mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: SZILQ v Minister for Immigration and Citizenship (2007) 163 FCR 304
Outcome: cited
(ii) An invalid Tribunal decision in purported performance of a particular review is to be treated for all purposes as having no operative effect and it does not represent a performance by the Tribunal of its duty in connection with that review: SZILQ v Minister for Immigration and Citizenship (2007) 163 FCR 304 at [10]. 25 (v) As it is the Tribunal which continues to conduct the particular review consequent upon a remitter, the steps taken by the Tribunal to discharge its statutory obligations under s 424A and s 425 in the conduct of that review prior to the making of an invalid decision may, but need not necessarily, be a sufficient discharge of those statutory obligations for the purpose of making a subsequent and valid decision on the review: SZEPZ (on s 424A); SZILQ (on s 425); and also NBKM v Minister for Immigration and Citizenship [2007] FCA 1413. Thus, a s 424A notice or a s 425 invitation given prior to the Tribunal's invalid decision may, or may not, suffice without a further notice or invitation depending upon whether on the remitter the circumstances then are such that s 424A or s 425 does or does not require, according to their respective terms, a fresh notice or invitation.
Case: Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11 ; (2003) 215 CLR 518
Outcome: cited
(iii) When a decision on a particular review is set aside, it is a decision of the Tribunal, not of the person constituting it, that is set aside: Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11 ; (2003) 215 CLR 518 at [31] . Correspondingly, a redetermination of the particular review is a redetermination by the Tribunal, not by the particular member who happens to constitute the Tribunal for the purpose: SZEPZ at [38].
Case: SZHLM v Minister for Immigration and Citizenship [2007] FCA 1100 ; (2007) 98 ALD 567
Outcome: cited
(iv) As was said by the Full Court in SZEPZ at [39]: An invalid decision by the Tribunal is no decision at all but it does not follow that all steps and procedures taken in arriving at that invalid decision are themselves invalid. The Tribunal still has before it the materials that were obtained when the decision that had been set aside was made. To the extent that Cowdroy J is properly to be taken as suggesting to the contrary in SZHLM v Minister for Immigration and Citizenship [2007] FCA 1100 ; (2007) 98 ALD 567 at [34] , his Honour's view ought not be followed in my view.
Case: NBKM v Minister for Immigration and Citizenship [2007] FCA 1413
Outcome: cited
(v) As it is the Tribunal which continues to conduct the particular review consequent upon a remitter, the steps taken by the Tribunal to discharge its statutory obligations under s 424A and s 425 in the conduct of that review prior to the making of an invalid decision may, but need not necessarily, be a sufficient discharge of those statutory obligations for the purpose of making a subsequent and valid decision on the review: SZEPZ (on s 424A); SZILQ (on s 425); and also NBKM v Minister for Immigration and Citizenship [2007] FCA 1413. Thus, a s 424A notice or a s 425 invitation given prior to the Tribunal's invalid decision may, or may not, suffice without a further notice or invitation depending upon whether on the remitter the circumstances then are such that s 424A or s 425 does or does not require, according to their respective terms, a fresh notice or invitation.
Case: Re Refugee Review Tribunal; Ex parte Aala [2000] FCA 57 ; (2000) 204 CLR 82
Outcome: applied
It is now well accepted that, where an application for an administrative decision such as here is one which the decision-maker was bound by the governing statute to refuse, irrespective of any question of procedural fairness, then relief may be refused on the ground of utility: see Re Refugee Review Tribunal; Ex parte Aala [2000] FCA 57 ; (2000) 204 CLR 82 at [57] - [58] ; SZBYR v Minister for Immigration and Citizenship [2007] FCA 26 ; (2007) 235 ALR 609 at [29] . But for such to occur, it must be quite clear that a rehearing or reconsideration would be futile: Lee v Minister for Immigration and Citizenship (2007) 159 FCR 181 at [48].
