mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Tasmania Development &amp; Resources v Martin [1999] FCA 593 ; (2000) 97 IR 66
Outcome: followed
Courts of this Court have applied the "loss of a chance" approach to the assessment of damages for breaches of employment contracts. In Tasmania Development and Resources v Martin [1999] FCA 593 ; (2000) 97 IR 66 the Full Court upheld the trial judge's decision to award damages to reflect the applicant's loss of the prospect that his contract would be renewed even though he had no legal right to renewal. The applicant was employed by a statutory authority. He was employed on a three year contract. After about 18 months his employment was terminated on the grounds of redundancy. The trial judge found that the contract had been terminated by the statutory authority in breach of a provision which required that there be consultation between employer and employee before an employee was terminated for redundancy. The trial judge held that, had the contract not been wrongly terminated, the employee would have enjoyed its benefits for the remainder of the three year term. He allowed damages for that period. He also allowed a further sum to compensate the employee for loss of the chance of obtaining a fresh contract at the end of the term of the existing contract. In any event, in the circumstances in the present case, it is, at best for Mr Van Efferen, doubtful that the two implied terms add anything to CMA's contractual obligations having regard to the protective procedures incorporated expressly in clause 2.10 of the AWA. CMA was obliged to act in good faith in applying clause 2.10: cf Tasmania Development and Resources v Martin [1999] FCA 593 ; (2000) 97 IR 66 at 72. Had it done so no breach would have occurred.
Case: Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd [1968] HCA 8 ; (1968) 118 CLR 429
Outcome: cited
as to the construction of industrial instruments may also be obtained by reference to principles which courts apply to the construction of commercial contracts. Commercial contracts should, as Kirby J held in Pan Foods Company Importers &amp; Distributors Pty Ltd v Australia and New Zealand Banking Group Ltd [2000] HCA 20 ; (2000) 170 ALR 579 at 584 "be construed practically, so as to give effect to their presumed commercial purposes and so as not to defeat the achievement of such purposes by an excessively narrow and artificially restricted construction." An interpretation which accords with business common sense will be preferred to one which does not: see Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd [1968] HCA 8 ; (1968) 118 CLR 429 at 437.
Case: Walker v Citigroup Global Markets Pty Ltd [2005] FCA 1678 ; (2005) 226 ALR 114
Outcome: referred to
Walker v Citigroup Global Markets Pty Ltd [2005] FCA 1678 ; (2005) 226 ALR 114 at 156-157 Kenny J held that, in Australia, a term of good faith "does not apply to employment contracts." On appeal the Full Court did not need to express a view on her Honour's finding: see Walker v Citigroup Global Markets Australia Pty Ltd [2006] FCAFC 101 ; (2006) 233 ALR 687 at 708 [86] .
Case: Walker v Citigroup Global Markets Australia Pty Ltd [2006] FCAFC 101 ; (2006) 233 ALR 687
Outcome: referred to
Walker v Citigroup Global Markets Australia Pty Ltd [2006] FCAFC 101 ; (2006) 233 ALR 687 it was held that damages could be assessed on a "loss of a chance" basis where a contract of employment had been repudiated before the applicant had commenced to perform duties under it. The Full Court considered that, on the evidence, had Mr Walker been permitted to commence work under the contract, it was to be expected that he would not have left his employment voluntarily or for cause within a five year period. Damages were assessed on this basis with a 25% discount applied to take account of the possibility that the contract might have been terminated during the five year period. In Walker v Citigroup Global Markets Pty Ltd [2005] FCA 1678 ; (2005) 226 ALR 114 at 156-157 Kenny J held that, in Australia, a term of good faith "does not apply to employment contracts." On appeal the Full Court did not need to express a view on her Honour's finding: see Walker v Citigroup Global Markets Australia Pty Ltd [2006] FCAFC 101 ; (2006) 233 ALR 687 at 708 [86] .
