mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Commissioner of Taxation v Glennan [1999] FCA 297 ; (1999) 90 FCR 538
Outcome: referred to
paragraph provides: [W]hether the Tribunal erred in law in failing to make any findings or give any consideration as to whether the receipts by the applicant which were treated as consideration for taxable supplies by the respondent were properly to be characterised as financial supplies on which no GST was payable because they were input taxed supplies; The contention here advanced was not advanced by the applicant before the Tribunal. There will be cases where a question of law arises from a failure on the part of the Tribunal to deal with an issue not put to it: see Carpentaria Transport Pty Ltd v Federal Commissioner of Taxation 90 ATC 4590 at 4593 (Davies J), but generally this will not be so, and this case is no exception. There was no error of law on the part of the Tribunal in failing to consider and make findings as to whether the receipts by the applicant were properly to be characterised as consideration for financial supplies on which no GST was payable because they were input taxed supplies. This paragraph does not raise a question of law on which to ground the appeal: Commissioner of Taxation v Perkins 93 ATC 4524 at 4526 (Davies J, with whom French and Heerey JJ concurred); Commissioner of Taxation v Glennan [1999] FCA 297 ; (1999) 90 FCR 538 at [80] [83] (Hill, Sackville and Hely JJ). Paragraphs 2(h) (j)
Case: Commissioner of Taxation v Perkins 93 ATC 4524
Outcome: referred to
paragraph provides: [W]hether the Tribunal erred in law in failing to make any findings or give any consideration as to whether the receipts by the applicant which were treated as consideration for taxable supplies by the respondent were properly to be characterised as financial supplies on which no GST was payable because they were input taxed supplies; The contention here advanced was not advanced by the applicant before the Tribunal. There will be cases where a question of law arises from a failure on the part of the Tribunal to deal with an issue not put to it: see Carpentaria Transport Pty Ltd v Federal Commissioner of Taxation 90 ATC 4590 at 4593 (Davies J), but generally this will not be so, and this case is no exception. There was no error of law on the part of the Tribunal in failing to consider and make findings as to whether the receipts by the applicant were properly to be characterised as consideration for financial supplies on which no GST was payable because they were input taxed supplies. This paragraph does not raise a question of law on which to ground the appeal: Commissioner of Taxation v Perkins 93 ATC 4524 at 4526 (Davies J, with whom French and Heerey JJ concurred); Commissioner of Taxation v Glennan [1999] FCA 297 ; (1999) 90 FCR 538 at [80] [83] (Hill, Sackville and Hely JJ). Paragraphs 2(h) (j)
Case: Culley v Australian Securities and Investments Commission [2008] FCA 1784
Outcome: considered
recently, however, the importance to be attached to the merits of the appeal has, arguably, been downgraded in its ranking among the criteria to be taken into account by the court in exercising its discretion as to whether or not an extension of time should be granted. For example, in Culley v Australian Securities and Investments Commission [2008] FCA 1784 at [5] , Jessup J observed: A party to a proceeding in the Tribunal has an appeal as of right on a question of law. Such an appeal is in the nature of a new proceeding in the original jurisdiction of the court. It is unnecessary for an applicant in such an appeal to have grounds of any particular strength or intrinsic merit (although I recognise, of course, the relevance of s 31A of the Federal Court of Australia Act 1976 (Cth) in these, as in all other, original proceedings). For this reason (and perhaps the more so because of the availability of s 31A) , I consider that the court should be slow to reject an application for an extension of time under s 44(2A) of the AAT Act, where otherwise the principles in Hunter are appropriately satisfied, for no reason other than that the appeal, if prosecuted, would be unlikely even very unlikely to succeed. I note that this was effectively the approach taken by the court in Mustafa v Chief Executive Officer, Centrelink [2000] FCA 1897 and in Wiegand v Comcare Australia [2005] FCA 1904. I consider that such an approach would be consistent with that taken by Fitzgerald J in Lucic [ v Nolan (1982) 45 ALR 411] and, because his Honour followed Lucic , by Wilcox J in Hunter .
