mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Smith v Zinifex Australia Ltd [2008] FCA 532
Outcome: cited
Zinifex became aware of these proceedings when it was served with the application and statement of claim in December 2007. It sought a determination that the applicant was not empowered to bring the current proceedings. I decided that objection adversely to Zinifex: Smith v Zinifex Australia Ltd [2008] FCA 532. After that decision was handed down Zinifex co-operated with the enforcement authority and has agreed to these facts without the need for a trial. Although the Zinifex objection failed, it was clearly arguable and not an exercise in delay or obstruction. 29 In my opinion the foregoing facts would provide some mitigation for the contraventions by Zinifex. The contraventions were not the implementation of a deliberate policy, but rather arose out of a reaction to the particular circumstance created by the TIC decision. In the light of Zinifex's industrial history and the fact that it no longer has any connection with Smelter, there is not a substantial need for specific deterrence in this case. On the other hand, the contraventions are of a law regarded seriously by the Parliament, as the maximum penalties indicate. General deterrence is relevant. I think in all circumstances the penalties sought to be imposed are reasonable. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate: Dated: 5 December 2008 Counsel for the Applicant: C Rawson Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: S J Wood Solicitor for the Respondent: Minter Ellison Date of Hearing: 1 December 2008 Date of Judgment: 5 December 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1836.html
Case: Krampel Newman Partners Pty Ltd v Commissioner of Taxation [2001] FCA 976 ; (2001) 113 FCR 306
Outcome: followed
In Krampel Newman Partners Pty Ltd v Commissioner of Taxation [2001] FCA 976 ; (2001) 113 FCR 306 at 312, [15] , Ryan J concluded that s 14ZZN of the TAA does not evince an intention contrary to the effect of s 23 of the Acts Interpretation Act 1901 (Cth), which is that the singular includes the plural. I respectfully agree. Thus, there is nothing in s 14ZZN of the TAA which forbids the inclusion in the form of initiating application which is lodged with this Court of appeals against more than one objection decision. 10 Krampel Newman concerned objection decisions each of which related to objections against income tax assessments. Does it make any difference here that one of the primary tax liabilities is in respect of income tax and the other is in respect of a net amount for the purposes of the GST Act ? In my opinion it does not, for the following additional reasons. 11 Another feature of s 14ZZN is that it makes indifferent, generic provision for an appeal in respect of whatever constitutes an "appealable objection decision", as defined. That definition is to be found in s 14ZQ of the TAA. The effect of that definition is that, subject to an exception that is of no present relevance, an "appealable objection decision" is any "objection decision", another term defined by s 14ZQ. That definition, in turn, directs one to s 14ZY(2) of the TAA. Again subject to an exception of no present relevance, the effect of that subsection is that an "objection decision" is any decision of the Commissioner in respect of a "taxation objection". "Taxation objection", too, is a defined term (again, s 14ZQ) and that definition provides that a "taxation objection" has the meaning given in s 14ZL. I have already made some reference above to s 14ZL. It suffices to add that the effect of s 14ZL(2) is that an objection to which Part IVC of the TAA applies is a "taxation objection". 12 By this circuitous path the position reached is that each of the objection decisions with which Mr Russell is dissatisfied and to which he refers in the application he filed may be the subject of an appeal to this court under s 14ZZN of the TAA. Each is an "appealable objection decision". There is nothing in s 14ZZN which explicitly mandates that an "appeal" lodged with the Court is competent only if it concerns one or more assessments in respect of the same type of taxation liability.
