mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Jarra Creek Central Packing Shed Pty Ltd v Amcor Limited [2007] FCA 1559
Outcome: related
Aspects of the background to this matter have been briefly discussed in my previous judgments: see Jarra Creek Central Packing Shed Pty Ltd v Amcor Limited [2006] FCA 1802 ; Jarra Creek Central Packing Shed Pty Ltd v Amcor Ltd [2007] FCA 1559 ; and Jarra Creek Central Packing Shed Pty Ltd v Amcor Limited [2008] FCA 391. I set out below in short compass some additional background information relevant to this application.
Case: Jarra Creek Central Packing Shed Pty Ltd v Amcor Limited [2008] FCA 391
Outcome: related
Aspects of the background to this matter have been briefly discussed in my previous judgments: see Jarra Creek Central Packing Shed Pty Ltd v Amcor Limited [2006] FCA 1802 ; Jarra Creek Central Packing Shed Pty Ltd v Amcor Ltd [2007] FCA 1559 ; and Jarra Creek Central Packing Shed Pty Ltd v Amcor Limited [2008] FCA 391. I set out below in short compass some additional background information relevant to this application.
Case: Commissioner of Taxation v Gruber (1998) 43 NSWLR 271
Outcome: followed
The word "address" bears many meanings: see, for example, those collected in Sheen v Burke [1993] 1 VR 584 at 586. The meaning to be attributed to the word as it appears in s 222AOF(1) of the Act , must be discerned from the legislative context in which it appears. Section 222AOF is a facilitative provision. When read with s 28A of the Acts Interpretation Act , it provides for various methods by which the notices contemplated by s 222AOE may be served on directors who the Commissioner of Taxation considers are liable to pay penalties when a company fails to meet its statutory obligations. One method of service is the sending of notices by prepaid post to "an address" that "appears" from returns lodged by the relevant company with the ASC to be the director's place of residence or business. Service would be deemed to be effected even if the notice is not received by the director: Deputy Commissioner of Taxation v Gruber (1998) 43 NSWLR 271 at 277. Evidence by a director that he or she has not received a notice served in accordance with a provision such as s 28A or s 29 of the Acts Interpretation Act does not constitute proof of non delivery: Fancourt v Mercantile Credits Ltd [1983] HCA 25 ; (1983) 154 CLR 87 at 96-97.
Case: Deputy Commissioner of Taxation v Nercessian [2006] NSWCA
Outcome: followed
The applicant was correct not to press this argument. It was bound to fail for the reasons given by Santow JA in Deputy Commissioner of Taxation v Nercessian [2006] NSWCA 268 at [22] - [30] . 16 The application should be dismissed with costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice TRACEY. Associate: Dated: 9 February 2007 Counsel for the Applicant: Mr M O'Connor Solicitor for the Applicant: Maddens Lawyers Counsel for the Respondent: Ms D Harding Solicitor for the Respondent: Australian Taxation Office Date of Hearing: 7 February 2007 Date of Judgment: 9 February 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/76.html
Case: Mercantile Credits Ltd [1983] HCA 25 ; (1983) 154 CLR 87
Outcome: followed
The word "address" bears many meanings: see, for example, those collected in Sheen v Burke [1993] 1 VR 584 at 586. The meaning to be attributed to the word as it appears in s 222AOF(1) of the Act , must be discerned from the legislative context in which it appears. Section 222AOF is a facilitative provision. When read with s 28A of the Acts Interpretation Act , it provides for various methods by which the notices contemplated by s 222AOE may be served on directors who the Commissioner of Taxation considers are liable to pay penalties when a company fails to meet its statutory obligations. One method of service is the sending of notices by prepaid post to "an address" that "appears" from returns lodged by the relevant company with the ASC to be the director's place of residence or business. Service would be deemed to be effected even if the notice is not received by the director: Deputy Commissioner of Taxation v Gruber (1998) 43 NSWLR 271 at 277. Evidence by a director that he or she has not received a notice served in accordance with a provision such as s 28A or s 29 of the Acts Interpretation Act does not constitute proof of non delivery: Fancourt v Mercantile Credits Ltd [1983] HCA 25 ; (1983) 154 CLR 87 at 96-97.