Case: Watts v Rake [1960] HCA 58 ; (1960) 108 CLR 158
Outcome: cited
Van Efferen gave evidence about his attempts to obtain alternative employment between October 2006 and April 2008. He had found it impossible to obtain maritime work but had been prepared to take whatever work he could get. He was able to obtain some short term employment. His evidence was not seriously challenged. I accept it. CMA has failed to discharge the onus which fell on it to prove that Mr Van Efferen failed to mitigate his loss: see: Watts v Rake [1960] HCA 58 ; (1960) 108 CLR 158. There is no reason, in my opinion, why Mr Van Efferen's damages should not be assessed on the normal contractual basis. He had a contract for a three year term which did not expire until mid-2009. He confines his claim to the period of the Dolphin Project. The amount Mr Van Efferen would have earned during the life of the project would have been $313,007.47 in salary plus $14,284 in superannuation. This is a total of $327,291.47. From this figure must be deducted the amount which Mr Van Efferen earned in alternative employment during the relevant period. That figure was $22,525.94. His loss was, therefore, $304,765.53.
Case: Jess v Scott (1986) 12 FCR 187
Outcome: referred to
The leading authority on the circumstances in which an extension of time may be granted under O 52 r 15 is Jess v Scott (1986) 12 FCR 187. In that case, the Court (Lockhart, Sheppard and Burchett JJ) said at 195: 'What is needed to justify an extension of time is indicated in r 15(2) by the words "for special reasons". It is that there be shown a special reason why the appeal should be permitted to proceed, though filed after the expiry of 21 days. In that context, the expression "special reasons" is intended to distinguish the case from the usual course according to which the time is 21 days. But it may be so distinguished (not necessarily will for the rule gives a discretion) wherever the Court sees a ground which does justify departure from the general rule in a particular case. Such a ground is a special reason because it takes the case out of the ordinary. We do not think the use of the expression "for special reasons" implies something narrower than this. ... It should not be overlooked that r 15(2) enables leave to be given "at any time"; the "special reasons" relevant to such a power cannot but describe an elastic test, suitable for application across a wide range of situations, from an oversight of a day to a neglect persisted in during a prolonged period. It would require something very persuasive indeed to justify a grant of leave after, for example, a year; equally, it may be said, something much less significant might justify leave where a party is a few days late. "Special reasons" must be understood in a sense capable of accommodating both types of situation. It is an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served.'
Case: Howard v Australian Electoral Commission [2000] FCA 1767
Outcome: referred to
Considerations relevant to the exercise of the power are discussed in Howard v Australian Electoral Commission [2000] FCA 1767 and Ariaee v Minister for Immigration and Multicultural Affairs [2001] FCA 1627.
Case: Ariaee v Minister for Immigration and Multicultural Affairs [2001] FCA 1627
Outcome: referred to
Considerations relevant to the exercise of the power are discussed in Howard v Australian Electoral Commission [2000] FCA 1767 and Ariaee v Minister for Immigration and Multicultural Affairs [2001] FCA 1627.
Case: Giretti v Commissioner of Taxation (1996) 70 FCR 151
Outcome: cited
In my opinion, the Magistrate did not err in the way in which he exercised his discretion. As I understand the submissions, the only way in which a cancellation of the appellant's student visa could be avoided is if the university's decision not to certify that the appellant's academic results were satisfactory was altered. The decision by the university to exclude her was taken some two to three years ago. It was not suggested that since the delegate's decision on 7 April 2004 the university had been approached to alter its decision, or that there are any proceedings on foot to achieve that result. In my opinion, there is no reason to interfere with the Magistrate's conclusion that, at a practical level, the inevitable result of a rehearing would be a cancellation of the appellant's student visa. In my opinion, Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 (" Aala ") and SAAP are authority for the proposition that relief may be refused if, irrespective of any question of procedural fairness or individual merits, the decision-maker was bound by the governing statute to refuse the application: Aala per Gaudron and Gummow JJ at 109 [58]; SAAP per McHugh J at 109 [58]. In this case it is not necessary to consider if futility is to be judged by asking what decision the Tribunal would have made even if it had complied with s 359A(1)(b) or by asking if a decision by the Tribunal in the future refusing the application is inevitable because there has been no relevant change of circumstances (see the discussion in Giretti v Commissioner of Taxation (1996) 70 FCR 151 per Lindgren J at 164-165 and Merkel J at 174-180).
