mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51
Outcome: discussed
appellant also referred to the decision of the Full Court in NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51. There, Madgwick J, with whom Conti J agreed, had noted that the court could reasonably attribute to the delegate, whose decision was then under challenge, knowledge of the notorious background facts about China, that it was an authoritarian, indeed a politically, though not now economically, totalitarian State (see 147 FCR at 94 [220]). He said that while the delegate in that case had accepted, apparently, that active proponents or leaders of Falun Gong as opposed to ordinary practitioners would be more likely to come to the attention of the authorities, in the circumstances of that case the appellant's claims as to events in Australia indicated that she in fact had been an active proponent of Falun Gong. In those circumstance the delegate's express lack of satisfaction that she had been identified by Chinese authorities could hardly have betokened any confident and complete rejection of that proposition. This led to a finding that the decision maker in that case had misunderstood the task which he was required to undertake (see 147 FCR 94-95 [221]-[222]). I do not think that the facts of that case are sufficiently analogous or in point on the present facts to lead to a conclusion in support of the first ground. For these reasons, I therefore reject the first ground. Turning to the second ground, it was said that the provisions of s 424A(1) were engaged so as to require the Tribunal to give the appellant notice in writing that it intended to use as the reason, or part of the reason, for affirming the decision under review parts of its reasoning or fact finding as to how the appellant may or may not practice Falun Gong and the Tribunal's lack of satisfaction about that were she to return to China. Further, and alternatively, it was argued that the Tribunal should have given her notice that it would use the fact or reasoning that she had offered very little support for those claims even in the form of evidence which she herself could give.
Case: NBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1045
Outcome: followed
am fortified in this construction of s 426A by a decision of Greenwood J in NBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1045 , especially at [24]. The matter may also be tested by considering whether, if the Tribunal had decided to make attempts to contact the appellant on her failure to attend on 21 March 2001, the Minister could have attacked that conduct on the ground that a jurisdictional error occurred. In my opinion it could not. It was plain that the Tribunal had a discretion one way or the other to decide whether or not to take further action. I do not think that it could be inferred or implied that the requirements of procedural fairness necessitated the Tribunal, in arriving at a decision under s 426A(1) to consider contacting the appellant, and, if it failed to do so, the whole of the exercise of its jurisdiction would be thrown into doubt. The very terms of the section seem to me to negate such an approach. I do not see any error in the way in which the Chief Federal Magistrate approached this issue. For these reasons I reject this ground.
Case: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214
Outcome: discussed
or not something is information of the kind which is within the definition in section 424A has been the subject of considerable debate in the authorities. Relevantly, the Full Court has held in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 at 259 [205] per Allsop J; Weinberg J agreeing at 150 FCR at 252 [155] and see too at 259-260 [200]-[210] that: 'Information is that of which one is told or apprised; it is knowledge communicated concerning some particular fact, subject or event.' Allsop J went on to say: 'Information does not encompass the Tribunal's subjective appraisals, thought processes or determinations.' There he acknowledged the distinction between those matters and information could be fine, but obviously it is critical. And he identified that the word 'information' has been said not to encompass or extend to identified gaps, defects or lack of detail of specificity in evidence or conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps. However, that process was somewhat limited by a proper construction of the legislation (see 150 FCR 259-260 [206]-[207]). The way in which the Tribunal expressed its reasons, subject to one qualification to which I will come, appears to me to display an evaluative process of the claims and the lack of material put before the Tribunal in support of those claims. The Tribunal expressed itself as not being satisfied about a number of matters. It did make a positive finding based on the country information, as it was entitled to do under s 424A(3)(a), that there was differential attention by the Chinese authorities to practitioners of Falun Gong and that various factors could influence whether or not someone was persecuted and how they were persecuted.
Case: The Queen v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10 ; (1969) 122 CLR 546
Outcome: applied
The Queen v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10 ; (1969) 122 CLR 546 at 552-553 the High Court held that: '...when it is necessary to consider a question of fairness in relation to a tribunal the whole of the circumstances in the field of the inquiry are of importance. The nature of the jurisdiction exercised and the statutory provisions governing its exercise are amongst those circumstances.'
Case: Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436
Outcome: referred to
was also made to the canon of statutory construction that terms used in statutes that are in pari materia should be given the same meaning unless there is a clear indication to the contrary: Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436 at 461 per Viscount Simonds; The Wik Peoples v The State of Queensland (1996) 187 CLR 1 at 171 per Gummow J.