Case: Felton v Mulligan [1971] HCA 39 ; (1971) 124 CLR 367
Outcome: referred to
Notwithstanding the infelicities of language which beset the proposed amended application and the procedural problems to which it gives rise, it was clear from her written submissions that there were two grounds on which the applicant sought to rely in order to avoid liability to pay the penalties referred to in the notices. They were that the "address" appearing on the various notices and on the envelopes in which they were posted did not constitute an "address" within the meaning of the Act and that the Australian Securities Commission ("ASC") documents to which the respondent had resort for the purpose of ascertaining the applicant's "address" were not "ASC documents" within the meaning of s 222AOF of the Act . The parties were agreed that the determination of these two points would avoid unnecessary delay and expense and agreed that the Court should hear argument and resolve them on a final basis. The applicant contended and the respondent conceded that the Court had jurisdiction to entertain the application under s 39B(1A)(c) of the Judiciary Act . There was a justiciable controversy between the parties as to whether or not a statutory precondition to the recovery by the respondent of penalties from the applicant had been satisfied. If the precondition had not been satisfied no obligation to make payments would have arisen and the applicant would have been immune from any liability to pay the penalties: c.f. Felton v Mulligan [1971] HCA 39 ; (1971) 124 CLR 367 at 374, 408, 416; Guss v Commissioner of Taxation [2006] FCAFC 88 ; (2006) 152 FCR 88 at 91, 103.
Case: Guss v Commissioner of Taxation [2006] FCAFC 88 ; (2006) 152 FCR 88
Outcome: referred to
Notwithstanding the infelicities of language which beset the proposed amended application and the procedural problems to which it gives rise, it was clear from her written submissions that there were two grounds on which the applicant sought to rely in order to avoid liability to pay the penalties referred to in the notices. They were that the "address" appearing on the various notices and on the envelopes in which they were posted did not constitute an "address" within the meaning of the Act and that the Australian Securities Commission ("ASC") documents to which the respondent had resort for the purpose of ascertaining the applicant's "address" were not "ASC documents" within the meaning of s 222AOF of the Act . The parties were agreed that the determination of these two points would avoid unnecessary delay and expense and agreed that the Court should hear argument and resolve them on a final basis. The applicant contended and the respondent conceded that the Court had jurisdiction to entertain the application under s 39B(1A)(c) of the Judiciary Act . There was a justiciable controversy between the parties as to whether or not a statutory precondition to the recovery by the respondent of penalties from the applicant had been satisfied. If the precondition had not been satisfied no obligation to make payments would have arisen and the applicant would have been immune from any liability to pay the penalties: c.f. Felton v Mulligan [1971] HCA 39 ; (1971) 124 CLR 367 at 374, 408, 416; Guss v Commissioner of Taxation [2006] FCAFC 88 ; (2006) 152 FCR 88 at 91, 103.
Case: Sheen v Burke [1993] 1 VR 584
Outcome: referred to
The word "address" bears many meanings: see, for example, those collected in Sheen v Burke [1993] 1 VR 584 at 586. The meaning to be attributed to the word as it appears in s 222AOF(1) of the Act , must be discerned from the legislative context in which it appears. Section 222AOF is a facilitative provision. When read with s 28A of the Acts Interpretation Act , it provides for various methods by which the notices contemplated by s 222AOE may be served on directors who the Commissioner of Taxation considers are liable to pay penalties when a company fails to meet its statutory obligations. One method of service is the sending of notices by prepaid post to "an address" that "appears" from returns lodged by the relevant company with the ASC to be the director's place of residence or business. Service would be deemed to be effected even if the notice is not received by the director: Deputy Commissioner of Taxation v Gruber (1998) 43 NSWLR 271 at 277. Evidence by a director that he or she has not received a notice served in accordance with a provision such as s 28A or s 29 of the Acts Interpretation Act does not constitute proof of non delivery: Fancourt v Mercantile Credits Ltd [1983] HCA 25 ; (1983) 154 CLR 87 at 96-97.
