mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Paramasivam v Randwick City Council [2005] FCA 369
Outcome: distinguished
It appears to follow from the Full Court's judgment that both the decision of the registrar to seek a direction of a judge, and the decision of the judge to direct the registrar, are decisions of an administrative character. Unfortunately, the Full Court does not seem to have had the benefit of citation of the apparently contrary view of Toohey J in Letts . In Paramasivam v Randwick City Council [2005] FCA 369 , Sackville J took the view that he was bound by Bizuneh to decide that both the registrar seeking a direction of a judge, and the judge giving the direction, pursuant to O 46 r 7A of the Federal Court Rules , made decisions of an administrative character. At [31]-[39], his Honour referred to Edwards , Letts and Bizuneh. At [40]-[41], his Honour drew attention to the fact that the Full Court had not referred to Letts , and expressed doubts about the correctness of the reasoning in Bizuneh , whilst acknowledging that it was binding on him. His Honour made orders adding as respondents to the proceeding before him the deputy registrar who had made the decision to seek the direction of a judge and the judge who gave the direction to refuse to accept the documents. Subsequently, in Paramasivam v Randwick City Council (No. 2) [2005] FCA 508 , effectively by consent, Sackville J set aside both the decision to seek a direction, and the direction, on the ground referred to in s 5(1)(d) of the ADJR Act , apparently on the basis that his Honour had foreshadowed in the first judgment at [43]-[51]. This was that both the registrar and the judge had taken into account other documents previously filed by the same applicant, whereas O 46 r 7A requires that the originating process "appears...on its face to be an abuse of the process of the Court or to be frivolous or vexatious."
Case: Paramasivam v Randwick City Council (No. 2) [2005] FCA 508
Outcome: distinguished
It appears to follow from the Full Court's judgment that both the decision of the registrar to seek a direction of a judge, and the decision of the judge to direct the registrar, are decisions of an administrative character. Unfortunately, the Full Court does not seem to have had the benefit of citation of the apparently contrary view of Toohey J in Letts . In Paramasivam v Randwick City Council [2005] FCA 369 , Sackville J took the view that he was bound by Bizuneh to decide that both the registrar seeking a direction of a judge, and the judge giving the direction, pursuant to O 46 r 7A of the Federal Court Rules , made decisions of an administrative character. At [31]-[39], his Honour referred to Edwards , Letts and Bizuneh. At [40]-[41], his Honour drew attention to the fact that the Full Court had not referred to Letts , and expressed doubts about the correctness of the reasoning in Bizuneh , whilst acknowledging that it was binding on him. His Honour made orders adding as respondents to the proceeding before him the deputy registrar who had made the decision to seek the direction of a judge and the judge who gave the direction to refuse to accept the documents. Subsequently, in Paramasivam v Randwick City Council (No. 2) [2005] FCA 508 , effectively by consent, Sackville J set aside both the decision to seek a direction, and the direction, on the ground referred to in s 5(1)(d) of the ADJR Act , apparently on the basis that his Honour had foreshadowed in the first judgment at [43]-[51]. This was that both the registrar and the judge had taken into account other documents previously filed by the same applicant, whereas O 46 r 7A requires that the originating process "appears...on its face to be an abuse of the process of the Court or to be frivolous or vexatious."
Case: Re Altman and Family Court of Australia (1992) 27 ALD 369
Outcome: cited
In Loughnan (Principal Registrar, Family Court of Australia) v Altman [1992] FCA 580 ; (1992) 39 FCR 90 , the Full Court dealt with an appeal from a decision of the Tribunal, constituted by its then President, O'Connor J, in Re Altman and Family Court of Australia (1992) 27 ALD 369. Her Honour had reached the conclusion that an unrevised transcript of reasons for judgment pronounced in open court by a judge of the respondent was a document that the respondent was required to give access to under s 5 of the FOI Act . Because the unrevised transcript was produced by the agency responsible for providing transcript of court proceedings, the case turns largely on the meaning of the expression "a document of the court" in s 5 , and is therefore of little relevance to the present case. In the course of the Full Court's judgment, at 95, the Court did approve the conclusion of O'Connor J that the unrevised transcript was not a document of an administrative nature. Clearly, the giving of reasons for judgment and the practice of revising the transcript of those reasons for publication as the reasons for judgment are at the very heart of the judicial process, and the ready availability of the unrevised transcript to the public could undermine the independence of the judiciary.