Case: SZBYR v Minister for Immigration and Citizenship [2007] FCA 26 ; (2007) 235 ALR 609
Outcome: applied
It is now well accepted that, where an application for an administrative decision such as here is one which the decision-maker was bound by the governing statute to refuse, irrespective of any question of procedural fairness, then relief may be refused on the ground of utility: see Re Refugee Review Tribunal; Ex parte Aala [2000] FCA 57 ; (2000) 204 CLR 82 at [57] - [58] ; SZBYR v Minister for Immigration and Citizenship [2007] FCA 26 ; (2007) 235 ALR 609 at [29] . But for such to occur, it must be quite clear that a rehearing or reconsideration would be futile: Lee v Minister for Immigration and Citizenship (2007) 159 FCR 181 at [48]. 37 Though the appellant has not addressed, and has not been asked to address, the application of s 91S to his claim, he so founded and formulated it that the section applied inevitably and inexorably as to ordain that that claim "lacked the requisite Convention nexus": SZBYR at [29]. I am, in consequence, satisfied the Federal Magistrate did not err in dismissing the application for judicial review. 38 I will order that the appeal be dismissed with costs. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate: Dated: 21 May 2008 Counsel for the Appellant: Mr S Ower Solicitor for the Appellant: McDonald Steed McGrath Counsel for the Respondents: Dr C Bleby Solicitor for the Respondents: Australian Government Solicitor Date of Hearing: 8 May 2008 Date of Judgment: 21 May 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/712.html
Case: Lee v Minister for Immigration and Citizenship (2007) 159 FCR 181
Outcome: cited
It is now well accepted that, where an application for an administrative decision such as here is one which the decision-maker was bound by the governing statute to refuse, irrespective of any question of procedural fairness, then relief may be refused on the ground of utility: see Re Refugee Review Tribunal; Ex parte Aala [2000] FCA 57 ; (2000) 204 CLR 82 at [57] - [58] ; SZBYR v Minister for Immigration and Citizenship [2007] FCA 26 ; (2007) 235 ALR 609 at [29] . But for such to occur, it must be quite clear that a rehearing or reconsideration would be futile: Lee v Minister for Immigration and Citizenship (2007) 159 FCR 181 at [48].
Case: Archibald Howie Pty Ltd v Commissioner of Stamp Duties (NSW) [1948] HCA 28 ; (1948) 77 CLR 143
Outcome: cited
The Commissioner relies on the following special characteristics of dividends: (a) that the division of a company's profits among its shareholders by the declaration of a dividend is "an effectuation or realisation of the rights obtained by the acquisition of the share" (citing Chief Commissioner of State Revenue (NSW) v Dick Smith Electronics Holdings Pty Ltd [2005] HCA 3 ; (2005) 221 CLR 496 per Gleeson CJ and Callinan J at [25] [26], quoting from the judgment of Dixon J in Archibald Howie Pty Ltd v Commissioner of Stamp Duties (NSW) [1948] HCA 28 ; (1948) 77 CLR 143 at 153); (b) that in the winding up of a company, debts owed by the company to its members in their capacity as members, including debts arising from the declaration of a dividend, are postponed until all debts owed to, or claims made by, persons other than as members of the company have been satisfied: Corporations Act 2001 (Cth) s 563A (in 1996 the comparable provision was s 563A of the Corporations Law , which was in identical terms); (c) on an assignment of a debt created by the declaration of a dividend, the debt remains subject to the "equity" of the ordinary creditors proving in priority (the Commissioner cites Re Harry Simpson &amp; Company Pty Ltd and Companies Act 1936 [1964-5] NSWR 603 ( Simpson )).
Case: Bluebottle UK Ltd v Deputy Commissioner of Taxation [2006] NSWSC 706 ; (2006) 233 ALR 747
Outcome: cited
The dividend was declared before ss 254U and 254V were introduced into the predecessor to the Corporations Act 2001 (Cth), the Corporations Law , by the Company Law Review Act 1998 (Cth) (No 61 of 1998) with effect on and from 1 July 1998. Therefore I need not discuss the purpose and effect of those provisions. See the discussion of them in Bluebottle UK Ltd v Deputy Commissioner of Taxation [2006] NSWSC 706 ; (2006) 233 ALR 747 at [14] [45] and, on appeal, Deputy Commissioner of Taxation v Bluebottle UK Ltd [2006] ATC 4803 at [35] [53] per Santow JA, [105] [112] per Basten JA. (Special leave to appeal to the High Court was granted on 25 May 2007.)
Case: Broken Hill Pty Co Ltd v Federal Commissioner of Taxation (1999) 99 ATC 5193
Outcome: discussed
The Commissioner submits that for the purposes of identifying the appropriate basis of accounting, the authorities show or suggest that a holding company is classified as a trading company. He cites Carapark Holdings Ltd v Commissioner of Taxation [1967] HCA 5 ; (1966) 115 CLR 653 ( Carapark ) at 663 664; Esquire Nominees Limited v Federal Commissioner of Taxation [1972] HCA 32 ; (1973) 129 CLR 177 ( Esquire Nominees ) at 212 per Barwick CJ, 221 per Menzies J; Brookton Co-operative Society Limited v Commissioner of Taxation [1981] HCA 28 ; (1981) 147 CLR 441 ( Brookton ) at 469 per Aickin J; and Broken Hill Pty Co Ltd v Federal Commissioner of Taxation (1999) 99 ATC 5193 ( BHP v FCT ) at [48] per Kenny J.