Case: Deputy Commissioner of Taxation v Brown [1958] HCA 2 ; (1957-1958) 100 CLR 32
Outcome: considered
There is also good reason not to imply any such intention. In Deputy Commissioner of Taxation v Brown [1958] HCA 2 ; (1957-1958) 100 CLR 32 , at 40-41 Dixon CJ noted, albeit as he acknowledged without at the time a judicial decision to that effect, that it was generally assumed that " under the Constitution liability for tax could not be imposed upon a subject without leaving open to him some judicial process by which he could show that he was not taxable or not taxable in the sum assessed ". As Dawson J later noted in Deputy Commissioner of Taxation v Richard Walter Pty Ltd [1995] HCA 23 ; (1994-1995) 183 CLR 168 , at 222, the general assumption to which Sir Owen Dixon referred did receive later judicial recognition: (His Honour referred to MacCormick v Federal Commissioner of Taxation [1984] HCA 20 ; (1984) 158 CLR 622 ; Deputy Commissioner of Taxation v Truhold Benefit Pty. Ltd. [1985] HCA 36 ; (1985) 158 CLR 678 at 684 ; Air Caledonie International v The Commonwealth [1988] HCA 61 ; (1988) 165 CLR 462 at 467). Section 14ZZN of the TAA therefore serves the important constitutional end of expressly providing for recourse by the person affected to the judicial power of the Commonwealth for a challenge to an administratively assessed taxation liability. Section 15A of the Acts Interpretation Act 1901 (Cth) counsels that Acts should be read and construed subject to the Constitution and so as not to exceed Commonwealth legislative power. Section 14ZZN provides for a fixed time limit within which to engage this constitutionally necessary right of challenge. In the face of language that did not expressly forbid the practice and whose language was broad enough on its face to permit it, it would be a strong thing to discern by implication a prohibition as to joinder which would foreclose by a technicality of form such an important and necessary right.
Case: Deputy Commissioner of Taxation v Richard Walter Pty Ltd [1995] HCA 23 ; (1994-1995) 183 CLR 168
Outcome: cited
There is also good reason not to imply any such intention. In Deputy Commissioner of Taxation v Brown [1958] HCA 2 ; (1957-1958) 100 CLR 32 , at 40-41 Dixon CJ noted, albeit as he acknowledged without at the time a judicial decision to that effect, that it was generally assumed that " under the Constitution liability for tax could not be imposed upon a subject without leaving open to him some judicial process by which he could show that he was not taxable or not taxable in the sum assessed ". As Dawson J later noted in Deputy Commissioner of Taxation v Richard Walter Pty Ltd [1995] HCA 23 ; (1994-1995) 183 CLR 168 , at 222, the general assumption to which Sir Owen Dixon referred did receive later judicial recognition: (His Honour referred to MacCormick v Federal Commissioner of Taxation [1984] HCA 20 ; (1984) 158 CLR 622 ; Deputy Commissioner of Taxation v Truhold Benefit Pty. Ltd. [1985] HCA 36 ; (1985) 158 CLR 678 at 684 ; Air Caledonie International v The Commonwealth [1988] HCA 61 ; (1988) 165 CLR 462 at 467). Section 14ZZN of the TAA therefore serves the important constitutional end of expressly providing for recourse by the person affected to the judicial power of the Commonwealth for a challenge to an administratively assessed taxation liability. Section 15A of the Acts Interpretation Act 1901 (Cth) counsels that Acts should be read and construed subject to the Constitution and so as not to exceed Commonwealth legislative power. Section 14ZZN provides for a fixed time limit within which to engage this constitutionally necessary right of challenge. In the face of language that did not expressly forbid the practice and whose language was broad enough on its face to permit it, it would be a strong thing to discern by implication a prohibition as to joinder which would foreclose by a technicality of form such an important and necessary right.
Case: MacCormick v Federal Commissioner of Taxation (1984)158 CLR 622
Outcome: cited
There is also good reason not to imply any such intention. In Deputy Commissioner of Taxation v Brown [1958] HCA 2 ; (1957-1958) 100 CLR 32 , at 40-41 Dixon CJ noted, albeit as he acknowledged without at the time a judicial decision to that effect, that it was generally assumed that " under the Constitution liability for tax could not be imposed upon a subject without leaving open to him some judicial process by which he could show that he was not taxable or not taxable in the sum assessed ". As Dawson J later noted in Deputy Commissioner of Taxation v Richard Walter Pty Ltd [1995] HCA 23 ; (1994-1995) 183 CLR 168 , at 222, the general assumption to which Sir Owen Dixon referred did receive later judicial recognition: (His Honour referred to MacCormick v Federal Commissioner of Taxation [1984] HCA 20 ; (1984) 158 CLR 622 ; Deputy Commissioner of Taxation v Truhold Benefit Pty. Ltd. [1985] HCA 36 ; (1985) 158 CLR 678 at 684 ; Air Caledonie International v The Commonwealth [1988] HCA 61 ; (1988) 165 CLR 462 at 467). Section 14ZZN of the TAA therefore serves the important constitutional end of expressly providing for recourse by the person affected to the judicial power of the Commonwealth for a challenge to an administratively assessed taxation liability. Section 15A of the Acts Interpretation Act 1901 (Cth) counsels that Acts should be read and construed subject to the Constitution and so as not to exceed Commonwealth legislative power. Section 14ZZN provides for a fixed time limit within which to engage this constitutionally necessary right of challenge. In the face of language that did not expressly forbid the practice and whose language was broad enough on its face to permit it, it would be a strong thing to discern by implication a prohibition as to joinder which would foreclose by a technicality of form such an important and necessary right.