Case: Federal Commissioner of Taxation v Brown [1999] FCA 1198 ; 99 ATC 4852 
Outcome: cited
Commissioner's opposition to the grant of an extension of time for the applicant to file a notice of appeal from the decision of the Tribunal was mainly, indeed wholly, grounded on the principle in (5), namely, the merits of the applicant's proposed appeal. In submissions, the Commissioner referred to the fact that in Federal Commissioner of Taxation v Brown [1999] FCA 1198 ; 99 ATC 4852 at [12] a Full Court of this Court referred to that matter as an 'important consideration'; an applicant should show that he or she has an 'arguable case' to warrant an extension of time: Brown , at first instance [1999] FCA 563 ; , 99 ATC 4516 at [56] per Hill J, accepting the view of von Doussa J in Windshuttle v Deputy Federal Commissioner of Taxation [1993] FCA 553 ; (1993) 46 FCR 235 at 243.
Case: Price Street Professional Centre Pty Ltd v Commissioner of Taxation [2007] FCAFC 154 ; (2007) 243 ALR 728
Outcome: cited
lack of compliance was not articulated with any great precision or clarity. It was said that the grounds in the amended draft notice of appeal 'are little more than a duplication of the alleged question of law'. Grounds 4(a) to 4(j) differ only from the corresponding alleged questions of law in two ways: first, the word 'whether' is omitted from the opening words so that each paragraph is no longer prefaced as a question and; second, statutory references are inserted. But as the Commissioner acknowledges in his referral to various quotations from cases such as Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 ; (2003) 133 FCR 290 at [47] (Branson J); Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 523 (Ryan J); Young v Commissioner of Taxation [2008] FCA 1908 at [19] (Gilmour J); Price Street Professional Centre Pty Ltd v Commissioner of Taxation [2007] FCAFC 154 ; (2007) 243 ALR 728 at [75] (Greenwood J); and Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 ; (2003) 38 AAR 55 at [18] (Branson and Stone JJ), because the existence of a question of law is not merely a qualifying condition to ground the appeal, but must be the subject matter of the appeal itself see TNT Skypak International (Aust.) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175 at 178 (Gummow J) there should be a link or symmetry between the question raised and the ground relied upon. Subject to the question raised being truly a pure question of law (see Birdseye at [18] (Branson and Stone JJ)), the applicant's articulation of the grounds in the manner assailed by the Commissioner may well provide the necessary link or symmetry. I would not exercise my discretion to refuse to extend time on the basis that the amended draft notice of appeal does not comply with 0 53 r 3(2)(d).
Case: Tey v Commissioner of Taxation [2007] FCA 920
Outcome: referred to
his Honour at [6] went on: While it will be apparent that I do not consider that an application for an extension of time is an occasion for any more than the most cursory examination of the merits of the proposed proceeding, nonetheless I recognise that, if such an examination does reveal the proceeding as being conspicuously devoid of merit, the application might well be rejected upon the ground that the prosecution of it would, in effect, be pointless. In relation to this last observation, see Tey v Commissioner of Taxation [2007] FCA 920 at [28] [33] per Gilmour J. Having regard to the following facts and circumstances, namely: (1) That Mr Hua, an unqualified person, appeared on behalf of the applicant at the hearing before the Tribunal; (2) the evidence embodied in Ex. 2, none of which was challenged; and (3) the evidence embodied in Ex. 1, none of which was challenged, I am satisfied that the only relevant consideration, a conclusion on which might militate against an exercise of discretion to extend the time for filing a notice of appeal, is whether the grounds of appeal as articulated in the amended draft notice of appeal disclose an arguable case, even if it is unlikely to succeed, or whether they are so devoid of merit as to render prosecution of the appeal pointless. Before turning to that issue, it is necessary that I deal with the various bases upon which the Commissioner assailed the amended draft notice of appeal. The Commissioner assailed the grounds relied on in the amended draft notice of appeal on an holistic basis claiming that they did not comply with O 53 r 3(2)(d) of the Rules which expressly provides that a notice of appeal must state 'briefly, but specifically, the grounds relied upon in support of the order sought'.
