mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Minister for Immigration and Ethnic Affairs v Gungor (1982) 63 FLR 441
Outcome: approved
I agree with comments of Sheppard J in Minister for Immigration and Ethnic Affairs v Gungor (1982) 63 FLR 441 at 454-455 where his Honour said: It is in my opinion not correct to say that this Court is by provisions given wide powers to make such order as it thinks fit. Implicit in its powers are a number of restrictions. The appeal is expressly limited to error of law, which alleged error is the sole matter before this Court and is the only subject matter of any order made consequent on the appeal. The order which this Court can make after hearing the appeal is also similarly restricted to an order which is appropriate by reason of its decision. It follows that the only order which can be properly made is one the propriety of which is circumscribed by and necessary to reflect this Court's view on the alleged or found error of law. To go further I would see as amounting to exceeding the jurisdiction of this Court under this section. A power to make 'such order as it thinks appropriate by reason of its decision' is much more restrictive than a power 'to make such order as it sees fit' or a power 'to make a decision in substitution for the decision' the subject of the appeal.'... The powers of this Court on appeal under s 44 of the AAT Act are limited to consideration of alleged errors of law by the Tribunal and go no further. (see also Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374 at 386 387 and Minister for Immigration and Multicultural Affairs v Thijagarajah [2000] HCA 9 ; (2000) 199 CLR 343 at 356-357)
Case: Nozzi Pty Ltd Commissioner of Taxation [2003] FCA 356
Outcome: cited
The burden of proof is on the applicant to show that there was no intentional disregard of the ITAA 1936 or the regulations and that the penalty under s 226J should not have been imposed (cf Nozzi Pty Ltd Commissioner of Taxation [2003] FCA 356 at [12] ). 43 As made clear by the Explanatory Memorandum to the Taxation Laws Amendment (Self Assessment) Bill 1992 which introduced s 226J, s 226J requires knowledge by the taxpayer that, for example, it has claimed a deduction knowing that it is not allowable. Accordingly, "intentional disregard" of the ITAA 1936 or regulations requires, inter alia , an understanding by the taxpayer of the effect of the relevant legislation or regulations, an appreciation by the taxpayer of how that legislation or regulation applies to the circumstances of the taxpayer, and finally, deliberate conduct of the taxpayer so as to flout the ITAA 1936 or regulations. The legislation treats "intentional disregard" differently from, and more seriously than, negligence to comply with the Act (cf s 226G) or recklessness with regard to the correct operation of the Act (cf s 226H). 44 Whether the conduct of the applicant has satisfied s 226J requires findings of fact by the Tribunal.
Case: Repatriation Commission v Deledio (1998) 83 FCR 82
Outcome: cited
Unfortunately question d was not the subject of oral submissions by the applicant during the hearing before me. Ms Brennan for the respondent however referred me to the decision of the Full Court in Repatriation Commission v Deledio (1998) 83 FCR 82. In that case however the Court noted that it was considering the principles of burden and onus of proof under s 120 (5) and (6) Veteran's Entitlements Act 1986 (Cth) ((1998) 83 FCR 82 at 95). 51 Like in the case before me, the applicable legislation in Deledio was not silent on issues of proof. In relation to the first issue in this case with respect to onus of proof, it is clear in light of s 14ZZK(b)(i) TA Act that the taxpayer in this case bore the onus of proof that the amended assessment was excessive. The nature of the onus of proof in the context of this legislation has been recognised in numerous decisions, including McCormack v Commissioner of Taxation [1979] HCA 18 ; (1979) 143 CLR 284 (although McCormack was decided under predecessor legislation), Federal Commissioner of Taxation v Munro (1997) 97 ATC 5041 and Vu v Commissioner of Taxation [2006] FCA 889. Further, it is clear on the authorities that the taxpayer, in its application before the Tribunal, must prove its case affirmatively on the balance of probabilities: McCormack 143 CLR at 303 per Gibbs J, Munro 97 ATC 5041, Vu v Commissioner of Taxation [2006] FCA 889 at [8] .