Case: Deputy Commissioner of Taxation v Truhold Benefit Pty. Ltd. [1985] HCA 36 ; (1985) 158 CLR 678
Outcome: cited
There is also good reason not to imply any such intention. In Deputy Commissioner of Taxation v Brown [1958] HCA 2 ; (1957-1958) 100 CLR 32 , at 40-41 Dixon CJ noted, albeit as he acknowledged without at the time a judicial decision to that effect, that it was generally assumed that " under the Constitution liability for tax could not be imposed upon a subject without leaving open to him some judicial process by which he could show that he was not taxable or not taxable in the sum assessed ". As Dawson J later noted in Deputy Commissioner of Taxation v Richard Walter Pty Ltd [1995] HCA 23 ; (1994-1995) 183 CLR 168 , at 222, the general assumption to which Sir Owen Dixon referred did receive later judicial recognition: (His Honour referred to MacCormick v Federal Commissioner of Taxation [1984] HCA 20 ; (1984) 158 CLR 622 ; Deputy Commissioner of Taxation v Truhold Benefit Pty. Ltd. [1985] HCA 36 ; (1985) 158 CLR 678 at 684 ; Air Caledonie International v The Commonwealth [1988] HCA 61 ; (1988) 165 CLR 462 at 467). Section 14ZZN of the TAA therefore serves the important constitutional end of expressly providing for recourse by the person affected to the judicial power of the Commonwealth for a challenge to an administratively assessed taxation liability. Section 15A of the Acts Interpretation Act 1901 (Cth) counsels that Acts should be read and construed subject to the Constitution and so as not to exceed Commonwealth legislative power. Section 14ZZN provides for a fixed time limit within which to engage this constitutionally necessary right of challenge. In the face of language that did not expressly forbid the practice and whose language was broad enough on its face to permit it, it would be a strong thing to discern by implication a prohibition as to joinder which would foreclose by a technicality of form such an important and necessary right.
Case: Air Caledonie International v The Commonwealth [1988] HCA 61 ; (1988) 165 CLR 462
Outcome: cited
There is also good reason not to imply any such intention. In Deputy Commissioner of Taxation v Brown [1958] HCA 2 ; (1957-1958) 100 CLR 32 , at 40-41 Dixon CJ noted, albeit as he acknowledged without at the time a judicial decision to that effect, that it was generally assumed that " under the Constitution liability for tax could not be imposed upon a subject without leaving open to him some judicial process by which he could show that he was not taxable or not taxable in the sum assessed ". As Dawson J later noted in Deputy Commissioner of Taxation v Richard Walter Pty Ltd [1995] HCA 23 ; (1994-1995) 183 CLR 168 , at 222, the general assumption to which Sir Owen Dixon referred did receive later judicial recognition: (His Honour referred to MacCormick v Federal Commissioner of Taxation [1984] HCA 20 ; (1984) 158 CLR 622 ; Deputy Commissioner of Taxation v Truhold Benefit Pty. Ltd. [1985] HCA 36 ; (1985) 158 CLR 678 at 684 ; Air Caledonie International v The Commonwealth [1988] HCA 61 ; (1988) 165 CLR 462 at 467). Section 14ZZN of the TAA therefore serves the important constitutional end of expressly providing for recourse by the person affected to the judicial power of the Commonwealth for a challenge to an administratively assessed taxation liability. Section 15A of the Acts Interpretation Act 1901 (Cth) counsels that Acts should be read and construed subject to the Constitution and so as not to exceed Commonwealth legislative power. Section 14ZZN provides for a fixed time limit within which to engage this constitutionally necessary right of challenge. In the face of language that did not expressly forbid the practice and whose language was broad enough on its face to permit it, it would be a strong thing to discern by implication a prohibition as to joinder which would foreclose by a technicality of form such an important and necessary right.
