mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: GP International Pipecoaters Pty Ltd v The Commissioner of Taxation of the Commonwealth of Australia [1990] HCA 25 ; (1990) 170 CLR 124
Outcome: referred to
The character of the expenditure and the character of the advantage sought by the making of the expenditure is the chief, if not critical, factor in determining the character of what was paid: GP International Pipecoaters Pty Ltd v Commissioner of Taxation of the Commonwealth of Australia [1990] HCA 25 ; (1990) 170 CLR 124 at 137; Mount Isa Mines Limited v Commissioner of Taxation of the Commonwealth of Australia [1992] HCA 62 ; (1992) 176 CLR 141 at 147-149; Commissioner of Taxation of the Commonwealth of Australia v Melbourne Citylink Limited [2006] HCA 35 at [1] , [3], [76], [77] and [148]; and BP Australia 112 CLR at 394 and 398.
Case: GRE Insurance Limited v Commissioner of Taxation of the Commonwealth of Australia (1992) 34 FCR 160
Outcome: discussed
The distinction between fixed and circulating capital, which has been said to be "obscure": Mason J (as he then was) in Industrial Equity Ltd v Blackburn [1977] HCA 59 ; (1977) 137 CLR 567 at 576, and "debatable": Jenkins LJ in Reynolds and Gibson v Crompton (1950) 33 Tax Cas 288 at 303, was discussed by Lockhart J in QBE Insurance Group Limited v Australian Securities Commission (1992) 38 FCR 270 at 287-288 and by the Full Court in GRE Insurance Limited v Commissioner of Taxation of the Commonwealth of Australia (1992) 34 FCR 160 at 162-163. See also Commercial and General Acceptance Limited v Commissioner of Taxation of the Commonwealth of Australia [1977] HCA 47 ; (1976) 137 CLR 373 at 377 and 384 and Coles Myer Finance Limited v Commissioner of Taxation of the Commonwealth of Australia [1993] HCA 29 ; (1993) 176 CLR 640 at 663-664, 668-669 and 681-682.
Case: Hallstroms Proprietary Limited v The Federal Commissioner of Taxation [1946] HCA 34 ; (1946) 72 CLR 634
Outcome: applied
In Hallstroms Proprietary Limited v The Federal Commissioner of Taxation [1946] HCA 34 ; (1946) 72 CLR 634, Dixon J incorporated his reasons in Sun Newspapers 61 CLR at 359-363, and elaborated upon them, saying the following at 646, 647 and 648: As a prefatory remark it may be useful to recall the general consideration that the contrast between the two forms of expenditure corresponds to the distinction between the acquisition of the means of production and the use of them; between establishing or extending a business organization and carrying on the business; between the implements employed in work and the regular performance of the work in which they are employed; between an enterprise itself and the sustained effort of those engaged in it. ... What is an outgoing of capital and what is an outgoing on account of revenue depends on what the expenditure is calculated to effect from a practical and business point of view, rather than upon the juristic classification of the legal rights, if any, secured, employed or exhausted in the process. [emphasis added] 39 Stopping at this point, it is important to appreciate the content of the approach of Dixon J in Sun Newspapers [1938] HCA 72 ; 61 CLR 337 and Hallstroms Case [1946] HCA 34 ; 72 CLR 634 . It is not, as some of the respondent's submissions in this case seemed to state, that one "looks through" the legal or strict juridicial form of a transaction if "good cause" for so doing is shown. The analysis, that is the ascertainment of the character of the expenditure and what it is calculated to effect, is made from a practical and business point of view, though, of course, as part of that analysis, it is essential to understand the proper legal characterisation of what has occurred: Commissioner of Taxation of the Commonwealth of Australia v South Australian Battery Makers Pty Limited ( 1978) [1978] HCA 32 ; 140 CLR 645 at 657-60 and 661-662. 65 The respondent accepted in its submissions that the correct approach to the determination of the issues at hand was to be found in the judgments of Dixon J in Sun Newspapers [1938] HCA 72 ; 61 CLR 337 and Hallstroms Case [1946] HCA 34 ; 72 CLR 634. 73 The above is adequate to identify the essential structure of the debate. Various refinements were made to the arguments by reference, in particular, to the terms of Sun Newspapers [1938] HCA 72 ; 61 CLR 337 , Hallstroms Case [1946] HCA 34 ; 72 CLR 634 , BP Australia [1965] HCA 35 ; 112 CLR 386 and Regent Oil v Strick [1966] AC 295 . For the reasons expressed by Barwick CJ in Cliffs International 142 CLR at 147-148 nothing further is to be gained by analysing these other cases too finely once the underlying principle is clear.