Case: Scottish Australian Mining Co v Federal Commissioner of Taxation [1950] HCA 16 ; (1950) 81 CLR 188
Outcome: cited
However, the fact that in realising the asset the taxpayer has engaged in activities which were planned, organised and coherent, and which produced profits considerably more than could otherwise have been obtained, does not mean that an advantageous realisation converts into a profit-making scheme: Scottish Australian Mining Co v Federal Commissioner of Taxation [1950] HCA 16 ; (1950) 81 CLR 188, Gibbs CJ in Whitford's Beach 150 CLR at 369. Examples of the application of this principle can be seen in Williams 127 CLR per Barwick CJ at 240-241, Menzies J at 245, Gibbs J at 249-251, Gutwenger v Commissioner of Taxation (1995) 55 FCR 95 and Casimaty v Commissioner of Taxation 1388 FCA (10 December 1997). Relevance of purpose
Case: Selleck v Commissioner of Taxation [1997] 799 FCA
Outcome: cited
In determining whether a sale receipt is generated as a profit component of a profit-making scheme, and therefore income in accordance with ordinary usages, it is only necessary that the intention or purpose of profit-making by sale was one aspect of a profit-making scheme in existence at the time of the acquisition of the asset (or, as was the case in Whitford's Beach [1982] HCA 8 ; 150 CLR 355, coming into existence during the course of the taxpayer's ownership of the asset and remaining in existence at the time of the sale): Westfield 28 FCR at 343-344. It is not necessary that the intention or purpose of profit-making by sale be the sole or dominant purpose of the taxpayer entering into the profit-making scheme: Cooling 22 FCR at 56-57 (cf Myer Emporium [1987] HCA 18 ; 163 CLR 199 where the motivating purpose of the transaction was for Myer to obtain working capital to enable it to diversify; and Moana Sand 88 ATC 4897 where the dominant purpose of the taxpayer in acquiring the land was not resale of the land at a profit). However the Full Court of the Federal Court in a number of cases has indicated that the purpose of profit-making must be a "not insignificant" aspect of the taxpayer's activities: Cooling 22 FCR at 57, Selleck v Commissioner of Taxation [1997] 799 FCA (20 August 1997). 35 I also note comments of the Full Court in Cooling 22 FCR 42 and Selleck [1997] 799 FCA, referred to earlier in this judgment, that the purpose of profit-making must be a "not insignificant" aspect of the taxpayer's activities.
Case: Thompson , Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 115 ALR 1
Outcome: cited
The authorities are clear that: &#8226; On administrative review under the AAT Act the Tribunal is the arbiter of the facts: Repatriation Commission v Thompson (1988) 82 ALR 352 at 357. Accordingly, in exercising its jurisdiction under s 44(1) AAT Act the task of the Court is to leave to the Tribunal decisions of fact, and to interfere only when the identified error is one of law ( Thompson , Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 115 ALR 1, Phillips v Commissioner for Superannuation [2005] FCAFC 2 , Federal Commissioner of Taxation v Swift (1989) 89 ATC 5101). There is no error in law simply in making a wrong finding of fact (Brennan J in Waterford v Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54 at 77, Thompson at 357). This point has been reiterated many times (see for example Pozzolanic at 9 and Phillips at [41]). &#8226; Simply disputing factual findings of the Tribunal on the weight of evidence does not raise errors of law in the absence of other circumstances. As pointed out by the Full Court in Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598 at 601: A number of authorities were cited by counsel for the appellant in support of the propositions that the making of a decision against the evidence or the weight of the evidence and the making of an unreasonable decision are errors of law. We find it unnecessary to examine these authorities for the reason that, in our opinion, there is no factual basis to found these propositions. We would, however, comment that the concepts of a decision being against the evidence and of being against the weight of the evidence belong to appeals from courts of law and have particular application to jury verdicts. Even in that context, they do not involve questions of law. They certainly have no place when the appeal, or review, is of proceedings of an administrative tribunal which is not bound by the rules of evidence and which, subject to the obligation to observe the requirements