Case: Carapark Holdings Ltd v Commissioner of Taxation [1967] HCA 5 ; (1966) 115 CLR 653
Outcome: distinguished
The Commissioner submits that for the purposes of identifying the appropriate basis of accounting, the authorities show or suggest that a holding company is classified as a trading company. He cites Carapark Holdings Ltd v Commissioner of Taxation [1967] HCA 5 ; (1966) 115 CLR 653 ( Carapark ) at 663 664; Esquire Nominees Limited v Federal Commissioner of Taxation [1972] HCA 32 ; (1973) 129 CLR 177 ( Esquire Nominees ) at 212 per Barwick CJ, 221 per Menzies J; Brookton Co-operative Society Limited v Commissioner of Taxation [1981] HCA 28 ; (1981) 147 CLR 441 ( Brookton ) at 469 per Aickin J; and Broken Hill Pty Co Ltd v Federal Commissioner of Taxation (1999) 99 ATC 5193 ( BHP v FCT ) at [48] per Kenny J. 131 In Carapark [1967] HCA 5 ; 115 CLR 653, the taxpayer was a holding company which had a contract of insurance providing for payment to it of a lump sum in the event of death by air accident of its employee or the employee of an associated or subsidiary company. An employee of a subsidiary was killed when an aeroplane in which he was travelling in the course of his employment crashed. The proceeds of the policy were paid to the taxpayer company. The Commissioner contended that the amount was received as "income" in the ordinary sense of the word. It will be noted that there was no question that the amount was received, the issue being as to its proper characterisation. 132 The High Court held that the amount was in the nature of income because it was intended to provide against loss of dividend income the taxpayer might suffer in consequence of the death or disablement of employees of its subsidiaries. In their joint judgment, Kitto, Taylor and Owen JJ said (at 663 664) that the insurance monies must be considered as having been gained in the course of the parent company's business, using "business" in "the broad sense which makes it relevant to the tax problem, that is to say as meaning the continuous course of conduct which the appellant was following for the derivation of income". 133 It is common ground that the dividend of $49 million was "income" and I accept that ABB Zurich was carrying on business. I do not see, however, how these circumstances or the decision in Carapark determine the criterion by virtue of which, and therefore the time at which, ABB Zurich derives income consisting of dividends declared by its subsidiaries. Neither Carapark nor any other authority of which I am aware equates any form of "carrying on of business" at all with the trading or manufacturing activity that has been referred to as exceptional in the cases.
Case: Charter Reinsurance Co Ltd v Fagan [1997] AC 313
Outcome: cited
In Charter Reinsurance Co Ltd v Fagan [1997] AC 313 Lord Mustill described the word "paid" as a "slippery" word (at 384). In the present case, it is not in dispute that the debtor, ABB Australia, paid the amount of its indebtedness on 21 June 1996: the question is whether the payment it then made to BAL was also payment to ABB Zurich. 164 Essential to the notion of payment is the agreement of a creditor to accept something as payment. If a creditor directs the debtor to pay to a third party to whom the creditor has an obligation and the debtor does so, the payment to the third party is payment to the creditor because the creditor has consented to treat it as such. Take the ordinary case of the application of s 44(1) of the Act to the declaration of a final dividend payable immediately. Could it be seriously suggested that it was not paid to the shareholder because it was paid to a third party at the direction of the shareholder? It would have been paid to the shareholder even absent the inclusory definition of "paid" in s 6(1). 165 Even a payment into a creditor's bank account is a payment to a third party, namely, the bank. The payment is made on the basis that the amount will be credited to the creditor's account with the bank, and we have no difficulty in saying that the debtor has "paid" the creditor.
Case: Chief Commissioner of State Revenue (NSW) v Dick Smith Electronics Holdings Pty Ltd [2005] HCA 3 ; (2005) 221 CLR 496
Outcome: discussed
The Commissioner relies on the following special characteristics of dividends: (a) that the division of a company's profits among its shareholders by the declaration of a dividend is "an effectuation or realisation of the rights obtained by the acquisition of the share" (citing Chief Commissioner of State Revenue (NSW) v Dick Smith Electronics Holdings Pty Ltd [2005] HCA 3 ; (2005) 221 CLR 496 per Gleeson CJ and Callinan J at [25] [26], quoting from the judgment of Dixon J in Archibald Howie Pty Ltd v Commissioner of Stamp Duties (NSW) [1948] HCA 28 ; (1948) 77 CLR 143 at 153); (b) that in the winding up of a company, debts owed by the company to its members in their capacity as members, including debts arising from the declaration of a dividend, are postponed until all debts owed to, or claims made by, persons other than as members of the company have been satisfied: Corporations Act 2001 (Cth) s 563A (in 1996 the comparable provision was s 563A of the Corporations Law , which was in identical terms); (c) on an assignment of a debt created by the declaration of a dividend, the debt remains subject to the "equity" of the ordinary creditors proving in priority (the Commissioner cites Re Harry Simpson &amp; Company Pty Ltd and Companies Act 1936 [1964-5] NSWR 603 ( Simpson )).
