of ATTORI or AARI is not exempt from income tax on the ground referred to below. 4 There is at least one, but possibly two issues before the Court. 227 This is the same issue that arose, was considered and decided in Business &amp; Research Management Pty Ltd v Commissioner of Taxation [2008] FCA 1652 in respect of the management fees. Here, it is in respect of the research fees, but it arises out of the same factual background. 228 While the arguments in the present case were not identical to those that were ventilated in the BARM case, they do traverse common ground. For the reasons given in that case, the applicants in the present case cannot succeed on this issue. 229 The applications must be dismissed with costs. I certify that the preceding two hundred and twenty-nine (229) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds. Associate: Dated: 14 November 2008 Counsel for the Applicant: Mr AH Slater QC and Mr PM Fraser and Mr BL Jones Solicitor for the Applicant: BWS Lawyers Counsel for the Respondent: Mr BJ Sullivan SC, Mr TM Thawley and Ms M Hirschorn Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 11 and 16 April 2008 Date of Judgment: 14 November 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1653.html
Case: Capital Club Pty Ltd v Commissioner of State Revenue (2007) 66 ATR 606
Outcome: considered
SSAU Nominees involved a claim for a sales tax exemption for 'goods for use ... by a society, institution or organisation established and carried on exclusively or principally for the promotion of the interests of a university or school conducted by an organisation not carried on for the profit of an individual'. Some 17 years later, Mandie J of the Supreme Court of Victoria said in Capital Club Pty Ltd v Commissioner of State Revenue (2007) 66 ATR 606 at [41]: 'Ormiston J referred to Ruffy and Brookton noting that the High Court held the view that the primary object or objects of the company's business could not be determined solely or even initially by reference to its Memorandum of Association and that evidence of its history, setting up and activities had to be examined. The case otherwise turned on its own facts and the particular legislation.'