Case: McLennan v Commissioner of Taxation (1989) 21 FCR 80
Outcome: referred to
That approach, however, tended to be transformed in expression to choices between form and substance: cf Cliffs International Inc v The Commissioner of Taxation of the Commonwealth of Australia [1979] HCA 8 ; (1979) 142 CLR 140 at 158, and McLennan v Commissioner of Taxation (1989) 21 FCR 80 at 86, and the need to have reason to look through form to substance. I have already indicated my view that that adds an unnecessary complication to the test expressed in Sun Newspapers and Hallstroms Case that has been applied on numerous occasions. If one is to use the expression "form and substance", the test should be understood as requiring an assessment of what the expenditure is calculated to effect in substance from a practical and business point of view.
Case: Mount Isa Mines Limited v The Commissioner of Taxation of the Commonwealth of Australia [1992] HCA 62 ; (1992) 176 CLR 141
Outcome: referred to
The character of the expenditure and the character of the advantage sought by the making of the expenditure is the chief, if not critical, factor in determining the character of what was paid: GP International Pipecoaters Pty Ltd v Commissioner of Taxation of the Commonwealth of Australia [1990] HCA 25 ; (1990) 170 CLR 124 at 137; Mount Isa Mines Limited v Commissioner of Taxation of the Commonwealth of Australia [1992] HCA 62 ; (1992) 176 CLR 141 at 147-149; Commissioner of Taxation of the Commonwealth of Australia v Melbourne Citylink Limited [2006] HCA 35 at [1] , [3], [76], [77] and [148]; and BP Australia 112 CLR at 394 and 398.
Case: National Australia Bank Limited v Commissioner of Taxation (1997) 80 FCR 352
Outcome: referred to
It is also important to recognise that the analysis requires "both a wide survey and an exact scrutiny of the taxpayer's activities": Western Gold Mines (NL) v Commissioner of Taxation (WA) [1938] HCA 5 ; (1938) 59 CLR 729 at 740. That is, one must examine the whole business context of what was done: BP Australia 112 CLR at 399 (the "whole picture"); and see also National Australia Bank Limited v Commissioner of Taxation (1997) 80 FCR 352 at 363. 47 The mere identification of the correct description of the legal rights obtained or transferred by any transaction is generally too narrow a focus for the answering of the question. This is especially so once it is recognised that almost every commercial arrangement based on contract can be analysed jurisprudentially from the perspective of buying and selling rights or choses in action. Such rights are merely the legal or juridicial building blocks of relationships built from business and practical activity. The enquiry as to whether an outgoing is on capital or revenue account looks to the business and practical effects and advantages sought in the whole context: Commissioner of Taxation of the Commonwealth of Australia v Raymor (NSW) Pty Limited (1990) 24 FCR 90 at 99 and National Australia Bank 80 FCR at 363-364.
Case: Pine Creek Goldfields v Commissioner of Taxation (1999) 41 ATR 71
Outcome: referred to
The respondent stressed that the course taken was to buy contracts from independent third parties. It submitted that the payment of such a large proportion of the contract revenue stream as an Assignment Fee was reflective of a concentrated investment in capital structure acquired to bear fruit in the longer term and that the "true legal character" of the expenditure was to create or effect the business structure and was thus of a capital nature: Pine Creek Goldfields v Commissioner of Taxation (1999) 41 ATR 71 and Bell &amp; Moir Corp Pty Limited v Commissioner of Taxation (1999) 42 ATR 421 at 424.
Case: QBE Insurance Group Limited v Australian Securities Commission (1992) 38 FCR 270
Outcome: referred to
The distinction between fixed and circulating capital, which has been said to be "obscure": Mason J (as he then was) in Industrial Equity Ltd v Blackburn [1977] HCA 59 ; (1977) 137 CLR 567 at 576, and "debatable": Jenkins LJ in Reynolds and Gibson v Crompton (1950) 33 Tax Cas 288 at 303, was discussed by Lockhart J in QBE Insurance Group Limited v Australian Securities Commission (1992) 38 FCR 270 at 287-288 and by the Full Court in GRE Insurance Limited v Commissioner of Taxation of the Commonwealth of Australia (1992) 34 FCR 160 at 162-163. See also Commercial and General Acceptance Limited v Commissioner of Taxation of the Commonwealth of Australia [1977] HCA 47 ; (1976) 137 CLR 373 at 377 and 384 and Coles Myer Finance Limited v Commissioner of Taxation of the Commonwealth of Australia [1993] HCA 29 ; (1993) 176 CLR 640 at 663-664, 668-669 and 681-682.