Case: Peerless Marine Pty Ltd v Commissioner of Taxation [2006] AATA 765 ; (2006) 63 ATR 1303
Outcome: cited
Moreover, the prospect that out of a single investigation by the Commissioner's staff there might emerge controversies in respect of both a GST and an income tax liability is by no means remote. The present case apart, in Peerless Marine Pty Ltd v Commissioner of Taxation [2006] AATA 765 ; (2006) 63 ATR 1303 what emerged from the one investigation was a controversy as to whether the taxpayer was carrying on a business such that it was entitled to allowable deductions for expenditure incurred in the construction of what was alleged to be a prototype for a class of luxury motor cruiser and a related GST controversy as to whether, in respect of that same expenditure, it was entitled to input tax credits. The taxpayer elected to challenge the objection decisions in the Administrative Appeals Tribunal ("Tribunal") rather than in this Court and the Tribunal heard and determined the GST and income tax controversies together. Had it sought to appeal those decisions, s 14ZZN of the TAA would have permitted the joinder of those appeals in the one application, in my opinion. A construction of s 14ZZN which would facilitate such joinder has about it such an obvious convenience and practicality that it is to be preferred to one which would not. 15 Thus, the mere fact that Mr Russell has chosen to join in the one form of application appeals in respect of both income tax and GST assessments and related administrative penalty assessments does not, of itself render any of the appeals incompetent. 16 That is not to say that the adoption of such a course binds the Court to hear each of the appeals together. On some occasions it may be convenient to hear and determine a GST appeal together with an income tax appeal; on other occasions it may not be. Order 52B r 3 incorporates by reference, inter alia, the directions hearing provision made by O 52A r 13. Questions as to whether there ought to be separate hearings would be apt subjects for determination at a directions hearing.
Case: Seal and Edgelaw v Kingston [1908] 2 KB 579
Outcome: cited
Were a partner's liability for GST only joint, the Commissioner's submission might have some attraction. Under the general law of partnership (and prior to the death of any of the partners) every partner in a firm is liable jointly with the other partners for all debts and obligations of the firm incurred while a partner: s 12(1) of the Partnership Act 1891 (Qld). The rules of court provide that, subject to any grant of leave to the contrary, where an applicant claims relief to which any other person is entitled jointly with him, all persons so entitled shall be parties with him: O 6, r 3(1) of the Federal Court Rules . Further, O 42 r 2 of the Federal Court Rules permits a claim brought by two or more persons claiming as partners to be brought in the name of the partnership. When so brought any party may apply on notice to be furnished with the names and places of residence of those who were partners at the time when the cause of action arose: O 42 r 3 of the Federal Court Rules . It is possible for a partner to institute proceedings in the name of the partnership without the prior consent of his fellow partners but, if such a course of action is taken, the court may direct that the proceeding be stayed until that partner has given his fellow partners a full indemnity, together with security in respect of costs: Seal and Edgelaw v Kingston [1908] 2 KB 579, at 582.
Case: In the matter of Global Food Equipment Pty Ltd (Under Administration); Carter v Global Food Equipment Pty Ltd (2007) 25 ACLC 1173 ; [2007] NSWSC 901
Outcome: cited
Daisytek [2003] FCA 575 ; 45 ACSR 446 , I noted that the granting of an extension of time left untouched the problem that s 439A(2) required that the meeting be held within five business days after the extended convening period. The 2007 Act altered the position to require that the meeting be held within five business days before or within five business days after the end of the convening period or that period as extended. The plaintiffs seek an order under s 447A of the Act that would permit the holding of the meeting at any time within the period of the extended convening period and five business days thereafter. It was my opinion that such a " Daisytek order" should be made. Such an order has often been made; cf Lombe [2009] NSWSC 110 , In the matter of Global Food Equipment Pty Ltd (Under Administration); Carter v Global Food Equipment Pty Ltd (2007) 25 ACLC 1173 ; [2007] NSWSC 901 (White J); In the matter of LED Builders Pty Ltd (Administrators Appointed) [2008] NSWSC 633 (Austin J).