Case: Minister for Immigration &amp; Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: cited
His Honour found that these grounds effectively invited the Court to undertake a review of the merits of the appellant's application and 'to make findings on her claim different from the findings which were made by the Tribunal'. His Honour found correctly that the Court could not engage in merits review and that findings of fact were uniquely within the jurisdiction of the Tribunal: SZKRL at [10] [11]; see Minister for Immigration &amp; Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272. No error is disclosed in his Honour's finding that the grounds pleaded by the appellant in her application failed to demonstrate any jurisdictional error on the part of the Tribunal. 12 His Honour noted further that at the hearing before him the appellant also raised an allegation that the Tribunal's finding 'was not reasonable' because she was a genuine Falun Gong practitioner: SZKRL at [9]. His Honour found that this ground effectively amounted to the appellant expressing 'emphatic disagreement with the Tribunal's findings and decision'. His Honour found that such a complaint again invited impermissible merits review and could not succeed. For the reasons outlined at [11] above, no error is apparent in this approach. 13 To the extent that the ground sought to allege that 'there was some illogicality or irrationality in the Tribunal's decision', his Honour found that there was no proper basis for such an allegation. His Honour found that the basis of the Tribunal's decision was 'clear', 'reasoned' and was 'open to it on the evidence before it' and that no jurisdictional error was disclosed: SZKRL at [12] [13]. 14 Accordingly, his Honour found that no jurisdictional error had been demonstrated on the part of the Tribunal and dismissed the application with costs: SZKRL at [14]. 15 The appellant was required to file and serve a notice of appeal within 21 days from the date the judgment appealed from was pronounced: Order 52 rule 15(1) of the Federal Court Rules 1979 ('the Rules'). His Honour delivered ex tempore reasons for judgment at the conclusion of the hearing on 26 October 2006. Accordingly, the appellant had to file and serve a notice of appeal on or before 16 November 2007. Instead, she filed an application for an extension of time to file and serve a notice of appeal on 28 November 2007, some 12 days outside the prescribed appeal period. 18 The appellant has not advanced any explanation or any evidence for her inability to file a notice of appeal by 16 November 2007. In her affidavit sworn on 26 November 2007 and filed on 28 November 2007 in support of her application for an extension of time, the appellant simply restates her factual claims for refugee status and asserts that she disagrees with the decision of the Tribunal and that the 'RRT did not consider I am genuine Falun Gong Practitioner'. These matters amount to impermissible merits review and do not advance the appellant's case in any meaningful sense: Wu Shan Liang , ibid; NAHI v Minister for Immigration &amp; Multicultural Affairs [2004] FCAFC 10.
Case: Jess v Scott (1986) 12 FCR 187 
Outcome: cited
The appellant now seeks an order pursuant to O 52 r 15(2) of the Rules, which provides that the Court or a Judge for 'special reasons may at any time give leave to file and serve a notice of appeal'. Accordingly, O 52 r 15(2) imposes a requirement that 'special reasons' exist (as to the nature of the power and what is meant by 'special reasons' see: Jess v Scott (1986) 12 FCR 187 at 195 196 per Lockhart, Sheppard and Burchett JJ), and even if that condition is fulfilled, it leaves a discretion to grant or refuse leave to appeal.
Case: Minister for Immigration &amp; Multicultural Affairs v Roda Kabail [1998] FCA 1320
Outcome: cited
Whether or not special reasons is established will always be a question of fact and degree in each case: Minister for Immigration &amp; Multicultural Affairs v Roda Kabail &amp; Ors [1998] FCA 1320 per Tamberlin J. However, the special reasons criterion is not established in the present case. The appellant has failed to assert any basis that could be seen as meeting the 'special reasons' requirement.