Case: Regent Oil Co Limited v Strick [1966] AC 295 at 353
Outcome: referred to
The respondent submitted that the intended lasting or enduring nature of the Customer Agreements for longer than three years, thereby justifying the size of the Assignment Fees reflected the fixed rather than the circulating nature of this capital expenditure: Regent Oil Co Limited v Strick [1966] AC 295 at 353. 71 The respondent pointed to the emphasis after 2001 of TAPL in improving the quality of lines purchased and the reduction in unsatisfactory Authorised Dealers from 2002. It was submitted that once the capital structure of the acquired contracts was in place, TAPL turned its attention to customer retention. 72 The respondent pointed to TAPL's accounting treatment as indicative of the payments as the purchase of capital assets. 73 The above is adequate to identify the essential structure of the debate. Various refinements were made to the arguments by reference, in particular, to the terms of Sun Newspapers [1938] HCA 72 ; 61 CLR 337 , Hallstroms Case [1946] HCA 34 ; 72 CLR 634 , BP Australia [1965] HCA 35 ; 112 CLR 386 and Regent Oil v Strick [1966] AC 295 . For the reasons expressed by Barwick CJ in Cliffs International 142 CLR at 147-148 nothing further is to be gained by analysing these other cases too finely once the underlying principle is clear.
Case: Reynolds and Gibson v Crompton (1950) 33 Tax Cas 288
Outcome: referred to
The distinction between fixed and circulating capital, which has been said to be "obscure": Mason J (as he then was) in Industrial Equity Ltd v Blackburn [1977] HCA 59 ; (1977) 137 CLR 567 at 576, and "debatable": Jenkins LJ in Reynolds and Gibson v Crompton (1950) 33 Tax Cas 288 at 303, was discussed by Lockhart J in QBE Insurance Group Limited v Australian Securities Commission (1992) 38 FCR 270 at 287-288 and by the Full Court in GRE Insurance Limited v Commissioner of Taxation of the Commonwealth of Australia (1992) 34 FCR 160 at 162-163. See also Commercial and General Acceptance Limited v Commissioner of Taxation of the Commonwealth of Australia [1977] HCA 47 ; (1976) 137 CLR 373 at 377 and 384 and Coles Myer Finance Limited v Commissioner of Taxation of the Commonwealth of Australia [1993] HCA 29 ; (1993) 176 CLR 640 at 663-664, 668-669 and 681-682.
Case: Western Gold Mines (NL) v Commissioner of Taxation (WA) [1938] HCA 5 ; (1938) 59 CLR 729
Outcome: applied
It is also important to recognise that the analysis requires "both a wide survey and an exact scrutiny of the taxpayer's activities": Western Gold Mines (NL) v Commissioner of Taxation (WA) [1938] HCA 5 ; (1938) 59 CLR 729 at 740. That is, one must examine the whole business context of what was done: BP Australia 112 CLR at 399 (the "whole picture"); and see also National Australia Bank Limited v Commissioner of Taxation (1997) 80 FCR 352 at 363.
Case: Abebe v The Commonwealth (1999) 197 CLR 510
Outcome: cited
in relation to this ground of appeal I note that it is for the appellant to make his case to the Tribunal, and not the reverse: Abebe v The Commonwealth (1999) 197 CLR 510 at 576. The third ground of appeal appears to be, to some extent, a variation of the first ground of appeal. In any event, however, it is clear that the Tribunal had provided the appellant with an adequate opportunity to present argument and give oral evidence in that, inter alia : The appellant failed to appear before the Tribunal at the hearing scheduled on 19 February 2008, and the Tribunal was entitled to make a decision without taking any further action to allow or enable the appellant to appear before it: s 426A. No jurisdictional error is identified by this ground of appeal.
Case: Minister for Immigration and Citizenship v SZLFX [2009] HCA 31
Outcome: cited
am also of the view that the subjective views of the Tribunal prior to the hearing as to defects, lack of detail or lack of specificity in evidence in the appellant's case do not constitute "information" within the meaning of s 424A(1) which needed to be communicated in writing to the appellant: VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 at [24] , cf Minister for Immigration and Citizenship v SZLFX [2009] HCA 31.