Case: In the matter of LED Builders Pty Ltd (Administrators Appointed) [2008] NSWSC 633
Outcome: cited
Daisytek [2003] FCA 575 ; 45 ACSR 446 , I noted that the granting of an extension of time left untouched the problem that s 439A(2) required that the meeting be held within five business days after the extended convening period. The 2007 Act altered the position to require that the meeting be held within five business days before or within five business days after the end of the convening period or that period as extended. The plaintiffs seek an order under s 447A of the Act that would permit the holding of the meeting at any time within the period of the extended convening period and five business days thereafter. It was my opinion that such a " Daisytek order" should be made. Such an order has often been made; cf Lombe [2009] NSWSC 110 , In the matter of Global Food Equipment Pty Ltd (Under Administration); Carter v Global Food Equipment Pty Ltd (2007) 25 ACLC 1173 ; [2007] NSWSC 901 (White J); In the matter of LED Builders Pty Ltd (Administrators Appointed) [2008] NSWSC 633 (Austin J).
Case: Lombe re Australian Discount Retail Pty Ltd [2009] NSWSC 110 
Outcome: cited
Lombe re Australian Discount Retail Pty Ltd [2009] NSWSC 110 ( Lombe ), Barrett J noted the changes made by the 2007 Act to subss 439A(5) and (6), and the introduction of the new subss (7) and (8). His Honour observed (at [29]) that there is a question as to whether s 439A as amended has caused s 439A(6) to be available on successive occasions. The present application is the first application for an extension and therefore the question does not arise before me. Counsel submitted that s 439A(7) is applicable, but it is not. That subsection, which provides that the Court may extend the convening period only if satisfied that it would be in the best interests of the creditors to do so, applies only where the application for the extension is made after the convening period has expired. In the present case, the application was made during the convening period. In Daisytek [2003] FCA 575 ; 45 ACSR 446 , I noted that the granting of an extension of time left untouched the problem that s 439A(2) required that the meeting be held within five business days after the extended convening period. The 2007 Act altered the position to require that the meeting be held within five business days before or within five business days after the end of the convening period or that period as extended. The plaintiffs seek an order under s 447A of the Act that would permit the holding of the meeting at any time within the period of the extended convening period and five business days thereafter. It was my opinion that such a " Daisytek order" should be made. Such an order has often been made; cf Lombe [2009] NSWSC 110 , In the matter of Global Food Equipment Pty Ltd (Under Administration); Carter v Global Food Equipment Pty Ltd (2007) 25 ACLC 1173 ; [2007] NSWSC 901 (White J); In the matter of LED Builders Pty Ltd (Administrators Appointed) [2008] NSWSC 633 (Austin J).
Case: Re AFG Insurances Ltd [2002] NSWSC 803
Outcome: cited
extensions have been granted where the administrator's investigations are complex, see, for example Re AFG Insurances Ltd [2002] NSWSC 803 (Barrett J) (five months); Re Chemeq Ltd (Administrators Appointed) ; ex parte McMaster [2007] WASC 154 (Le Miere J) (almost six months); ABC Learning Centres [2009] FCA 454 (Emmett J) (ten months).
Case: Re Chemeq Ltd (Administrators Appointed) ; ex parte McMaster [2007] WASC 154
Outcome: cited
extensions have been granted where the administrator's investigations are complex, see, for example Re AFG Insurances Ltd [2002] NSWSC 803 (Barrett J) (five months); Re Chemeq Ltd (Administrators Appointed) ; ex parte McMaster [2007] WASC 154 (Le Miere J) (almost six months); ABC Learning Centres [2009] FCA 454 (Emmett J) (ten months).