Case: Bristol-Myers Co Pty Ltd v Federal Commissioner of Taxation (1990) 23 FCR 126
Outcome: referred to
9-30(1)(a) of the GST Act provides , inter alia , that a supply is GST-free if it is GST-free under Div 38. Section 38-2 provides that a supply of food is GST-free. Section 38-4(1)(c) provides that beverages for human consumption are food. There is a definition of the term 'beverage' in s 38-4(2) saying that it 'includes water'. A more helpful description of the word is to be found in Bristol-Myers Co Pty Ltd v Federal Commissioner of Taxation (1990) 23 FCR 126 where Lockhart J described a beverage as 'a drink of any kind' and 'any liquid which is swallowed to quench thirst or for nourishment' and said that 'a beverage is consumed either hot or cold and is normally taken to quench the person's thirst or for stimulation or as an accompaniment to solid foods either at meal times or between meals'. It is common ground between the parties that the Edenvale products are beverages for the purposes of the GST Act. Nonetheless, an exemption is only available if the Edenvale products are beverages of a kind specified in the third column of the Table in cl 1 of Sch 2 to the GST Act. It is again common ground that Edenvale Chardonnay, Edenvale Shiraz and Edenvale Rose need to fall within Item 12 of the Table and that Edenvale Sparkling Cuvee needs to fall within Item 11 of the Table, an excerpt from which follows: Beverages that are GST-free *Beverages specified in the third column of the table are GST-free. Beverages that are GST-free Item Category Beverages 10 Fruit and vegetable juices concentrates for making non-alcoholic *beverages, if the concentrates consist of at least 90% by volume of juices of fruits 11 non-alcoholic carbonated *beverages, if they consist wholly of juices of fruits or vegetables 12 non-alcoholic non-carbonated *beverages, if they consist of at least 90% by volume of juices of fruits or vegetables By s 182-15 of the GST Act, the second column cannot be taken into account in interpreting an item unless it is for the purpose, inter alia , of determining the meaning of an item which is ambiguous or obscure or, if the ordinary meaning conveyed by its text, taking into account its context in the GST Act and the purpose or object underlying the item, leads to a result that is manifestly absurd or is unreasonable: see subs 182-10(2).
Case: CIC Insurances Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Outcome: referred to
is the same with the GST Act. As Hill J (with whom Stone and Allsop JJ agreed) said in H P Mercantile Pty Ltd v Commissioner of Taxation [2005] FCAFC 126 ; (2005) 143 FCR 553 at [44] : It is clear, both having regard to the modern principles of interpretation as enunciated by the High Court in cases such as CIC Insurance Limited v Bankstown Football Club Ltd (1997) 187 CLR 384 and s 15AA of the Acts Interpretation Act 1901 (Cth) that the Court will prefer an interpretation of a statute which would give effect to the legislative purpose, as opposed to one that would not. This requires the Court to identify that purpose, both by reference to the language of the statute itself and also any extrinsic material which the Court is authorised to take into account. He submitted that in such circumstances a construction of the legislation that promotes the purpose of the GST Act is to be preferred to one which would not promote the purpose; see s 15AA of the Acts Interpretation Act 1901 (Cth); CIC Insurances Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384. He submitted that confining non-alcoholic beverages to those beverages which do not acquire their alcohol content through human intervention (i.e., by using yeast to cause or accelerate fermentation), and contain an amount of alcohol by volume which is considered insignificant, best promotes the legislative purpose of the GST Act in respect of food namely, that GST-free status is confined to 'basic' food. As the alcoholic content of the applicant's Edenvale products arises through human intervention those products are not, according to the Commissioner, non-alcoholic even though the level of that content may be low after the de-alcoholisation process has taken place. By reference to the same principle of construction, the applicant contended that a non-alcoholic beverage meant a beverage other than an alcoholic beverage; this gives meaning and operation to Items 11 and 12 and is therefore to be preferred.
Case: Commissioner of Taxation v Bargwanna [2009] FCA 620
Outcome: considered
in Commissioner of Taxation v Bargwanna [2009] FCA 620 (12 June, 2009), in the course of considering whether a fund was applied for the purposes for which it was established within s 50-60 of the Income Tax Assessment Act 1997 (Cth), I said (at [28]): It can be accepted that where Parliament has enacted legislation to encourage a particular activity, for example, legislation which gives particular concessions to the mining or petroleum industries, the legislation must be construed so as to promote Parliament's purpose and not so as to detract from that purpose: Totalizator Agency Board v Commissioner of Taxation (1996) 69 FCR 311 at 323A per Hill J, with whom Tamberlin J and Sundberg J agreed. Thus an exemption which exists for the purpose of encouraging, rewarding or protecting some class of activity is to be given a liberal rather than a narrow construction and application: see Commissioner of Taxation v Reynolds Australia Alumina Ltd (1987) 18 FCR 29 at 35 per Beaumont J and at 46 47 per Burchett J; Diethelm Manufacturing Pty Ltd v Commissioner of Taxation [1993] FCA 437 ; (1993) 44 FCR 450 at 457 per French J. But in the case of a provision which confers an exemption upon a particular kind of body or fund which meets certain requirements, Parliament's purpose is not promoted by construing the provision in a manner favourable to the body or fund referred to in it: see TAB at 323C per Hill J. Indeed, there is much to be said for the view that the privileged status of exemption from income tax on the income of a fund which aspires to that status demands strict adherence to the requirements that must be met before that status is conferred ...