Case: NAHI v Minister for Immigration &amp; Multicultural Affairs [2004] FCAFC 10 
Outcome: cited
The appellant has not advanced any explanation or any evidence for her inability to file a notice of appeal by 16 November 2007. In her affidavit sworn on 26 November 2007 and filed on 28 November 2007 in support of her application for an extension of time, the appellant simply restates her factual claims for refugee status and asserts that she disagrees with the decision of the Tribunal and that the 'RRT did not consider I am genuine Falun Gong Practitioner'. These matters amount to impermissible merits review and do not advance the appellant's case in any meaningful sense: Wu Shan Liang , ibid; NAHI v Minister for Immigration &amp; Multicultural Affairs [2004] FCAFC 10.
Case: Howard v Australian Electoral Commission [2000] FCA 1767
Outcome: cited
The Minister submits that, even if the 'special reasons' requirement is found to have been met (which he does not concede), the application ought still be refused on discretionary grounds. In his submissions, factors to be taken into account in the exercise of the discretion include the importance of the question sought to be raised by the proposed appeal, the bona fides of the proposed appeal and the prima facie strength of the proposed grounds of appeal: Howard v Australian Electoral Commission [2000] FCA 1767 per Branson J at [7]. The proposed appeal must have sufficient prospect of success to make it just that it should proceed: W105/99A v Minister for Immigration &amp; Multicultural Affairs [2001] FCA 1786 at [13] ; WACF v Minister for Immigration &amp; Multicultural and Indigenous Affairs [2003] FCA 1385 per Carr J at [30].
Case: W105/99A v Minister for Immigration &amp; Multicultural Affairs [2001] FCA 1786
Outcome: cited
The Minister submits that, even if the 'special reasons' requirement is found to have been met (which he does not concede), the application ought still be refused on discretionary grounds. In his submissions, factors to be taken into account in the exercise of the discretion include the importance of the question sought to be raised by the proposed appeal, the bona fides of the proposed appeal and the prima facie strength of the proposed grounds of appeal: Howard v Australian Electoral Commission [2000] FCA 1767 per Branson J at [7]. The proposed appeal must have sufficient prospect of success to make it just that it should proceed: W105/99A v Minister for Immigration &amp; Multicultural Affairs [2001] FCA 1786 at [13] ; WACF v Minister for Immigration &amp; Multicultural and Indigenous Affairs [2003] FCA 1385 per Carr J at [30].
Case: WACF v Minister for Immigration &amp; Multicultural and Indigenous Affairs [2003] FCA 1385
Outcome: cited
The Minister submits that, even if the 'special reasons' requirement is found to have been met (which he does not concede), the application ought still be refused on discretionary grounds. In his submissions, factors to be taken into account in the exercise of the discretion include the importance of the question sought to be raised by the proposed appeal, the bona fides of the proposed appeal and the prima facie strength of the proposed grounds of appeal: Howard v Australian Electoral Commission [2000] FCA 1767 per Branson J at [7]. The proposed appeal must have sufficient prospect of success to make it just that it should proceed: W105/99A v Minister for Immigration &amp; Multicultural Affairs [2001] FCA 1786 at [13] ; WACF v Minister for Immigration &amp; Multicultural and Indigenous Affairs [2003] FCA 1385 per Carr J at [30].