Case: TNT Skypak International (Aust.) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175
Outcome: cited
lack of compliance was not articulated with any great precision or clarity. It was said that the grounds in the amended draft notice of appeal 'are little more than a duplication of the alleged question of law'. Grounds 4(a) to 4(j) differ only from the corresponding alleged questions of law in two ways: first, the word 'whether' is omitted from the opening words so that each paragraph is no longer prefaced as a question and; second, statutory references are inserted. But as the Commissioner acknowledges in his referral to various quotations from cases such as Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 ; (2003) 133 FCR 290 at [47] (Branson J); Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 523 (Ryan J); Young v Commissioner of Taxation [2008] FCA 1908 at [19] (Gilmour J); Price Street Professional Centre Pty Ltd v Commissioner of Taxation [2007] FCAFC 154 ; (2007) 243 ALR 728 at [75] (Greenwood J); and Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 ; (2003) 38 AAR 55 at [18] (Branson and Stone JJ), because the existence of a question of law is not merely a qualifying condition to ground the appeal, but must be the subject matter of the appeal itself see TNT Skypak International (Aust.) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175 at 178 (Gummow J) there should be a link or symmetry between the question raised and the ground relied upon. Subject to the question raised being truly a pure question of law (see Birdseye at [18] (Branson and Stone JJ)), the applicant's articulation of the grounds in the manner assailed by the Commissioner may well provide the necessary link or symmetry. I would not exercise my discretion to refuse to extend time on the basis that the amended draft notice of appeal does not comply with 0 53 r 3(2)(d).
Case: Windshuttle v Deputy Federal Commissioner of Taxation [1993] FCA 553 ; (1993) 46 FCR 235
Outcome: cited
Commissioner's opposition to the grant of an extension of time for the applicant to file a notice of appeal from the decision of the Tribunal was mainly, indeed wholly, grounded on the principle in (5), namely, the merits of the applicant's proposed appeal. In submissions, the Commissioner referred to the fact that in Federal Commissioner of Taxation v Brown [1999] FCA 1198 ; 99 ATC 4852 at [12] a Full Court of this Court referred to that matter as an 'important consideration'; an applicant should show that he or she has an 'arguable case' to warrant an extension of time: Brown , at first instance [1999] FCA 563 ; , 99 ATC 4516 at [56] per Hill J, accepting the view of von Doussa J in Windshuttle v Deputy Federal Commissioner of Taxation [1993] FCA 553 ; (1993) 46 FCR 235 at 243.
Case: Young v Commissioner of Taxation [2008] FCA 1908
Outcome: cited
lack of compliance was not articulated with any great precision or clarity. It was said that the grounds in the amended draft notice of appeal 'are little more than a duplication of the alleged question of law'. Grounds 4(a) to 4(j) differ only from the corresponding alleged questions of law in two ways: first, the word 'whether' is omitted from the opening words so that each paragraph is no longer prefaced as a question and; second, statutory references are inserted. But as the Commissioner acknowledges in his referral to various quotations from cases such as Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 ; (2003) 133 FCR 290 at [47] (Branson J); Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 523 (Ryan J); Young v Commissioner of Taxation [2008] FCA 1908 at [19] (Gilmour J); Price Street Professional Centre Pty Ltd v Commissioner of Taxation [2007] FCAFC 154 ; (2007) 243 ALR 728 at [75] (Greenwood J); and Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 ; (2003) 38 AAR 55 at [18] (Branson and Stone JJ), because the existence of a question of law is not merely a qualifying condition to ground the appeal, but must be the subject matter of the appeal itself see TNT Skypak International (Aust.) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175 at 178 (Gummow J) there should be a link or symmetry between the question raised and the ground relied upon. Subject to the question raised being truly a pure question of law (see Birdseye at [18] (Branson and Stone JJ)), the applicant's articulation of the grounds in the manner assailed by the Commissioner may well provide the necessary link or symmetry. I would not exercise my discretion to refuse to extend time on the basis that the amended draft notice of appeal does not comply with 0 53 r 3(2)(d).