Case: Re O'Sullivan and Family Court of Australia (1997) 47 ALD 765
Outcome: cited
Loughnan has since been discussed in a couple of decisions of the Tribunal. In Re O'Sullivan and Family Court of Australia (1997) 47 ALD 765 , Senior Member Dwyer dealt with a case in which access was sought to the handwritten notes of a Family Court counsellor. In her reasons, the learned senior member discussed Loughnan in the context of determining whether the counsellor's notes were documents of the court. Having concluded that they were, at [25] the senior member found that the notes were not a document relating to matters of an administrative nature, because of the professional duties of the counsellor. It is unnecessary to decide in the present case whether that conclusion was correct. In Re Simring and High Court of Australia [2006] AATA 849 (2006) 44 AAR 103 , Deputy President Walker dealt with a request for access to a document created in the course of dealing with an application for special leave to appeal to the High Court. The learned deputy president took the view that, because the document had been brought into existence within the chambers of a judge, as part of the judicial deliberative process, it was a judicial document, and not a document relating to matters of an administrative nature. The deputy president regarded Loughnan as not in point. At [19], the deputy president referred to the words "relates to matters of an administrative nature" in s 5 of the FOI Act in the following terms: The language used is relatively flexible and focuses on the general nature of the document rather than on the presence in the document of any administrative features whatever, however insignificant they might be in relation to the document's general nature. Even if the document in issue dealt incidentally with some administrative matters, and there is no evidence that it does, that would not necessarily detract from its overall quality as a document pertaining to the judicial role of the Court rather than to its administrative organisation.
Case: Re Simring and High Court of Australia [2006] AATA 849 (2006) 44 AAR 103
Outcome: discussed
Loughnan has since been discussed in a couple of decisions of the Tribunal. In Re O'Sullivan and Family Court of Australia (1997) 47 ALD 765 , Senior Member Dwyer dealt with a case in which access was sought to the handwritten notes of a Family Court counsellor. In her reasons, the learned senior member discussed Loughnan in the context of determining whether the counsellor's notes were documents of the court. Having concluded that they were, at [25] the senior member found that the notes were not a document relating to matters of an administrative nature, because of the professional duties of the counsellor. It is unnecessary to decide in the present case whether that conclusion was correct. In Re Simring and High Court of Australia [2006] AATA 849 (2006) 44 AAR 103 , Deputy President Walker dealt with a request for access to a document created in the course of dealing with an application for special leave to appeal to the High Court. The learned deputy president took the view that, because the document had been brought into existence within the chambers of a judge, as part of the judicial deliberative process, it was a judicial document, and not a document relating to matters of an administrative nature. The deputy president regarded Loughnan as not in point. At [19], the deputy president referred to the words "relates to matters of an administrative nature" in s 5 of the FOI Act in the following terms: The language used is relatively flexible and focuses on the general nature of the document rather than on the presence in the document of any administrative features whatever, however insignificant they might be in relation to the document's general nature. Even if the document in issue dealt incidentally with some administrative matters, and there is no evidence that it does, that would not necessarily detract from its overall quality as a document pertaining to the judicial role of the Court rather than to its administrative organisation.
Case: Valente v The Queen [1985] 2 SCR 673
Outcome: cited
In [53] of his Honour's reasons, Gleeson CJ referred to judgments of the Supreme Court of Canada and the Constitutional Court of South Africa, and cited the reference to "matters of administration bearing directly on the exercise of [the] judicial function" from Valente v The Queen [1985] 2 SCR 673 at 708. His Honour then said: The adjudicative function of a court, considered as an institution, was seen as comprehending matters such as the assignment of judges, sittings of the court and court lists, as well as related matters of allocation of court-rooms and direction of the administrative staff engaged in carrying out that function. Judicial control over such matters was seen as an essential or minimum requirement for institutional independence. The distinction between adjudicative and administrative functions drawn in the context of discussions of judicial independence is not clear cut. Nevertheless, the powers conferred by s 10 of the Magistrates Act include powers that fall squarely within the rationale of the immunity in question. 64 Gleeson CJ therefore held that the words "under an Act" in s 21A of the Magistrates Act applied to the functions and powers given to the Chief Magistrate by s 10. Accordingly, s 30 of the Criminal Code was applicable to them and the appeal should be allowed.