Case: SZGZQ v Minister for Immigration &amp; Anor [2006] FMCA 1203
Outcome: cited
In this appeal, the Appellant contends that Federal Magistrate Driver erred ( SZGZQ v Minister for Immigration &amp; Anor [2006] FMCA 1203) in dismissing on 17 August 2006 an Application for Review of a decision of the Refugee Review Tribunal ('the Tribunal') dated 16 January 2004 and delivered on 10 February 2004 affirming a decision of the Minister's Delegate refusing the Appellant's application for protection visa pursuant to the Migration Act 1958 (Cth) ('the Act'). 2 The Appellant's grounds of appeal are these. 3 First, the Appellant contends that Federal Magistrate Driver erred by failing to find that the Tribunal failed to apply the correct test in determining the degree of satisfaction required to be established in order to find a well-founded fear of persecution for a Convention reason (Article 1A(2) of the 1951 Convention Relating to the Status of Refugees ('the Convention') as amended by the 1967 Protocol Relating to the Status of Refugees ('the Refugees' Protocol')) as contended for by the Appellant. As a subset of that notion, the Appellant contends that since the Tribunal could not be satisfied that the Appellant held a well-founded fear of persecution in the absence of further information from the Appellant, the Tribunal ought to have called for further information from the Appellant.
Case: SJSB v Minister for Immigration &amp; Multicultural Affairs [2004] FCAFC 255
Outcome: cited
The approach adopted by the Tribunal is entirely consistent with the observations of their Honours in SJSB v Minister for Immigration &amp; Multicultural Affairs [2004] FCAFC 255 at [15] , per Ryan, Jacobson and Lander JJ; Minister for Immigration &amp; Multicultural Affairs v VSAF of 2003 [2005] FCAFC 73 at [17] , per Black CJ, Sundberg and Bennett JJ and Minister for Immigration &amp; Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259. The Appellant contends that the Tribunal ought to have exercised a statutory power to seek further information from the Appellant before reaching a conclusion as to whether it could be satisfied of the relevant matters. Section 424 of the Act is an enabling provision. It does not create a mandatory obligation, in terms.
Case: Minister for Immigration &amp; Multicultural Affairs v VSAF of 2003 [2005] FCAFC 73
Outcome: cited
The approach adopted by the Tribunal is entirely consistent with the observations of their Honours in SJSB v Minister for Immigration &amp; Multicultural Affairs [2004] FCAFC 255 at [15] , per Ryan, Jacobson and Lander JJ; Minister for Immigration &amp; Multicultural Affairs v VSAF of 2003 [2005] FCAFC 73 at [17] , per Black CJ, Sundberg and Bennett JJ and Minister for Immigration &amp; Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259. The Appellant contends that the Tribunal ought to have exercised a statutory power to seek further information from the Appellant before reaching a conclusion as to whether it could be satisfied of the relevant matters. Section 424 of the Act is an enabling provision. It does not create a mandatory obligation, in terms.
Case: Minister for Immigration &amp; Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: cited
The approach adopted by the Tribunal is entirely consistent with the observations of their Honours in SJSB v Minister for Immigration &amp; Multicultural Affairs [2004] FCAFC 255 at [15] , per Ryan, Jacobson and Lander JJ; Minister for Immigration &amp; Multicultural Affairs v VSAF of 2003 [2005] FCAFC 73 at [17] , per Black CJ, Sundberg and Bennett JJ and Minister for Immigration &amp; Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259. The Appellant contends that the Tribunal ought to have exercised a statutory power to seek further information from the Appellant before reaching a conclusion as to whether it could be satisfied of the relevant matters. Section 424 of the Act is an enabling provision. It does not create a mandatory obligation, in terms.
Case: Trade Practices Commission v CSR Ltd (1991) ATPR 41-076
Outcome: cited
Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 at 52,152-3 French J (as he then was) identified the following additional considerations as being relevant to the level of pecuniary penalty imposed, including: the size of the contravening company; the degree of power it has, as evidenced by its market share and ease of entry into the market; the deliberateness of the contravention and the period over which it extended; whether the contravention arose out of the conduct of senior management or at a lower level; whether the company has a corporate culture conducive to compliance with the Act, as evidenced by educational programs and disciplinary or other corrective measures in response to an acknowledged contravention; and whether the company has shown a disposition to co-operate with the authorities responsible for the enforcement of the Act in relation to the contravention. Obviously, the second of those matters is inapt in relation to a contravention of s 18(3) of the EPBC Act, and possibly so too is the fifth of those matters.