Case: H P Mercantile Pty Ltd v Commissioner of Taxation [2005] FCAFC 126 ; (2005) 143 FCR 553
Outcome: considered
is the same with the GST Act. As Hill J (with whom Stone and Allsop JJ agreed) said in H P Mercantile Pty Ltd v Commissioner of Taxation [2005] FCAFC 126 ; (2005) 143 FCR 553 at [44] : It is clear, both having regard to the modern principles of interpretation as enunciated by the High Court in cases such as CIC Insurance Limited v Bankstown Football Club Ltd (1997) 187 CLR 384 and s 15AA of the Acts Interpretation Act 1901 (Cth) that the Court will prefer an interpretation of a statute which would give effect to the legislative purpose, as opposed to one that would not. This requires the Court to identify that purpose, both by reference to the language of the statute itself and also any extrinsic material which the Court is authorised to take into account.
Case: Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14 ; (2004) 218 CLR 273
Outcome: considered
Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14 ; (2004) 218 CLR 273 at [11] the High Court affirmed the observations made by McHugh J in Newcastle City Council v GIO General Ltd [1997] HCA 53 ; (1997) 191 CLR 85 at 42 that: [A] court is permitted to have regard to the words used by the legislature in their legal and historical context and, in appropriate cases, to give them a meaning that will give effect to any purpose of the legislation that can be deduced from that context.
Case: Newcastle City Council v GIO General Ltd [1997] HCA 53 ; (1997) 191 CLR 85
Outcome: considered
Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14 ; (2004) 218 CLR 273 at [11] the High Court affirmed the observations made by McHugh J in Newcastle City Council v GIO General Ltd [1997] HCA 53 ; (1997) 191 CLR 85 at 42 that: [A] court is permitted to have regard to the words used by the legislature in their legal and historical context and, in appropriate cases, to give them a meaning that will give effect to any purpose of the legislation that can be deduced from that context.
Case: The Wik Peoples v The State of Queensland (1996) 187 CLR 1
Outcome: referred to
was also made to the canon of statutory construction that terms used in statutes that are in pari materia should be given the same meaning unless there is a clear indication to the contrary: Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436 at 461 per Viscount Simonds; The Wik Peoples v The State of Queensland (1996) 187 CLR 1 at 171 per Gummow J.
Case: WAJR v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs (2004) 204 ALR 624
Outcome: cited
The notice of appeal raises two grounds not in issue before the Federal Magistrate. In WAJR v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs (2004) 204 ALR 624, new appeal grounds were substituted at the last minute when the appellant had been assigned pro bono counsel. French J noted at [18]: It is ordinarily regarded as exceptional to allow a point to be raised on appeal that was not raised at first instance University of Wollongong v Metwally (No 2) [1985] HCA 28 ; (1985) 60 ALR 68; 59 ALJR 481; Crampton v R [2000] HCA 60 ; (2000) 206 CLR 161; 176 ALR 369. But as Branson and Katz JJ said in H v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 43 at [3]: "This does not mean that an issue can never be argued on appeal that was not argued at the hearing at first instance." 17 His Honour continued at [19]: To allow too readily the running of new points, or indeed a whole new case, on appeal is to undermine the appellate process by rendering the trial process almost irrelevant. 18 There appear to be no "exceptional" circumstances in this case. The appellant sought to impugn the Tribunal's decision under s 425(1) of the Act before the Federal Magistrate. That point has now been abandoned in favour of two quite different grounds. To allow the appellant to agitate those grounds would be to render the process before the Federal Magistrate irrelevant and indeed contrary to the policy in the Act, as this Court would be made the Court of first instance. The appellant, who was unrepresented on appeal, could not explain why the present course had been adopted and why the matters sought to be agitated could not have been raised before the Federal Magistrate. For those reasons, in my opinion, it would have been inappropriate to have allowed the appellant to argue those matters on this appeal. However, there is a more compelling reason for reaching that conclusion. Both new grounds would fail for the simple reason that the Tribunal did not rely on any country information. The grounds of appeal are therefore irrelevant to the Tribunal's decision. 19 The appeal must be dismissed and the appellant must pay the first respondent's costs. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander J. Associate: Dated: 21 August 2007 Counsel for the Appellant: The Appellant appeared in person Counsel for the Respondent: N Johnson Solicitor for the Respondent: Sparke Helmore Date of Hearing: 20 August 2007 Date of Judgment: 20 August 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1295.html
Case: Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory of Australia (2004) 207 ALR 539
Outcome: followed
It is tolerably clear that s 59 determines rights and obligations in the Northern Territory under Northern Territory law (whether the common law or statute) between a licensee under the Act who has constructed or operates a pipeline and the owners or lessees of property through which the pipeline passes. The provision is intended to ensure that the balance of rights and obligations would not be determined on the basis that the pipeline was a fixture. However, the relevant legal question, for present purposes, is whether the pipelines were "fixture(s)" as that expression appears in s 253 of the NTA. The character of the pipelines, for that purpose, cannot be determined by Northern Territory legislation. Indeed, I am bound to follow the conclusion of Mansfield J in Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory of Australia (2004) 207 ALR 539 (at [307]) that the word "fixture" in the definition means a fixture as understood at common law, unless I thought his Honour was plainly wrong, which I do not.
