mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Galea v Federal Commissioner of Taxation (1990) 90 ATC 5,060
Outcome: discussed
The only additional matter of principle to which I need refer concerning the onus of proof is that in a Tribunal review of an assessment it is not necessary for the Commissioner to seek to establish that the applicant's assessable income was or was at least a particular figure. As Hill J commented in Galea v Federal Commissioner of Taxation (1990) 90 ATC 5,060 at 5,067: "The fact that the Commissioner sought so to do and failed has no bearing, at the end of the day, on the question whether the applicant has discharged the onus of showing, as he is required by sec 190(b) of the Act to show, that the assessment is excessive. The Commissioner's failure to establish a positive case, if that is what he sought to do, leaves the Tribunal in no different position than it would have been in if the Commissioner had not sought at all to advance a positive case." 10 The Tribunal, necessarily, reviewed jointly the applications of Mr Vu and Mrs Duy as their cases and grounds of objection were interrelated. The primary cases put were that the money deposited in bank accounts during the relevant tax years represented capital and/or income of Mrs Duy derived by her in Vietnam prior to becoming a resident of Australia. Mrs Duy stated that she and Mr Vu subsequently carried US$550,000 and A$1,268,000 into Australia in cash in fourteen trips made by one or other of them: Reasons at [4], [10]. Only two small amounts allegedly so carried ($20,605 and $17,000) were declared to Australian Customs: Reasons at [10]. A further sum of A$513,999 was transferred from Vietnam through a Sydney-based company. I would note in passing that the Tribunal found (with considerable reservation) that this last sum was not income but represented funds of Mrs Duy prior to her arrival in Australia: Reasons at [31] and [32]. 11 The Tribunal accepted that Mrs Duy may well have earned income in a range of activities in which she said she engaged in Vietnam and which on the evidence of Mrs Duy and her witnesses indicated earnings of over US$2,000,000. However, the Tribunal was not satisfied that those activities necessarily resulted in her having available to her in 1996 the equivalent of almost A$2 million.
Case: Casarotto v Australian Postal Commission (1989) 86 ALR 399
Outcome: cited
As I understand the "bank accounts" submission it is said that once the Tribunal rejected Mr Vu's and Mrs Duy's evidence on the provenance of the money in Mrs Duy's accounts and concluded that it could not be satisfied that it came from Vietnam, the evidence was, simply, that Mrs Duy had bank accounts in her name. In these circumstances the Tribunal should have inferred or presumed the moneys were hers (the second ground of appeal). If the Tribunal had a reason for not so inferring or presuming and for finding as it did, it did not state its reason in its decisions. This omission was in relation to a material question of fact: s 43(2B) , AAT Act and as such involved an error of law (the first ground of appeal). On such an error see e.g. Casarotto v Australian Postal Commission (1989) 86 ALR 399 at 402-403. 22 These grounds of appeal can be answered shortly. The objection decision to be reviewed by the Tribunal was that all of the moneys in the bank accounts were the joint income of Mr Vu and Mrs Duy for the relevant tax years. The grounds of objection taken to the assessment of present relevance were, insofar as Mr Vu was concerned, (i) that the moneys in the accounts were brought from Vietnam; were capital and/or income derived by him when a non-resident of Australia; or were funds given to him by his own and his spouse's family; and (ii) the moneys did not represent assessable income and were not assessable to the taxpayer. 23 These, considered in context, are quite circumscribed grounds of objection. The Tribunal considered "their basic thrust" as relating to the alleged prior earning of funds by Mrs Duy in Vietnam and their later transfer by cash to, and then deposit in banks in, Australia. It would appear that Mr Vu's contentions before the Tribunal were limited to providing particular explanations as to the sources of the money in question which were ascribed primarily to his wife's money in Vietnam.