Case: Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138
Outcome: considered
The Full Court considered the obligations in s 424A of the Act in Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138. In material respects, that section is in the same terms as s 359A. The Court held that the Tribunal had failed to comply with s 424A(1)(a) and s 424A(1)(b). The Court said (at [40]-[41]): As mentioned above, the obligation on the Tribunal was to 'ensure, as far as is reasonably practicable', that the respondent understood why the information set out in the s 424A letter was relevant to the review. No practical or other difficulty stood in the way of the Tribunal telling the respondent that the information which it had received about his letters of support caused it to disbelieve or doubt the content of those letters. Yet the s 424A letter did not explicitly tell the respondent that the relevance to the review of the information which it had received about his letters of support was that the information indicated that the content of the letters was false. The Tribunal's failure to state explicitly the relevance to the review of the information concerning the respondent's letters of support is of importance because of the opaque nature of the particulars of the information provided to the respondent by the s 424A letter; the use that the Tribunal could make of the information as particularised was not self-evident. 29 It is to be noted that the case involved a breach of both of the subparagraphs, whereas this case involves an alleged breach of subparagraph (b). It is also to be noted that the Court said that the use the Tribunal could make of the information as particularised was not self-evident. In my opinion, there may well be cases where the relevance of the information to the review is self-evident and no letter or explanation is required to satisfy the requirements of s 359A(1)(b). However, in this case I think that the Tribunal was required to do more than it did. The Tribunal should have advised the appellant that the non-certification by the university that her academic results were at least satisfactory would constitute a breach of a condition attached to her student visa. It may not have been necessary for the Tribunal to go on and say that in those circumstances cancellation of the visa was mandatory but, at the very least, the Tribunal should have advised the appellant that the information was relevant because it would constitute a breach of a condition attached to her visa.
Case: Refugee Review Tribunal, Re; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82
Outcome: applied
In my opinion, the Magistrate did not err in the way in which he exercised his discretion. As I understand the submissions, the only way in which a cancellation of the appellant's student visa could be avoided is if the university's decision not to certify that the appellant's academic results were satisfactory was altered. The decision by the university to exclude her was taken some two to three years ago. It was not suggested that since the delegate's decision on 7 April 2004 the university had been approached to alter its decision, or that there are any proceedings on foot to achieve that result. In my opinion, there is no reason to interfere with the Magistrate's conclusion that, at a practical level, the inevitable result of a rehearing would be a cancellation of the appellant's student visa. In my opinion, Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 (" Aala ") and SAAP are authority for the proposition that relief may be refused if, irrespective of any question of procedural fairness or individual merits, the decision-maker was bound by the governing statute to refuse the application: Aala per Gaudron and Gummow JJ at 109 [58]; SAAP per McHugh J at 109 [58]. In this case it is not necessary to consider if futility is to be judged by asking what decision the Tribunal would have made even if it had complied with s 359A(1)(b) or by asking if a decision by the Tribunal in the future refusing the application is inevitable because there has been no relevant change of circumstances (see the discussion in Giretti v Commissioner of Taxation (1996) 70 FCR 151 per Lindgren J at 164-165 and Merkel J at 174-180).