of natural justice, can inform itself as it chooses: see s 33(1)(c) of the Administrative Appeals Tribunal Act 1975 . An appellant who attacks a conclusion of the Tribunal because of deficiency of proof said to amount to error of law must show, if he is to succeed, that there was no material before the Tribunal upon which the conclusion could properly be based. (see also, Blackwood Hodge (Aust) Pty Ltd v Collector of Customs (NSW) (1980) 47 FLR 131 at 144 5, Deniz v Minister for Immigration and Ethnic Affairs (1983) 51 ALR 645 at 650, Repatriation Commission v Thompson 82 ALR at 358, Swift at 5,113, McAuliffe v Comcare [2002] FCA 769 at [51] , Commissioner of Taxation v Word Investments Ltd [2006] FCA 1414 at [32] )
Case: Vu v Commissioner of Taxation [2006] FCA 889
Outcome: cited
Like in the case before me, the applicable legislation in Deledio was not silent on issues of proof. In relation to the first issue in this case with respect to onus of proof, it is clear in light of s 14ZZK(b)(i) TA Act that the taxpayer in this case bore the onus of proof that the amended assessment was excessive. The nature of the onus of proof in the context of this legislation has been recognised in numerous decisions, including McCormack v Commissioner of Taxation [1979] HCA 18 ; (1979) 143 CLR 284 (although McCormack was decided under predecessor legislation), Federal Commissioner of Taxation v Munro (1997) 97 ATC 5041 and Vu v Commissioner of Taxation [2006] FCA 889. Further, it is clear on the authorities that the taxpayer, in its application before the Tribunal, must prove its case affirmatively on the balance of probabilities: McCormack 143 CLR at 303 per Gibbs J, Munro 97 ATC 5041, Vu v Commissioner of Taxation [2006] FCA 889 at [8] .
Case: Waterford v Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54
Outcome: cited
The authorities are clear that: &#8226; On administrative review under the AAT Act the Tribunal is the arbiter of the facts: Repatriation Commission v Thompson (1988) 82 ALR 352 at 357. Accordingly, in exercising its jurisdiction under s 44(1) AAT Act the task of the Court is to leave to the Tribunal decisions of fact, and to interfere only when the identified error is one of law ( Thompson , Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 115 ALR 1, Phillips v Commissioner for Superannuation [2005] FCAFC 2 , Federal Commissioner of Taxation v Swift (1989) 89 ATC 5101). There is no error in law simply in making a wrong finding of fact (Brennan J in Waterford v Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54 at 77, Thompson at 357). This point has been reiterated many times (see for example Pozzolanic at 9 and Phillips at [41]). &#8226; Simply disputing factual findings of the Tribunal on the weight of evidence does not raise errors of law in the absence of other circumstances. As pointed out by the Full Court in Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598 at 601: A number of authorities were cited by counsel for the appellant in support of the propositions that the making of a decision against the evidence or the weight of the evidence and the making of an unreasonable decision are errors of law. We find it unnecessary to examine these authorities for the reason that, in our opinion, there is no factual basis to found these propositions. We would, however, comment that the concepts of a decision being against the evidence and of being against the weight of the evidence belong to appeals from courts of law and have particular application to jury verdicts. Even in that context, they do not involve questions of law. They certainly have no place when the appeal, or review, is of proceedings of an administrative tribunal which is not bound by the rules of evidence and which, subject to the obligation to observe the requirements of natural justice, can inform itself as it chooses: see s 33(1)(c) of the Administrative Appeals Tribunal Act 1975 . An appellant who attacks a conclusion of the Tribunal because of deficiency of proof said to amount to error of law must show, if he is to succeed, that there was no material before the Tribunal upon which the conclusion could properly be based. (see also, Blackwood Hodge (Aust) Pty Ltd v Collector of Customs (NSW) (1980) 47 FLR 131 at 144 5, Deniz v Minister for Immigration and Ethnic Affairs (1983) 51 ALR 645 at 650, Repatriation Commission v Thompson 82 ALR at 358, Swift at 5,113, McAuliffe v Comcare [2002] FCA 769 at [51] , Commissioner of Taxation v Word Investments Ltd [2006] FCA 1414 at [32] )