Case: Australian Provincial Assurance Co Ltd v Coroneo (1938) 38 SR (NSW) 700
Outcome: referred to
At common law, as Mansfield J noted, a fixture requires a degree of annexation to the land, and an intention that it be permanent: see generally Australian Provincial Assurance Co Ltd v Coroneo (1938) 38 SR (NSW) 700 at 712-713. The applicants appeared to make a submission that the pipelines were not fixtures, apart from s 59 of the Energy Pipelines Act, having regard to the observations of the majority of the High Court in Commissioner of Main Roads v North Shore Gas Co Ltd [1967] HCA 41 ; (1967) 120 CLR 118 at 127. For my part, I do not view those observations as warranting the conclusion that the pipelines in the present case were not fixtures at common law. Their Honours said that the presumption that whatever is fixed to freehold land is said to become part of it is rebuttable and, in effect, could be rebutted where a statute had empowered someone other than the owner of land to affix to or embed things in the soil and yet retain ownership of those things. Their Honours were addressing what the legal consequences might be of something being a fixture in a particular context, not what was a fixture. In the present case there is little room to doubt that the pipelines are fixtures. They were embedded in the soil and, for all practical purposes, were to remain there permanently. I conclude that they are fixtures. It is unnecessary to determine whether they are also major earthworks.
Case: Brock v United States of America [2007] FCAFC 3 ; (2007) 157 FCR 121
Outcome: referred to
In the draft determination appended to the Full Court's reasons for decision (a draft proposed by the State of South Australia), the formulation concerning adjacent areas as "the exclusive use of which is necessary for the enjoyment...". This is the formulation in the determination ultimately made by the Full Court. In this matter, as mentioned earlier, the Pastoralists advocated the adoption of the formulation in the reasons. The applicants advocated the adoption of the formulation in the determination. For my part, I doubt that there is a material difference between the formulation in the reasons and the formulation in the determination (except, perhaps, whether one speaks of "use" or "exclusive use" (in the determination)). If something is reasonably necessary, it is necessary. I apprehend that the word "necessary", like the word "unique", gains little by qualification. If anything, the qualifying word "reasonably" might be viewed as a word of limitation (potentially to the Pastoralists' detriment): see Brock v United States of America [2007] FCAFC 3 ; (2007) 157 FCR 121 (at [107]-[109]). Similarly, if adjacent land is required because its use is incidental to the operation or enjoyment of the improvement, then it can reasonably be said that its use is necessary for the operation or enjoyment of the improvement. In any event, the formulation in the reasons of the Full Court had its origins in the reasons of the majority of the High Court in Ward HC (at [308]) in which only the word "necessary" is used, albeit to ancillary rights for the meaningful exercise of a granted right and not the use of areas of land. 165 While the test propounded by the Full Court in its reasons in De Rose (No 2) did not speak of "exclusive use", the determination did. It can be assumed that the determination of the Full Court truly reflects the Court's intentions. Accordingly, it is appropriate to adopt the formulation used in the determination in De Rose (No 2) . 166 I turn to consider whether, and to what extent, the determination should specify the area of adjoining land on which native title rights have been extinguished at least in relation to improvements about which there was some evidence. In their written submissions, the Pastoralists proposed a buffer zone of 2 kilometres around the homestead areas, a buffer zone of 1 kilometre around buildings used for the purpose of accommodating the "stock camp" on Newcastle Waters station, 500 metres for airstrips, 1 kilometre for constructed watering points, 2 kilometres for stockyards and 1 kilometre from trap yards. Other than in the case of the buffer zone around the homestead complex these distances were identified in the evidence of Mr Warriner in relation to the improvements on Newcastle Waters station.