Case: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 79 ALJR 1009
Outcome: cited
The first respondent did not submit that a failure to comply with s 359A(1)(b) did not constitute a jurisdictional error ( SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 79 ALJR 1009 (" SAAP ")). In my opinion, the Magistrate erred in concluding that there had not been a breach of s 359A(1)(b). 31 The Magistrate held that, in any event, it would be futile to grant relief and, that in those circumstances, he exercised his discretion to decline to grant relief. The Magistrate said that the appellant had not sought to adduce any material to indicate that in any way "the academic performance could or should have been altered". No application was made to the university for special consideration nor any attempt made to alter the academic outcome. The appellant did not point to any material to suggest that these conclusions were wrong. Her submission was that as long as there was a theoretical possibility that relief would not be futile then the discretion should not be exercised to refuse relief. 32 In my opinion, the Magistrate did not err in the way in which he exercised his discretion. As I understand the submissions, the only way in which a cancellation of the appellant's student visa could be avoided is if the university's decision not to certify that the appellant's academic results were satisfactory was altered. The decision by the university to exclude her was taken some two to three years ago. It was not suggested that since the delegate's decision on 7 April 2004 the university had been approached to alter its decision, or that there are any proceedings on foot to achieve that result. In my opinion, there is no reason to interfere with the Magistrate's conclusion that, at a practical level, the inevitable result of a rehearing would be a cancellation of the appellant's student visa. In my opinion, Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 (" Aala ") and SAAP are authority for the proposition that relief may be refused if, irrespective of any question of procedural fairness or individual merits, the decision-maker was bound by the governing statute to refuse the application: Aala per Gaudron and Gummow JJ at 109 [58]; SAAP per McHugh J at 109 [58]. In this case it is not necessary to consider if futility is to be judged by asking what decision the Tribunal would have made even if it had complied with s 359A(1)(b) or by asking if a decision by the Tribunal in the future refusing the application is inevitable because there has been no relevant change of circumstances (see the discussion in Giretti v Commissioner of Taxation (1996) 70 FCR 151 per Lindgren J at 164-165 and Merkel J at 174-180).
Case: Australian Trade Commission v Disktravel [1999] FCA 1399 ; (1999) 91 FCR 374
Outcome: considered
In the context of operations in overseas territories, I note at this point that the CECK partnership was successful in obtaining an export market development grant ("development grant") under the Export Market Development Grants Act 1974 (Cth) in relation to its expenditure in promoting the Travel Vision system in overseas territories in the 1994 FY. The CECK partnership and other licensees made a claim for a similar grant in relation to the 1995 FY. The claim was rejected by the Australian Trade Commission ("the Commission") but upheld by the Administrative Appeals Tribunal. On appeal by the Commission to a single Judge of this Court, the decision of the Tribunal was upheld: Australian Trade Commission v Disktravel [1999] FCA 48. On a further appeal, the Full Court of this Court set aside the decision of the single Judge and the Tribunal: Australian Trade Commission v Disktravel [1999] FCA 1399 ; (1999) 91 FCR 374. I will discuss the issues in those proceedings and their significance to the applications before me in due course. 226 Before addressing each of the eight matters, it is appropriate for me to refer to the decision of the Full Court of this Court in Australian Trade Commission v Disktravel [1999] FCA 1399 ; (1999) 91 FCR 374. The issue in that case was whether the applicants, including the CECK partnership, were eligible for a grant under the Export Market Development Grants Act 1974 (Cth) in respect of the 1995 FY. The claim by the CECK partnership was in respect of expenditure incurred by way of marketing fees to Plutora in relation to the overseas territories in respect of which it held licences. Under the Export Market Development Grants Act 1974 (Cth) the relevant expenditure must be "eligible expenditure". That in turn involved a number of requirements, one of which was that the expenditure be "qualifying export development expenditure". Section 11Z(8) of the Export Market Development Grants Act 1974 (Cth) provided as follows: "Expenditure is qualifying export development expenditure of a person to whom this section applies if: (a) in the Commission's opinion, it is incurred primarily and principally for the purpose of: (i) creating or seeking opportunities for; or (ii) creating or increasing demand for; the disposal, by that person, to persons resident outside Australia for use and enjoyment outside Australia of: (iii) eligible industrial property rights owned by that person; or (iv) eligible know-how owned by that person." 227 The terms "eligible industrial property rights", "eligible know-how" and "know-how" were all defined in the Export Market Development Grants Act .