Case: Commissioner of Taxation v Futuris Pty Ltd [2008] HCA 32 ; (2008) 82 ALJR 1177
Outcome: cited
Such considerations led Gummow, Hayne, Heydon and Crennan JJ to observe in their joint judgement in Commissioner of Taxation v Futuris Pty Ltd [2008] HCA 32 ; (2008) 82 ALJR 1177 at 1183, [10] that, "as a matter of discretion, relief under ss 75(v) and s 39B may be (and often will be) withheld where there is another remedy provided by Part IVC".
Case: Commissioner of Taxation v Linter Textiles Australia Limited (In liquidation) [2005] HCA 20 ; (2005) 220 CLR 592
Outcome: cited
The making of a winding up order changes the control of the affairs of a corporation but does not affect its beneficial ownership of its assets: Commissioner of Taxation v Linter Textiles Australia Limited (In liquidation) [2005] HCA 20 ; (2005) 220 CLR 592 at 612-613, [54] . In this regard, the position with respect to corporate insolvency differs from that which prevails in respect of the administration of an individual's bankrupt estate. The effect of s 58(1)(a) of the Bankruptcy Act 1966 (Cth) is that, when a debtor becomes a bankrupt either by the making of a sequestration order or upon the acceptance of a debtor's petition by the Official Receiver, the property of the bankrupt vests forthwith in the Official Trustee or, if there be a registered trustee of the bankrupt's estate, in that registered trustee. 31 When on 5 July 2007 this Court ordered the winding up of PMD and appointed Mr Greig as its liquidator he did not become the beneficial owner of Lot 8. Title to that Lot remained vested in the corporation. It was PMD, not its liquidator, which came to sell Lot 8. Further, insofar as PMD might be thought then to have been in the business of property development, that business, after Mr Greig decided that it ought to be continued for a short time for the purpose of best preserving and then realising Lot 8 as an asset of that corporation, remained the business of the corporation: s 477(1)(a) of the Corporations Act . It did not upon liquidation become Mr Greig's business. Contrary to the submission of the Commissioner, there is no support for any contrary conclusion to be found in s 9-20 of the GST Act . It was no more Mr Greig's business than it was not that of the directors of PMD prior to the making of the winding up order. Indeed, I did not understand the Commissioner to suggest that, before the winding up order, s 9-20 made PMD's business that of its directors. The only business relevantly conducted by Mr Grieg was the practise of his profession as an official liquidator, which included undertaking the liquidation of PMD. As will be seen, when acting in that latter capacity, he constituted an "entity" and "you" for the purposes of the GST Act, If does not follow from his possession of that status that he is liable to GST in respect of the sale of Lot 8.
Case: Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation [1981] HCA 26 ; (1980-1981) 147 CLR 297
Outcome: distinguished
Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation [1981] HCA 26 ; (1980-1981) 147 CLR 297 was referred to in the course of the Commissioner's submissions as providing an alternative basis upon which to find that a liquidator was personally liable for post liquidation supplies. No doubt if the literal meaning of any of the provisions within Div 147 produced an irrational or absurd result this case might be called in aid so as to prefer an alternative construction, especially if that construction was evidently intended by an amending Act having regard to the history of the legislation. The difficulty here though is not with the literal meaning of statutory provisions but with the complete absence of basal deeming provisions necessary to achieve the end of rendering a liquidator personally liable in a way which is contrary to the position prevailing under both the general law and the ordinary position under s 9-5. 57 Within the GST Act it is s 9-5, not any of those in Div 147, which is the leading provision. The elements within s 9-5 are cumulative. To require a liquidator to register is to bring that official within but one of the four elements that cumulatively comprise a "taxable supply", so far as a post liquidation sale of property of the corporation is concerned. The registration requirement does not carry with it the other three. To regard Div 147 as achieving this is to give its provisions a weight that their language cannot bear, especially so as to create a counter intuitive taxation liability on the part of a liquidator. 58 As the GST Act presently stands, the effect of requiring a liquidator of a corporation to register will be that any supplies which the liquidator makes in that "representative" capacity in the event that any property of the corporation is ordered to be vested in him will become a "taxable supply" by him in that capacity; otherwise the disposal of the property of a corporation, insofar as that constitutes a supply for the purposes of the GST Act, will remain a taxable supply by the corporation and have to be accounted for and paid by it accordingly.