Case: SZFDR v Minister for Immigration and Citizenship [2007] HCA 35 ; (2007) 232 CLR 189
Outcome: cited
relation to the appellant's claim that he had been advised poorly by his migration agent, the Federal Magistrate observed that it is well settled that bad or negligent advice or conduct by an agent which falls short of fraud is not alone sufficient to set aside the decision of the Tribunal: SZFDR v Minister for Immigration and Citizenship [2007] HCA 35 ; (2007) 232 CLR 189. The appellant's Grounds of Appeal pursuant to his Notice of Appeal filed 9 June 2009, are as follows : The Refugee Review Tribunal ("the Tribunal") fell into jurisdictional error in that it denied procedural fairness to the appellant as well as acting in breach of its obligations under the law (in breach of section 424A of the Migration Act 1958 ). Particulars The Tribunal did not provide the Applicant with the opportunity to respond to the lack of evidence regarding his application, as the Applicant could not sufficiently understand the language or the contents of the notification letter from the Tribunal, thus also unable to respond to the Tribunals invitation, given the clearly significant language and cultural barriers. This deprived the Applicant of a fair opportunity to respond. 2. The Tribunal fell into jurisdictional error in that it failed to disclose adverse findings. Particulars The Tribunal failed to disclose to the Applicant, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason for affirming the decision under review and ensure that the Applicant fully understands the significance of the review and the consequences of it being relied on in affirming the decision that is under review. 3. The Tribunal fell into jurisdictional error in that it failed to provide adequate opportunity to present arguments and give oral evidence. Particulars The Tribunal had failed to provide the Applicant with an adequate opportunity to respond to the lack of evidence and present his arguments because the Tribunal was "unable to make a favourable decision based on the given materials alone". The letter was itself not in a language understandable by the Applicant which resulted in the Applicant being unable to respond fully and appropriately. As a result, the Applicant was unaware of the nature of the hearing and the consequences it bears on the effect of the decision to refuse his visa thus being deprived of the opportunity to arrive at that understanding to give oral evidence and present his arguments. Before me both the appellant and the Minister were represented by counsel.
Case: SZGWH v Minister for Immigration and Citizenship [2007] FCA 543
Outcome: cited
7 Division 4 of the Act provides a comprehensive procedural code in respect of the requirements of procedural fairness that must be accorded to review applicants in the conduct of reviews under that Division to the exclusion of the common law natural justice hearing rule: s 422B , SZMKG v Minister for Immigration and Citizenship [2009] FCAFC 99 at [49] - [50] . There is no obligation on the Tribunal to ensure that any correspondence to the appellant is in his native language: SZGWH v Minister for Immigration and Citizenship [2007] FCA 543 at [12] , SZHVM v Minister for Immigration and Citizenship [2008] FCA 600 at [57] . The failure of the appellant to deal with the Tribunal's correspondence and attend the hearing are in no way actions constituting a denial of procedural fairness by the Tribunal.
Case: SZHVM v Minister for Immigration and Citizenship [2008] FCA 600
Outcome: cited
7 Division 4 of the Act provides a comprehensive procedural code in respect of the requirements of procedural fairness that must be accorded to review applicants in the conduct of reviews under that Division to the exclusion of the common law natural justice hearing rule: s 422B , SZMKG v Minister for Immigration and Citizenship [2009] FCAFC 99 at [49] - [50] . There is no obligation on the Tribunal to ensure that any correspondence to the appellant is in his native language: SZGWH v Minister for Immigration and Citizenship [2007] FCA 543 at [12] , SZHVM v Minister for Immigration and Citizenship [2008] FCA 600 at [57] . The failure of the appellant to deal with the Tribunal's correspondence and attend the hearing are in no way actions constituting a denial of procedural fairness by the Tribunal.
Case: SZMKG v Minister for Immigration and Citizenship [2009] FCAFC 99
Outcome: cited
7 Division 4 of the Act provides a comprehensive procedural code in respect of the requirements of procedural fairness that must be accorded to review applicants in the conduct of reviews under that Division to the exclusion of the common law natural justice hearing rule: s 422B , SZMKG v Minister for Immigration and Citizenship [2009] FCAFC 99 at [49] - [50] . There is no obligation on the Tribunal to ensure that any correspondence to the appellant is in his native language: SZGWH v Minister for Immigration and Citizenship [2007] FCA 543 at [12] , SZHVM v Minister for Immigration and Citizenship [2008] FCA 600 at [57] . The failure of the appellant to deal with the Tribunal's correspondence and attend the hearing are in no way actions constituting a denial of procedural fairness by the Tribunal.