Case: Calder v Commissioner of Taxation (2005) 226 ALR 643
Outcome: cited
The eight matters identified in s 177D(b)(i)-(viii) inclusive are exhaustive of the matters to be considered in determining whether the relevant conclusion should be drawn: Peabody v Commissioner of Taxation (1993) 40 FCR 531 (" Peabody ") at 541 per Hill J (Ryan and Cooper JJ concurring); Calder v Commissioner of Taxation (2005) 226 ALR 643 (" Calder ") at 290 [91]. Whether the relevant conclusion should be drawn is to be determined objectively in the sense that the question is not as to the taxpayer's subjective intention and purpose: Commissioner of Taxation v Spotless Services Ltd [1996] HCA 34 ; (1996) 186 CLR 404 (" Spotless ") at 421-422, 424; Commissioner of Taxation v Hart [2004] HCA 26 ; (2004) 217 CLR 216 (" Hart ") at 223 [37], 243 [65] per Gummow and Hayne JJ; Peabody at 542; Calder at 291-292 [96]. A person may have more than one purpose and that is made clear by s 177A(5). One purpose may be a commercial purpose, but Part IVA will nevertheless apply if the other purpose was to obtain a tax benefit and that purpose was the dominant purpose: Spotless at 415-416; Hart at 227 [16] per Gleeson CJ and McHugh J; Sleight at 229-230 [67] and 238-239 [113] per Hill J (with whom Hely J agreed); Calder at 291 [92]. 224 The authorities also establish that, in any particular case, one of the eight matters may be decisive; in another case, it may only be after a careful weighing of all eight matters that the relevant conclusion can be drawn. Furthermore, even though some matters may be neutral and others may point towards a commercial purpose, the other matters may be such that a conclusion of a dominant purpose of obtaining a tax benefit should be drawn: Sleight at 229-230 [67]; Calder at 290 [91]. 253 An important feature related to the management fees is the method whereby obligations under the limited recourse loan agreements and the management agreements were met. In this respect, I am referring to the endorsing and later cancellation of the bills of exchange in the manner I have described. It was very similar to a "round robin" of cheques which, although effective as a matter of law ( Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55 ; (2004) 218 CLR 471 at 486-487 [46] - [47] ) is, as Hill J pointed out in Sleight (at 232 [77]), a feature of many tax avoidance schemes. The method by which the moneys to be paid under the limited recourse loan agreements were paid by the lender and then in turn paid to the manager was known to the members of the CECK partnership because they endorsed the bills of exchange. Even if it was unknown, as might have been the case with the applicants involved in the TVA Project because the bills of exchange were endorsed by Plutora as duly appointed agent and attorney of Civil and Earth, the method of payment is still a matter to be taken into account. Commissioner of Taxation v Consolidated Press Holdings Ltd [2001] HCA 32 ; (2001) 207 CLR 235 at 264 [95] ; Commissioner of Taxation v Cooke (2004) 55 ATR 183 at 216 [88]; Calder v Commissioner of Taxation (2005) 226 ALR 643 at 294-295 [113]-]115].
Case: Commissioner of Taxation v Consolidated Press Holdings Ltd [2001] HCA 32 ; (2001) 207 CLR 235
Outcome: cited
An important feature related to the management fees is the method whereby obligations under the limited recourse loan agreements and the management agreements were met. In this respect, I am referring to the endorsing and later cancellation of the bills of exchange in the manner I have described. It was very similar to a "round robin" of cheques which, although effective as a matter of law ( Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55 ; (2004) 218 CLR 471 at 486-487 [46] - [47] ) is, as Hill J pointed out in Sleight (at 232 [77]), a feature of many tax avoidance schemes. The method by which the moneys to be paid under the limited recourse loan agreements were paid by the lender and then in turn paid to the manager was known to the members of the CECK partnership because they endorsed the bills of exchange. Even if it was unknown, as might have been the case with the applicants involved in the TVA Project because the bills of exchange were endorsed by Plutora as duly appointed agent and attorney of Civil and Earth, the method of payment is still a matter to be taken into account. Commissioner of Taxation v Consolidated Press Holdings Ltd [2001] HCA 32 ; (2001) 207 CLR 235 at 264 [95] ; Commissioner of Taxation v Cooke (2004) 55 ATR 183 at 216 [88]; Calder v Commissioner of Taxation (2005) 226 ALR 643 at 294-295 [113]-]115].