Case: Holloway v McFeeters [1956] HCA 25 ; (1956) 94 CLR 470
Outcome: applied
I would, though, make the following additional comment. The applicant's characterisation of the resultant state of the evidence, the Tribunal having not accepted his and Mrs Vu's account of the provenance of the moneys in the deposits, is inaccurate. The matter put in issue by Mr Vu and his wife was not the identity of the holder of bank accounts but the alleged particular source of the deposits in those accounts, i.e. transfers of Mrs Duy's monies from Vietnam. That positive case failed. Its failure, though, did not authorise or require the Tribunal to infer or to presume that the monies deposited were Mrs Duy's. The Tribunal had not accepted that the moneys had the provenance both Mr Vu and Mrs Duy advanced. The Tribunal's reasons betray an understandable scepticism concerning the actions and statements of the couple. In this setting, where positive proof of the provenance of the moneys in the account was necessary, if Mr Vu was to show his assessments were excessive, there could be no possible place for a presumption such as is now advanced. Equally, in light of the Tribunal's reasoning and finding, the inference proposed could not properly be said to be the most probable and reasonable deduction from the established facts: cf Holloway v McFeeters [1956] HCA 25 ; (1956) 94 CLR 470 at 477. The applicant's failure to discharge the burden cast on him was not an advantage to him. Rather it left unestablished what was needed to be established if he was to succeed before the Tribunal. No process of inference could overcome that disadvantage. 28 I will order that the application be dismissed with costs. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate: Dated: 12 July 2006 Counsel for the Applicant: Mr O'Loughlin Solicitor for the Applicant: Brian F Jacomb &amp; Associates Counsel for the Respondent: Mr Sievers Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 3 July 2006 Date of Judgment: 12 July 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/889.html
Case: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473
Outcome: cited
The Federal Magistrate considered that this may well have been what he called a mistake of a jurisdictional fact because of a decision of Tamberlin J in NBCY v Minister for Immigration (2004) 83 ALD 518. The Federal Magistrate did not apparently consider that this was an error of the kind referred to by the High Court in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473. 11 In any event, the learned Federal Magistrate went on to point out that the finding was an unnecessary one because the Tribunal had already come to the view that the appellant's claims should be rejected on credibility grounds. The Federal Magistrate observed that the RRT had independent grounds for believing that there was no well-founded fear of persecution if the appellant should return to Sri Lanka. Accordingly the Federal Magistrate did not consider that the RRT fell into jurisdictional error.
Case: Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 190 ALR 601
Outcome: referred to
The appellant's notice of appeal raises four grounds of appeal. One of them is reliance upon the decision of the High Court in Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 190 ALR 601. However, there is no substance in this ground of appeal because as a Full Court observed in NADR of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 293 ; (2002) 124 FCR 465 at [24] [28], the decision in Muin turns upon the question of whether the necessary factual basis is established. There was no such factual basis in the present case nor was there any admission of the necessary factual underpinnings that occurred in the High Court in Muin .
Case: NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 293 ; (2002) 124 FCR 465
Outcome: followed
The appellant's notice of appeal raises four grounds of appeal. One of them is reliance upon the decision of the High Court in Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 190 ALR 601. However, there is no substance in this ground of appeal because as a Full Court observed in NADR of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 293 ; (2002) 124 FCR 465 at [24] [28], the decision in Muin turns upon the question of whether the necessary factual basis is established. There was no such factual basis in the present case nor was there any admission of the necessary factual underpinnings that occurred in the High Court in Muin .
Case: VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471
Outcome: followed
The decision of a Full Court in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24] in the joint judgment of Finn and Stone JJ contains a useful summary of the meaning of the term "information" in s 424A(1). It is plain that the appellant does not point to any information of the kind set out in the joint judgment. The effect of the appellant's submission is that the RRT was bound to provide him with an opportunity to comment upon its subjective thought processes before arriving at a decision. That is contrary to well established authority; see VAF at [24(iii)]. See also the decision in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576.
Case: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Outcome: cited
The decision of a Full Court in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24] in the joint judgment of Finn and Stone JJ contains a useful summary of the meaning of the term "information" in s 424A(1). It is plain that the appellant does not point to any information of the kind set out in the joint judgment. The effect of the appellant's submission is that the RRT was bound to provide him with an opportunity to comment upon its subjective thought processes before arriving at a decision. That is contrary to well established authority; see VAF at [24(iii)]. See also the decision in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576.
Case: Australian Competition &amp; Consumer Commission v Shell Co of Australia Ltd (1999) 161 ALR 686
Outcome: applied
The respondents served the notice to produce to obtain production of documents said to be discoverable, but which the applicant has not discovered. This is not a legitimate use of a notice to produce. In Commissioner for Railways v Small (1938) 38 SR (NSW) 564, 574 Jordan CJ said: "[I]t is not legitimate to use a writ of subpoena duces tecum as a substitute for an application for discovery of documents, or as an alternative to an application for further and better discovery." See also Australian Competition &amp; Consumer Commission v Shell Co of Australia Ltd (1999) 161 ALR 686, 695-696. It is equally illegitimate to use a notice to produce for that purpose.