Case: Commissioner of Taxation v Citibank Ltd (1993) 44 FCR 434
Outcome: discussed
In Commissioner of Taxation v Citibank Ltd (1993) 44 FCR 434, Hill J, with whom Jenkinson and Einfeld JJ agreed, cautioned against a too ready reliance on business and accounting practice relating to preparation of the company's profit and loss account required in accordance with s 269(1) of the Companies (New South Wales) Code (at 443 446). His Honour stated (at 445 446): With respect to his Honour, who presumably must be taken as having decided otherwise, I do not think that the accounting evidence in the present case establishes that the amount derived each year by applying the financial or actuarial method represents income in ordinary concepts. What that evidence establishes is that the outcome of the finance or actuarial method is an appropriate figure to be used in the preparation of the profit and loss account of the respondent for the year in accordance with the Companies (New South Wales) Code : s 269(1). If the relevant issue were the determination of the profit of the respondents, or whether that profit was to be seen as on revenue account, the evidence would clearly be most cogent. But it must be remembered that the role of the accounting standards is in the determination of profit so as to ensure that financial statements, required to be prepared by statute, give a true and fair view and not the determination of "income", notwithstanding that those two concepts may, as will be seen, sometimes overlap. Thus Professor Walker [an expert witness] states that he has been asked to advise as to the correct method of accounting in relation to the leases in question. But his affidavit and subsequent explanation makes it clear that he has answered that question by reference to the companies law for the purposes of which the relevant standards have been prepared and with which of course each of the respondents was obliged to comply. Mr Westworth's affidavit [regarding accounting practices] makes clear that he too has addressed himself to that issue, not relevant in the present proceedings. All that may be said is that if there be no impediment in the Act to bringing into account, in a case such as the present, a net profit figure as gross income, then that profit figure will need to be calculated in accordance with the accounting standards. The real issue for decision is rather a question of construction of the Act, namely, whether in a case such as the present, the scheme of the Act precludes treating as gross income the net profit calculated in accordance with the financial or actuarial method. Hill J noted earlier, however, that accounting evidence was often relevant and often highly significant in resolving issues under the Act. He gave as an example the issue whether a cash receipts or accruals basis of accounting will give "a true reflex of the income derived by a taxpayer" (at 443, citing Carden's Case [1938] HCA 69 ; 63 CLR 108 his Honour also cited Arthur Murray [1965] HCA 58 ; 114 CLR 314).
Case: Commissioner of Taxation (Commonwealth) v Sun Alliance Investments Pty Ltd (in liq) [2005] HCA 70 ; (2005) 225 CLR 488
Outcome: cited
In Commissioner of Taxation (Commonwealth) v Sun Alliance Investments Pty Limited (in liq) [2005] HCA 70 ; (2005) 225 CLR 488, the High Court in a joint judgment, drew attention to the fact that the meaning of the word "derived" in a particular provision could not be ascertained without at least some reference to the thing said to be derived (in that case, the profits of the company) (at [42]). In particular their Honours cautioned against conflating the concept of derivation of income with derivation of profits. Their Honours referred to the fact that for the most part the notion of "income" directs attention to "receipts" by a taxpayer. Their Honours further referred to the late Professor RW Parsons's work, Income Taxation in Australia (The Law Book Company, 1985) in which the learned author stated (at [2.10]): "For the most part, the law expresses an ordinary usage notion of derivation of a receipt". I do not think that their Honours or the late learned author were intending to exclude the possibility that business and accounting practice might demonstrate, in the case of the particular category of income, that it is derived at a time other than upon receipt. Arthur Murray [1965] HCA 58 ; 114 CLR 314 stands against the existence of any such universal rule.