Case: Printing &amp; Kindred Industries Union &amp; Anor v Davies Bros Ltd (1986) 18 IR 444
Outcome: cited
caution must be exercised in attempting to rely upon the conduct of parties to an award or agreement as an aid in the interpretation of that award or agreement. Plainly, conduct subsequent to the making of an award or agreement is inadmissible as an aid to interpretation. See Seamen's Union of Australia v Adelaide Steamship Co Ltd (1976) 46 FLR 444 at 445 and Printing &amp; Kindred Industries Union &amp; Anor v Davies Bros Ltd (1986) 18 IR 444 at 452. Only if it can be shown that there is a history of the use of a particular term with a particular meaning, sufficient to demonstrate a common understanding between or among the parties to an award or agreement that the term has that meaning, is there any possibility that the conduct of the parties can be relied on. The evidence in the present case goes nowhere near establishing such a common understanding. It would be necessary to show that the word "service" had been used in the same context in a previous Award or agreement, now superseded by the Award, and for there to be clear evidence that both the applicant and the first respondent understood the word to have a particular restricted meaning in that context. There is no evidence of either of these kinds in the present case. Such evidence as there is about custom and practice in the appointment by the first respondent by employees to classifications seems to indicate that there is a recognition that it is not always possible, or advisable, to rely upon the experience levels specified in the definitions in cl 2.9 of the Award strictly. There have been cases of accelerated advancement, when there have been vacancies in positions requiring particular classifications, and shortages of employees with the length of experience designated for those classifications. There is evidence that the Union actively assisted in the promotion of one firefighter, who had emigrated from England, because of the high level of his skills as a result of his long service with a firefighting authority in England. Custom and practice provides no support for the proposition that the word "service" should be given a particular restricted meaning when it is used in cl 2.9 of the Award.
Case: Seamen's Union of Australia v Adelaide Steamship Co Ltd (1976) 46 FLR 444
Outcome: cited
caution must be exercised in attempting to rely upon the conduct of parties to an award or agreement as an aid in the interpretation of that award or agreement. Plainly, conduct subsequent to the making of an award or agreement is inadmissible as an aid to interpretation. See Seamen's Union of Australia v Adelaide Steamship Co Ltd (1976) 46 FLR 444 at 445 and Printing &amp; Kindred Industries Union &amp; Anor v Davies Bros Ltd (1986) 18 IR 444 at 452. Only if it can be shown that there is a history of the use of a particular term with a particular meaning, sufficient to demonstrate a common understanding between or among the parties to an award or agreement that the term has that meaning, is there any possibility that the conduct of the parties can be relied on. The evidence in the present case goes nowhere near establishing such a common understanding. It would be necessary to show that the word "service" had been used in the same context in a previous Award or agreement, now superseded by the Award, and for there to be clear evidence that both the applicant and the first respondent understood the word to have a particular restricted meaning in that context. There is no evidence of either of these kinds in the present case. Such evidence as there is about custom and practice in the appointment by the first respondent by employees to classifications seems to indicate that there is a recognition that it is not always possible, or advisable, to rely upon the experience levels specified in the definitions in cl 2.9 of the Award strictly. There have been cases of accelerated advancement, when there have been vacancies in positions requiring particular classifications, and shortages of employees with the length of experience designated for those classifications. There is evidence that the Union actively assisted in the promotion of one firefighter, who had emigrated from England, because of the high level of his skills as a result of his long service with a firefighting authority in England. Custom and practice provides no support for the proposition that the word "service" should be given a particular restricted meaning when it is used in cl 2.9 of the Award.