Case: Deputy Commissioner of Taxation v Broadbeach Properties Pty Ltd [2008] HCA 41 ; (2008) 82 ALJR 1411
Outcome: cited
No assessment has been raised by the Commissioner in respect of the GST said to owed to the Commonwealth by the liquidator personally as a result of the post-liquidation sale of Lot 8. In these proceedings the tender of such an assessment would have been conclusive evidence of that liability: s 105-100 Sch 1, Taxation Administration Act 1953 ; Deputy Commissioner of Taxation v Broadbeach Properties Pty Ltd [2008] HCA 41 ; (2008) 82 ALJR 1411 , at 1418 [33] and 1420 [40] to [45] .
Case: Director of Public Prosecutions (Victoria) v Le [2007] HCA 52 ; (2007) 232 CLR 562
Outcome: cited
An assertion as to its meaning and effect in an explanatory memorandum circulated by or with the authority of the Minister introducing a Bill into Parliament, like the Second Reading Speech in respect of that Bill, is not a substitute for the language employed by the Parliament in the Bill as enacted: Re Bolton; ex parte Beane [1987] HCA 12 ; (1987) 162 CLR 514 , at 518; Director of Public Prosecutions (Victoria) v Le [2007] HCA 52 ; (2007) 232 CLR 562 at 573, [29] and 586, [85]. It is the duty of the courts to construe enactments, not to make them. If, truly, the language of an enactment does not translate into law a meaning and effect that one might apprehend from secondary materials was intended it is for the Parliament to rectify that by further legislative provision.
Case: Oil Basins Ltd v Commonwealth of Australia [1993] HCA 60 ; (1993) 178 CLR 643
Outcome: cited
Where an assessment has not been made, this Court has jurisdiction to grant declaratory relief in an appropriate case against the Commissioner in respect of a Commonwealth revenue law controversy: s 39B(1A)(c) of the Judiciary Act 1903 (Cth); Oil Basins Ltd v Commonwealth of Australia [1993] HCA 60 ; (1993) 178 CLR 643. Thus, even though the relief sought by the liquidator, insofar as declaratory relief is sought against the Deputy Commissioner, might be thought to extend beyond the bounds of the provision of directions under the Corporations Act , there is ample jurisdiction nonetheless to grant it. As to the cross-claim for declaratory relief made by the Deputy Commissioner, s 39B(1A)(a) of the Judiciary Act is a source of jurisdiction. 20 Jurisdiction to grant declaratory relief is one thing; whether or not as a matter of discretion such relief ought to be granted is another. The Taxation Administration Act 1953 makes comprehensive provision for the resolution of Commonwealth revenue law controversies. That Act contemplates that, ordinarily, the Commissioner's view of the meaning and application of a Commonwealth revenue law will be reflected in an assessment with the recipient of the assessment then being granted, by the provisions of Part IVC of that Act, a right of objection and, if dissatisfied with the Commissioner's objection decision, an ability to challenge the objection decision either by way of review in the Administrative Appeals Tribunal (AAT) or on a so-called "appeal" heard in the original jurisdiction of this Court. 21 Unlike income tax, where liability to pay that tax is not complete until the making of an assessment, liability to pay GST is not dependent on the making of an assessment by the Commissioner. Even so, by s 105-10 in Sch 1, the Taxation Administration Act anticipates that a person whom the Commissioner asserts to be subject to a liability to GST may require the Commissioner to make an assessment, thereby initiating the process that may lead to external merits review by the AAT or the exercise of original jurisdiction by this Court in a taxation appeal.