Case: Whitaker v Commissioner of Taxation (1998) 82 FCR 261
Outcome: referred to
Even if the offer made by the respondents by letter dated 27 March 2007 was commensurate with the overall financial result to flow from the orders I made on 30 July 2008, and I hasten to add that I do not think it is, the ground on which the motion is brought is misconceived. As Lockhart J said in Whitaker v Commissioner of Taxation (1998) 82 FCR 261 at 269: 'The primary purpose of an award of pre-judgment interest is to compensate a successful plaintiff for the loss or detriment which he or she has suffered by being kept out of his or her money during the relevant period; that is to compensate the plaintiff for having been deprived of the use of the money: Ruby v Marsh [1975] HCA 32 ; (1975) 132 CLR 642 ; Batchelor v Burke [1981] HCA 30 ; (1981) 148 CLR 448 ; and MBP (SA) Pty Limited v Gogic [1991] HCA 3 ; (1991) 171 CLR 657. See P D Finn (ed), Essays on Damages (1st ed, 1992) and in particular the essay by J L R Davis, "Interest as Compensation", pp 149-152.' The applicant has been without its money since 28 January 2004 and that remains the case. It is only appropriate that it should have interest on that money up to the date of judgment. 11 The motion for the vacation of Order 6 is dismissed. 12 The respondents' notice of motion seeks (at [2]) the vacation of Orders 7 and 8 made on 30 July 2008 and their variation based on the matters set out in the affidavit of Ms Ellis sworn 5 August 2005. It does not say how they should be varied. Nor do their written submissions. What the respondents' notice of motion does seek (at [3]) is an order that the applicant pay the respondents' costs (on an indemnity or, alternatively, party-party basis) from 21 April 2007 or such other time as the Court thinks fit. On the hearing of the motion, the further alternative was introduced, namely, that each party pay its own costs from that date. Presumably, implicit in all this is that the first, second and third respondents should pay the applicant's costs of the application as ordered by Order 7, but only up to 21 April 2007. On the hearing of the motion, nothing was said about the second limb of Order 7, namely, that the first, second and third respondents pay the fourth, fifth and sixth respondents' costs of defending the application. Nor was anything said about Order 8 that the cross-claimant pay the first and second cross-respondents' costs of defending the cross-claim.
Case: Asia Television Ltd v Yau's Entertainment Pty Ltd (No 2) [2000] FCA 838 , 49 IPR 264
Outcome: followed
In Estex Clothing the goods exported were being forwarded from England to Australia, and it is not considered that the language employed by their Honours should be construed as contemplating anything beyond what they literally said. By exporting the goods from England into Australia the " overseas manufacturer projects into the course of trade in this country ... goods bearing his mark ". Such other authorities also seem to contemplate that there has to be an export of goods from overseas into Australia. Thus, in Brother Industries Ltd v Dynamic Supplies Pty Ltd [2007] FCA 1490 , 163 FCR 530 , Tamberlin J referred to Estex Clothing and summarised its effect as follows: [42] ... Put another way, where an overseas company has registered a trade mark in Australia for products it exports to the Australian market, then it is that company, when and if it distributes the goods into Australia, which can be said to have "used" its trade mark. See also: Asia Television Ltd v Yau's Entertainment Pty Ltd (No 2) [2000] FCA 838 at [9] , [2000] FCA 838 ; 49 IPR 264 at 268 per Gyles J.
Case: Australian Woollen Mills Ltd v F S Walton &amp; Co Ltd [1937] HCA 51 ; (1937) 58 CLR 641
Outcome: followed
It is necessary to make an attempt to estimate the effect or impression produced on the mind of persons of ordinary intelligence and memory. It is the impression or recollection which is carried away and retained that is necessarily the basis of any mistaken belief that the challenged mark is the same: Australian Woollen Mills Ltd v F S Walton &amp; Co Ltd [1937] HCA 51 ; (1937) 58 CLR 641 at 658 per Dixon and McTiernan JJ. See also: Global Brand Marketing Inc v YD Pty Ltd [2008] FCA 605 at [84] [89] per Sundberg J. The " recollection " may be imperfect: Crazy Ron's Communications Pty Ltd v Mobileworld Communications Pty Ltd [2004] FCAFC 196 at [87] , [2004] FCAFC 196 ; 209 ALR 1 at 21 per Moore, Sackville and Emmett JJ.