Case: VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123
Outcome: cited
am also of the view that the subjective views of the Tribunal prior to the hearing as to defects, lack of detail or lack of specificity in evidence in the appellant's case do not constitute "information" within the meaning of s 424A(1) which needed to be communicated in writing to the appellant: VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 at [24] , cf Minister for Immigration and Citizenship v SZLFX [2009] HCA 31.
Case: Boyle v Sacker (1888) 39 Ch D 249
Outcome: cited
Even apart from an express provision of the kind found in FCRs O 7 r 1(3)(c), it has long been held that an objection to service must be taken promptly, and that appearing in Court to answer the merits of a case precludes the taking of the objection subsequently: see Boyle v Sacker (1888) 39 Ch D 249. 41 By the operation of O 7 r 1(3), the Creditor's Petition is taken to have been served personally on the Debtor, and O 7 r 1's requirement of personal service is satisfied. By the operation of the general principle mentioned, it has ceased to be open to the Debtor to rely on the absence of personal service. If I had thought it necessary, I would have made a formal order under s 306 of the Act or O 1 r 8 of the FCRs: cf Re Florance; Ex parte Turimetta Properties Pty Ltd (1979) 28 ALR 403. 42 I am satisfied with the proof of service of the Creditor's Petition for the purposes of s 52 of the Act .
Case: Skalkos v T &amp; S Recoveries Pty Ltd [2004] FCAFC 321 ; (2004) 141 FCR 107
Outcome: cited
Since writing the foregoing paragraphs, I have become aware of the observations made by the Full Court in Skalkos v T &amp; S Recoveries Pty Ltd [2004] FCAFC 321 ; (2004) 141 FCR 107 at [31] , and earlier by Tamberlin J in Silvas v Silvas [1997] FCA 206 , with which my conclusion is in accord.
Case: Silvas v Silvas [1997] FCA 206
Outcome: cited
Since writing the foregoing paragraphs, I have become aware of the observations made by the Full Court in Skalkos v T &amp; S Recoveries Pty Ltd [2004] FCAFC 321 ; (2004) 141 FCR 107 at [31] , and earlier by Tamberlin J in Silvas v Silvas [1997] FCA 206 , with which my conclusion is in accord.
Case: Auskay International Manufacturing &amp; Trade Pty Ltd v Qantas Airways Ltd [2008] FCA 1458 ; (2008) 251 ALR 166
Outcome: referred to
Auskay International Manufacturing &amp; Trade Pty Ltd v Qantas Airways Ltd [2008] FCA 1458 ; (2008) 251 ALR 166 , I struck out the applicant's second amended statement of claim ("the SASC"). I granted the applicant leave to file and serve a further amended statement of claim. The current pleading is its fourth amended statement of claim (the "FASC"). The respondents (other than the second, sixth and seventh respondents) seek the striking out of the whole of the FASC or parts of it under O 11 r 16 of the Federal Court Rules on the grounds that it discloses no reasonable cause of action or has a tendency to cause embarrassment or delay. In my reasons for striking out the SASC ("my previous reasons") I explained the nature of the proceeding and the issues in dispute between the applicant and the respondents. I also identified the principles which informed the exercise of the Court's powers under O 11 r 16. I do not here repeat what I have said on those matters. These reasons should be read together with my previous reasons.
Case: Australian Competition and Consumer Commission v Qantas Airways Ltd [2008] FCA 1976 ; (2008) 253 ALR 89
Outcome: referred to
law on what constitutes a "market in Australia" is far from settled. One thing that is clear is that a market which is wholly outside Australia is not comprehended by the statutory definition: see Singapore Airlines Ltd v Australian Competition and Consumer Commission (2009) 260 ALR 244 at 254; Australian Competition and Consumer Commission v Qantas Airways Ltd [2008] FCA 1976 ; (2008) 253 ALR 89 at 112. The existence of a global market which extends into the geographic boundaries of Australia does not, on the other hand, preclude a finding that there exists a "market in Australia". There can, therefore, be no objection to the applicant pleading, as it has done, that there is a global market for air freight services and that part of that market is a "market in Australia", provided that material facts are pleaded which establish the existence of those markets: see Sammy Rosso Supplies Pty Ltd v Australian Safeway Stores Pty Ltd (1998) ATPR 41-641 at 41-094 per Goldberg J.