Case: Shipping Corporation of India Ltd v Gamlen Chemical Co (A/Asia) Pty Ltd [1980] HCA 51 ; (1980) 147 CLR 142
Outcome: cited
The international conventions that govern the carriage of goods by sea using bills of lading and similar documents in non-charterparty carriage deal variously with onus or burden of proof. The issues that can be raised in respect of the respective and related operation of Articles 3 and 4 of the Hague Rules and the Hague-Visby Rules are not straightforward (despite the passage of over 80 years from the conferences at London, The Hague and Brussels) and not finally settled: cf Shipping Corporation of India Ltd v Gamlen Chemical Co (A/Asia) Pty Ltd [1980] HCA 51 ; (1980) 147 CLR 142, Great China Metal Industries Co Ltd v Malaysian International Shipping Corporation Berhad [1998] HCA 65 ; (1999) 196 CLR 161 and Davies M and Dickey A, Shipping Law (Lawbook Co, 2004) at 212-213 . The Hamburg Rules in Article 5 sought to remove the complexities of this onus question by substantially shifting the onus to the carrier. These rules have not received universal acclaim. With the exception of some aspects borrowed from them, they do not form the basis of Australian, Hong Kong or Chinese law, which were the alternatives governing this carriage.
Case: Great China Metal Industries Co Ltd v Malaysian International Shipping Corporation Berhad [1998] HCA 65 ; (1999) 196 CLR 161
Outcome: cited
The international conventions that govern the carriage of goods by sea using bills of lading and similar documents in non-charterparty carriage deal variously with onus or burden of proof. The issues that can be raised in respect of the respective and related operation of Articles 3 and 4 of the Hague Rules and the Hague-Visby Rules are not straightforward (despite the passage of over 80 years from the conferences at London, The Hague and Brussels) and not finally settled: cf Shipping Corporation of India Ltd v Gamlen Chemical Co (A/Asia) Pty Ltd [1980] HCA 51 ; (1980) 147 CLR 142, Great China Metal Industries Co Ltd v Malaysian International Shipping Corporation Berhad [1998] HCA 65 ; (1999) 196 CLR 161 and Davies M and Dickey A, Shipping Law (Lawbook Co, 2004) at 212-213 . The Hamburg Rules in Article 5 sought to remove the complexities of this onus question by substantially shifting the onus to the carrier. These rules have not received universal acclaim. With the exception of some aspects borrowed from them, they do not form the basis of Australian, Hong Kong or Chinese law, which were the alternatives governing this carriage.
Case: JJ Stratford &amp; Son Ltd v Lindley (No 2) [1969] 1 WLR 1547
Outcome: applied
There is force in the proposition of the plaintiffs that in circumstances such as these where the parties have argued to abandon the litigation because of the disproportionate burden of costs, the Court should be slow to order costs against the plaintiff: cf JJ Stratford &amp; Son Ltd v Lindley (No 2) [1969] 1 WLR 1547 at 1553-54 and Australian Securities Commission v Aust-Home Investments Limited (1993) 116 ALR 523 at 530. Relevant of course is the default such that the party who discontinues often pays costs: O'Neill v Mann [2000] FCA 1650 at [13] . It is appropriate, however, to look at the whole of the circumstances including the kinds of considerations to which I earlier referred, the reasonableness and efficiency of the conduct of the proceedings by all parties, the extent to which parties who were asserting that they were not liable frankly informed the plaintiff with substantiating material of their position, and the contemporaneous views of the commercial parties as to an appropriate course.
Case: Australian Securities Commission v Aust-Home Investments Limited (1993) 116 ALR 523
Outcome: applied
There is force in the proposition of the plaintiffs that in circumstances such as these where the parties have argued to abandon the litigation because of the disproportionate burden of costs, the Court should be slow to order costs against the plaintiff: cf JJ Stratford &amp; Son Ltd v Lindley (No 2) [1969] 1 WLR 1547 at 1553-54 and Australian Securities Commission v Aust-Home Investments Limited (1993) 116 ALR 523 at 530. Relevant of course is the default such that the party who discontinues often pays costs: O'Neill v Mann [2000] FCA 1650 at [13] . It is appropriate, however, to look at the whole of the circumstances including the kinds of considerations to which I earlier referred, the reasonableness and efficiency of the conduct of the proceedings by all parties, the extent to which parties who were asserting that they were not liable frankly informed the plaintiff with substantiating material of their position, and the contemporaneous views of the commercial parties as to an appropriate course.