Case: Banque Commerciale SA en liquidation v Akhil Holdings Ltd [1990] HCA 11 ; (1990) 169 CLR 279
Outcome: followed
The function of pleadings is to state with sufficient clarity the case to be met: Banque Commerciale SA en liquidation v Akhil Holdings Ltd [1990] HCA 11 ; (1990) 169 CLR 279 at 286 7 per Mason CJ and Gaudron J. And written submissions can be no substitute for a properly pleaded case. 35 It is thus considered that Lion Nathan is confined by its pleadings to placing reliance upon the combination of words alone. Its Amended Defence , it is considered, does not state with sufficient clarity the defence that it was raising in respect to the claims of Gallo Winery ; indeed, as pleaded, it was only likely to have misled Gallo Winery . No application was made by Lion Nathan to amend its pleadings. Had such an application been made, it most probably would have been granted. Such limited cross-examination as there had been by Senior Counsel for Gallo Winery was not such as to have given rise to any irremediable prejudice that could not have been accommodated by recalling witnesses.
Case: Brother Industries Ltd v Dynamic Supplies Pty Ltd [2007] FCA 1490 , 163 FCR 530
Outcome: followed
In Estex Clothing the goods exported were being forwarded from England to Australia, and it is not considered that the language employed by their Honours should be construed as contemplating anything beyond what they literally said. By exporting the goods from England into Australia the " overseas manufacturer projects into the course of trade in this country ... goods bearing his mark ". Such other authorities also seem to contemplate that there has to be an export of goods from overseas into Australia. Thus, in Brother Industries Ltd v Dynamic Supplies Pty Ltd [2007] FCA 1490 , 163 FCR 530 , Tamberlin J referred to Estex Clothing and summarised its effect as follows: [42] ... Put another way, where an overseas company has registered a trade mark in Australia for products it exports to the Australian market, then it is that company, when and if it distributes the goods into Australia, which can be said to have "used" its trade mark. See also: Asia Television Ltd v Yau's Entertainment Pty Ltd (No 2) [2000] FCA 838 at [9] , [2000] FCA 838 ; 49 IPR 264 at 268 per Gyles J.
Case: Buying Systems (Australia) Pty Ltd v Studio Srl [1995] FCA 1063 ; (1995) 30 IPR 517
Outcome: distinguished
These negotiations, contends Gallo Winery , constituted a use of the BAREFOOT trade mark in Australia. Such negotiations, contends Gallo Winery , provide evidence which is at least as strong, if not stronger, than that which constituted a use in Buying Systems (Australia) Pty Ltd v Studio Srl [1995] FCA 1063 ; (1995) 30 IPR 517. 164 In Buying Systems there was activity aimed at setting up a new fashion magazine. That activity included obtaining business cards, printing letterheads, and obtaining advertising space. Gummow J concluded (at 520): These steps amount to sufficient activity by the opponent to produce the result that the applicant for registration at the date of its application on 8 December 1983 could not accurately put itself forward as claiming to be proprietor of the relevant mark. The activities of the opponent were sufficient to constitute a relevant use of the mark in Australia for the purpose of indicating or so as to indicate a connection in the course of trade between it and the new magazine. This is not a case where those activities occurred without any existing intention to offer or supply the magazine in trade. The case is quite different from activities of the nature discussed in Moorgate. As I have already indicated, the material before this court is far more extensive than that which was before the registrar. 166 Buying Systems , it is considered, provides no support to the case now sought to be advanced by Gallo Winery. Reference may also be made to NSW Dairy Corporation v Murray Goulburn Co-operative Co Ltd (No 1) (1989) 14 IPR 26. Gummow J there concluded that there had been a use of the mark in issue by reason of such facts during the statutory period as the provision of art work to enable the manufacture of packaging and the production of promotional videos. 167 In the present proceedings there were undoubtedly discussions between Gallo Winery and McWilliams Wines as to the launch in Australia of BAREFOOT wine. But by May 2007 the negotiations had not proceeded beyond just that, negotiations. Compare: Woolly Bull Enterprises Pty Ltd v Reynolds [2001] FCA 261 at [40] , [2001] FCA 261 ; 107 FCR 166 at 179. There was unquestionably an intention to launch BAREFOOT wine in Australia " in around September 2007 ". But, and unlike the position in Buying Systems , there had been no step taken during the non-use period comparable to the placing of advertisements or the printing of letterheads or business cards. The only step which had been taken was the unilateral step taken by McWilliams Wines to allocate some of its wine. Gallo Winery was pleased that such a step had been taken as it preserved the possibility of a launch in September 2007. That was a step taken, however, by McWilliams Wines and not by Gallo Winery.