Case: Brown Bag Software v Symantec Corp (1960 F.2d 1465, 1470 (9 th Cir, 1992))
Outcome: cited
In-house counsel are not automatically denied access to an opponent's confidential information: R R Donnelley &amp; Sons Co v Quark Inc 2007 US Dist Lexis 424. But if in-house counsel is involved in "competitive decision-making" a protective order is often made. It has been said that involvement in competitive decision-making is the "crucial" or "decisive" or determinative factor in denying in-house counsel access to confidential information: Brown Bag Software v Symantec Corp (1960 F.2d 1465, 1470 (9 th Cir, 1992)); Glaxo Inc v Genpharm Pharmaceuticals Inc 796 F.Supp 872, 874 (ED NC, 1992); Carpenter Technology Corp v Armco Inc 132 FRD 24, 27 (ED Pa, 1991).
Case: Carpenter Technology Corp v Armco Inc 132 FRD 24, 27 (ED Pa, 1991)
Outcome: cited
In-house counsel are not automatically denied access to an opponent's confidential information: R R Donnelley &amp; Sons Co v Quark Inc 2007 US Dist Lexis 424. But if in-house counsel is involved in "competitive decision-making" a protective order is often made. It has been said that involvement in competitive decision-making is the "crucial" or "decisive" or determinative factor in denying in-house counsel access to confidential information: Brown Bag Software v Symantec Corp (1960 F.2d 1465, 1470 (9 th Cir, 1992)); Glaxo Inc v Genpharm Pharmaceuticals Inc 796 F.Supp 872, 874 (ED NC, 1992); Carpenter Technology Corp v Armco Inc 132 FRD 24, 27 (ED Pa, 1991).
Case: Commissioner for Railways v Small (1938) 38 SR (NSW) 564
Outcome: applied
The respondents served the notice to produce to obtain production of documents said to be discoverable, but which the applicant has not discovered. This is not a legitimate use of a notice to produce. In Commissioner for Railways v Small (1938) 38 SR (NSW) 564, 574 Jordan CJ said: "[I]t is not legitimate to use a writ of subpoena duces tecum as a substitute for an application for discovery of documents, or as an alternative to an application for further and better discovery." See also Australian Competition &amp; Consumer Commission v Shell Co of Australia Ltd (1999) 161 ALR 686, 695-696. It is equally illegitimate to use a notice to produce for that purpose.
Case: Ford v Hopkins (1701) 90 ER 964
Outcome: cited
The second issue concerns a notice to produce that has been served by the respondents. To understand the purpose of such a notice it is necessary to refer to what became known as the best evidence rule. The earliest statement of the best evidence rule is by Holt CJ in Ford v Hopkins (1701) 90 ER 964. He said "[T]he best proof that the nature of the thing will afford is only required". It soon became the single most important rule in the law of evidence. This did not prevent its abolition in federal courts and tribunals by s 51 of the Evidence Act 1995 (Cth).
Case: Glaxo Inc v Genpharm Pharmaceuticals Inc 796 F.Supp 872, 874 (ED NC, 1992)
Outcome: cited
In-house counsel are not automatically denied access to an opponent's confidential information: R R Donnelley &amp; Sons Co v Quark Inc 2007 US Dist Lexis 424. But if in-house counsel is involved in "competitive decision-making" a protective order is often made. It has been said that involvement in competitive decision-making is the "crucial" or "decisive" or determinative factor in denying in-house counsel access to confidential information: Brown Bag Software v Symantec Corp (1960 F.2d 1465, 1470 (9 th Cir, 1992)); Glaxo Inc v Genpharm Pharmaceuticals Inc 796 F.Supp 872, 874 (ED NC, 1992); Carpenter Technology Corp v Armco Inc 132 FRD 24, 27 (ED Pa, 1991).
Case: Harman v Secretary of State for the Home Department [1983] AC 280
Outcome: cited
Two issues have come up in discovery. Before dealing with them I should say a word or two about the topic. Discovery has several purposes in civil litigation. Although litigation is adversarial the principal object of discovery is to enable the judge to resolve contested issues with a full, or near full, understanding of the true facts. Discovery has several subsidiary purposes: it removes the risk of surprise at the trial; it narrows and clarifies the issues in dispute; it encourages the early settlement of litigation. On the other hand, discovery has the potential to cause harm. Information obtained on discovery may, if it is used for purposes unrelated to the suit, result in damage to a party's reputation or commercial interests. There is a rule, often but wrongly attributed to Harman v Secretary of State for the Home Department [1983] AC 280, that a party is not entitled to use information obtained on discovery for a purpose other than that of the action. Breach of the rule is a contempt of court. Sometimes the protection provided by the rule is inadequate. Then the party is entitled to additional protection. 2 The first issue, here, is whether the respondents are entitled to special protection for some of their discovered documents. The relevant circumstances are these. The applicant (a United States corporation) and the respondents (respectively a Canadian university and a Canadian corporation) are in competition. They compete in the design for manufacturing purposes of medical devices. One such device is a stent for the delivery of paclitaxel, a drug that is used in the treatment of peripheral artery disease. The device is sold around the world. 3 The respondents are the proprietors in Australia of patents for a stent the validity of which are being challenged in this action by the applicant. The applicant has a stent that it wishes to sell in Australia which the respondents say will infringe one or other of their patents. There is a cross-claim dealing with that claim. The action has some way to go before it is ready for trial. But there has been discovery. Each side claims that many of its discovered documents are confidential and that they would suffer serious harm if the contents were made known to the other side. The respective claims for confidentiality are not challenged. Indeed, the parties have put in place a regime to ensure that access to sensitive information is restricted to a select group of people (mostly lawyers and experts) each of whom has given an undertaking not to divulge what they learn, especially to their respective clients.