Case: Commissioner of Taxation v Everett [1980] HCA 6 ; (1980) 143 CLR 440
Outcome: cited
The applicants submit that the giving of the direction by ABB Zurich and the subsequent payment of the dividend to BAL occurred at a time when ABB Zurich was a bare trustee of the legal right to receive the dividend, both as a matter of Australian law (they refer to Commissioner of Taxation v Everett [1980] HCA 6 ; (1980) 143 CLR 440 at 450) and as a matter of English law (the proper law of the contracts to assign) as explained in the evidence of Lord Millett. They submit that a taxpayer derives as income only amounts to which it is beneficially entitled (citing Countess of Bective v Federal Commissioner of Taxation [1932] HCA 22 ; (1932) 47 CLR 417 at 423; Shepherd v Commissioner of Taxation [1965] HCA 70 ; (1965) 113 CLR 385 at 397; Zobory v Commissioner of Taxation (1995) 64 FCR 86 at 89; Service v Commissioner of Taxation [2000] FCA 188 ; (2000) 97 FCR 265 at [73] ; and Reiter v Commissioner of Taxation [2001] FCA 1068 ; (2001) 113 FCR 492 at [23] [24]). Finally, they submit that s 128A(3) (set out [14] above) was enacted "to maintain a corresponding principle in relation to withholding tax for dividends or interest paid to non-resident beneficiaries", citing the Explanatory Memorandum to the Income Tax Assessment Bill (No 4) 1967 , p 25.
Case: Commissioner of Taxation (NSW) v Stevenson [1937] HCA 72 ; (1937) 59 CLR 80
Outcome: discussed
In Commissioner of Taxation (NSW) v Stevenson [1937] HCA 72 ; (1937) 59 CLR 80 ( Stevenson ), Evatt J stated in relation to s 11(b) of the Income Tax (Management) Act 1928 (NSW), which referred to "dividends ... credited, paid, or distributed to the member or shareholder", that the words "credited", "paid" and "distributed" were concerned with the manner in which a shareholder "receives the benefit of the dividend" (at 108). 170 I acknowledge that Jolly [1933] HCA 63 ; 50 CLR 131 and Stevenson [1937] HCA 72 ; 59 CLR 80 concerned more than simply the word "paid", and that Jolly involved the discharge of indebtedness of the shareholder to the company. I suggest, however, that the general tenor of the passages quoted is that "payment" can take such form of satisfaction of the dividend debt as the shareholder may have agreed to accept, whether that agreement is contained in the company's articles of association or is external to them.
Case: Countess of Bective v Commissioner of Taxation [1932] HCA 22 ; (1932) 47 CLR 417
Outcome: cited
The applicants submit that the giving of the direction by ABB Zurich and the subsequent payment of the dividend to BAL occurred at a time when ABB Zurich was a bare trustee of the legal right to receive the dividend, both as a matter of Australian law (they refer to Commissioner of Taxation v Everett [1980] HCA 6 ; (1980) 143 CLR 440 at 450) and as a matter of English law (the proper law of the contracts to assign) as explained in the evidence of Lord Millett. They submit that a taxpayer derives as income only amounts to which it is beneficially entitled (citing Countess of Bective v Federal Commissioner of Taxation [1932] HCA 22 ; (1932) 47 CLR 417 at 423; Shepherd v Commissioner of Taxation [1965] HCA 70 ; (1965) 113 CLR 385 at 397; Zobory v Commissioner of Taxation (1995) 64 FCR 86 at 89; Service v Commissioner of Taxation [2000] FCA 188 ; (2000) 97 FCR 265 at [73] ; and Reiter v Commissioner of Taxation [2001] FCA 1068 ; (2001) 113 FCR 492 at [23] [24]). Finally, they submit that s 128A(3) (set out [14] above) was enacted "to maintain a corresponding principle in relation to withholding tax for dividends or interest paid to non-resident beneficiaries", citing the Explanatory Memorandum to the Income Tax Assessment Bill (No 4) 1967 , p 25.
Case: Deputy Commissioner of Taxation v Bluebottle UK Ltd [2006] ATC 4803
Outcome: cited
The dividend was declared before ss 254U and 254V were introduced into the predecessor to the Corporations Act 2001 (Cth), the Corporations Law , by the Company Law Review Act 1998 (Cth) (No 61 of 1998) with effect on and from 1 July 1998. Therefore I need not discuss the purpose and effect of those provisions. See the discussion of them in Bluebottle UK Ltd v Deputy Commissioner of Taxation [2006] NSWSC 706 ; (2006) 233 ALR 747 at [14] [45] and, on appeal, Deputy Commissioner of Taxation v Bluebottle UK Ltd [2006] ATC 4803 at [35] [53] per Santow JA, [105] [112] per Basten JA. (Special leave to appeal to the High Court was granted on 25 May 2007.)