Case: Muroa Pty Ltd v O'Meara (1997) 15 ACLC 1427
Outcome: cited
It is possible for a liquidator to secure from this Court or another invested with jurisdiction under the Corporations Act an order vesting in him in his official capacity some or all of the property of a corporation being wound up in insolvency: s 474(2) of the Corporations Act . However, as is noted in the definitive Australian text on corporate insolvency law, McPherson's Law of Company Liquidation, p 7-1053, such applications are uncommon given the wide powers conferred on liquidators by the Corporations Act . At least in some jurisdictions, one circumstance which might prompt a liquidator to seek such an order is a need in the course of a liquidation to lodge a caveat: Re Application by the Liquidator of Haupiri Courts Ltd [1969] NZLR 348; Muroa Pty Ltd v O'Meara (1997) 15 ACLC 1427.
Case: Platypus Leasing Inc v Commissioner of Taxation (2005) 61 ATR 239
Outcome: cited
In this case, exceptionally, it seems to me appropriate, as a matter of discretion, not to withhold the granting of declaratory relief. I do so for these reasons. The declaratory relief has been sought in this Court, which unlike these days a State or Territory Supreme Court, is the usual forum for the resolution of Commonwealth revenue law liability controversies. The point raised is novel, controversial not only between the parties but evidently also in academic literature (see Anderson and Morrison, GST and Insolvency Practitioner Liability: Who are you? (2001) 11 Revenue LJ 23) and one of pervasive significance to corporate insolvency administration. The latter factor was recognised by the Deputy Commissioner in submissions and evidenced by his disposition, exceptionally, to pay the liquidator's taxed party and party costs of and incidental to the application in any event and, equally exceptionally, by his obviously considered decision not to make and tender an assessment, which would be the usual course for the Commissioner to adopt in a proceeding such as this in either this Court or, a fortiori , in a State or Territory Supreme Court: see, e.g. Platypus Leasing Inc v Commissioner of Taxation (2005) 61 ATR 239 (NSW Court of Appeal). There is no evidentiary controversy. Further, and as was also conceded on behalf of the Deputy Commissioner in submissions, the point is one always destined for this Court even in the event of assessment with the raising of the same and determination of an objection and attendant delays and related expenses only serving, in the circumstances, further to diminish such funds as may be available for distribution to creditors (principally, the Commissioner on behalf of the Commonwealth). 25 I turn then to consider the substantive revenue law liability question raised in the proceeding.
Case: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 29 ; (1998) 194 CLR 355
Outcome: cited
In their joint judgment in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 29 ; (1998) 194 CLR 355 at 381-382, [69] to [71] McHugh, Gummow, Kirby and Hayne JJ offer an authoritative reminder that consistency as between the relevant statutory provision and the language and purpose of all provisions of the statute is the primary object of statutory construction and of the correlative need to construe a statute as a whole, not piecemeal, with careful regard to context, purpose and with the object of giving sensible meaning to all of the language employed by Parliament. Their Honours also remind that the reconciliation of conflicting provisions may well require the ascertainment of which is the leading provision to which others in apparent conflict should yield so as to achieve, if possible, a conformity of meaning. I accept readily the Deputy Commissioner's submission that these principles should inform the approach to deciding whether Division 147 of the GST Act renders Mr Greig personally liable for GST in respect of the sale of Lot 8.
Case: Re Application by the Liquidator of Haupiri Courts Ltd [1969] NZLR 348
Outcome: cited
It is possible for a liquidator to secure from this Court or another invested with jurisdiction under the Corporations Act an order vesting in him in his official capacity some or all of the property of a corporation being wound up in insolvency: s 474(2) of the Corporations Act . However, as is noted in the definitive Australian text on corporate insolvency law, McPherson's Law of Company Liquidation, p 7-1053, such applications are uncommon given the wide powers conferred on liquidators by the Corporations Act . At least in some jurisdictions, one circumstance which might prompt a liquidator to seek such an order is a need in the course of a liquidation to lodge a caveat: Re Application by the Liquidator of Haupiri Courts Ltd [1969] NZLR 348; Muroa Pty Ltd v O'Meara (1997) 15 ACLC 1427.