Case: Morgan v Babcock &amp; Wilcox Ltd [1929] HCA 25 ; (1929) 43 CLR 163
Outcome: cited
The best evidence of the contents of a document is the original document. A party, though, was not always in the position of being able to produce the original of a document. If the original was in the possession of the opposite party, that party could be served with a notice to produce and if the original was not produced, secondary evidence of its contents could be given: Morgan v Babcock &amp; Wilcox Ltd [1929] HCA 25 ; (1929) 43 CLR 163. If the first party still wanted the original the proper course was to serve a subpoena duces tecum . By the rules of the Federal Court (O 33 r 12) a notice to produce has been given a two fold function. First, if the notice was not answered it permitted the party serving it to give secondary evidence of the contents of a document. Second, it served the same function as a subpoena duces tecum requiring production of the original document.
Case: Roussel Uclaf Imperial Chemical Industries plc [1990] RPC 45
Outcome: followed
I should also refer to Roussel Uclaf Imperial Chemical Industries plc [1990] RPC 45 a case which followed Warner-Lambert Co v Glaxo Laboratories Ltd. The question there was whether trade secrets should be disclosed to two patent attorneys employed by the plaintiff. Both worked in the plaintiff's Paris office and were responsible for both the litigation in England and parallel litigation in France. The patent attorneys were permitted access to the confidential information but on terms that the plaintiff undertook that the attorneys "should not be concerned in any way with the French proceedings" and that the plaintiff would "pay to the defendants any sum that the court shall decide the defendants may have suffered by any wrongful disclosure of the secret process". The first condition was imposed to "minimise the chance that the confidential information [would] be used in [the French] litigation". The second condition was imposed because of the difficulty faced by the defendants in obtaining satisfactory compensation in the French courts if the confidential information was leaked.
Case: R R Donnelley &amp; Sons Co v Quark Inc 2007 US Dist Lexis 424
Outcome: cited
In-house counsel are not automatically denied access to an opponent's confidential information: R R Donnelley &amp; Sons Co v Quark Inc 2007 US Dist Lexis 424. But if in-house counsel is involved in "competitive decision-making" a protective order is often made. It has been said that involvement in competitive decision-making is the "crucial" or "decisive" or determinative factor in denying in-house counsel access to confidential information: Brown Bag Software v Symantec Corp (1960 F.2d 1465, 1470 (9 th Cir, 1992)); Glaxo Inc v Genpharm Pharmaceuticals Inc 796 F.Supp 872, 874 (ED NC, 1992); Carpenter Technology Corp v Armco Inc 132 FRD 24, 27 (ED Pa, 1991).
Case: U.S. Steel Corp v United States 730 F2d 1465 (Fed Cir, 1984)
Outcome: cited
To allay any concern that she might make improper use of confidential information that will come into her possession if she has access to the confidential documents, Ms Vinitskaya has sworn that she does not "participate in competitive decision-making" in her role as associate general counsel. In the United States a reference to "competitive decision-making" by in-house counsel means making company decisions that affect contracts, marketing, employment, pricing, product design, or "any or all of the client's decisions ... made in light of similar or corresponding information about a competitor." U.S. Steel Corp v United States 730 F2d 1465, 1468 (Fed Cir, 1984). The concept was developed in applications for protective orders restricting access to confidential trade information produced during discovery. 7 When deciding whether or not to make a protective order to protect trade secrets United States courts strike a balance between, on the one hand, the need for full and open discovery and, on the other, the need to protect parties from a misuse of trade secrets by competitors. Striking the right balance will present difficulties in the case of in-house counsel.