mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Murrumbidgee Groundwater Preservation Association Inc v Minster for Natural Resources [2005] NSWCA 10
Outcome: applied
case not dissimilar in principle to the present was Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10. In that case, the Minister had made a Water Sharing Plan for the Lower Murrumbidgee Groundwater Sources 2003, which was a legislative instrument under the Water Management Act 2000 (NSW). The appellant, who was an association of primary producers, unsuccessfully challenged the validity of the Plan in the Land and Environment Court and appealed to the Court of Appeal on a number of grounds, including one based on irrationality. Spigelman CJ (with whom Beazley and Tobias JJA agreed) said, at [111]: The Appellant's case on irrationality has its factual foundation in the limited interconnectivity within the aquifers the subject of the Plan. Although it is accepted that each aquifer is a single geological formation, it is submitted that the absence of interconnectivity is such that it is not rational to treat this formation as a single body of water for the purposes of a plan under the Act. At [121], his Honour summarised the contentions by the appellant: [Under this plan] the transferor will receive a windfall by obtaining consideration for an asset, being the entitlement which they may never have used and which in the future could not use. The transfer of entitlements provides no environmental benefit, it could never have been utilised, but the holder of the licence receives financial consideration (which may be quite substantial) from the transferee who can utilise the licence. Continuing: The effect is that the transferee suffers a financial detriment which is to the benefit of the transferor. In these circumstances, although there may be windfall gains and losses, there is no net benefit for the acquifer or the environment. ... ... the absurdity of the Plan is emphasised by the fact that many of those who will acquire water will have expended considerable sums in developing their properties, in some cases with the active encouragement of the government, only to now pay money for water rights without which part of their capital investment in infrastructure may be lost. ... ... the applicants submit that the consequences of the Plan is to give a windfall to some and inflict financial hardship on others. And at [122]: ... the limited degree of interconnectivity which is accepted by all experts leads to a level of unfairness that indicates irrationality or illogicality. Where there is a challenge to the exercise of a statutory power on the basis of irrationality or unreasonableness, Spigelman CJ said, at [129]: ... Perhaps the most appropriate formulation is whether the decision is "illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds": Minister for Immigration and Multicultural Affairs Ex Parte Applicant S 20/2002 [2003] HCA 30 ; (2003) 77 ALJR 1165 at [52] and [37], [173] ....
Case: P W Adams v Australian Fisheries Management Authority (1998) 49 ALD 68
Outcome: considered
J observed in P W Adams v Australian Fisheries Management Authority (1998) 49 ALD 68 , at 76-77: Plainly, there is a difference between "maximising economic efficiency in the exploitation of fisheries resources" and maximising the economic efficiency of individual participants in the fishing industry. The objectives of the AFMA are objectives intended to be pursued in the public interest; they are not intended to require AFMA to pursue, assuming that it would be possible for it to do so, the separate interests of individual participants in the fishing industry. Of course, in many circumstances, the respective interests of individual participants in the fishing industry and the public interests which AFMA is required by its objectives to pursue in the performance of its functions will be consistent. In some circumstances they will not be consistent.
Case: Secretary, Department of Primary Industries and Energy v Collins [1992] FCA 61 ; (1992) 34 FCR 340
Outcome: considered
J in Secretary, Department of Primary Industries and Energy v Collins [1992] FCA 61 ; (1992) 34 FCR 340 was concerned with the Great Australian Bight Trawl Fishery Preliminary Management Plan, determined by the Minutes under s 7B of the Fisheries Act 1958 (Cth). His Honour said, at 345: The starting point is the proposition that the Plan has the force of law. ... Parliament clearly intended that a plan of management .... should create detailed rights and obligations in relation to a fishery ... The provisions of the Acts Interpretation Act concerning tabling before and disallowing by Parliament are to apply. Thus a plan of management stands on quite a different legal footing from policy statements or guidelines. The Minister and the Secretary, like all other citizens, are bound by the law contained in a plan of management just as they are by the law in the Act itself. It is now accepted that the Management Plan is a legislative instrument, and is amenable to challenge only under the Judiciary Act . It was suggested that item 5 of the s 32 table of the Management Plan was not "reasonably appropriate and adapted to obtain the objectives" of maximising economic efficiency set out in s 3 of the FM Act.
Case: South Australia v Tanner [1989] HCA 3 ; (1989) 166 CLR 161
Outcome: cited
the words of Gummow J, the question of validity in the present case is whether the determination of the Management Plan goes beyond what could reasonably be adopted for the purpose of allocating statutory fishing rights in the Fishery and promoting the economic efficiency of the Fishery, it not being enough that the Court itself might think that the Plan as amended inexpedient or misguided: see South Australia v Tanner [1989] HCA 3 ; (1989) 166 CLR 161 at 168.
Case: Australian Securities and Investments Commission v Rowena Nominees Pty Ltd (2003) 45 ACSR 424
Outcome: cited
The procedure by which the liquidator establishes his claim and entitlement to be paid remuneration is found in s 473(3) of the Act which provides: "A liquidator is entitled to receive such remuneration by way of percentage or otherwise as is determined: (a) if there is a committee of inspection by agreement between the liquidator and the committee of inspection; or (b) if there is no committee of inspection of the liquidator and the committee of inspection fail to agree: (i) by resolution of the creditors; or (ii) if no such resolution is passed by the Court." As the meeting convened to consider a resolution to approve of remuneration for the liquidator did not pass that resolution, the Court now has power pursuant to s 473(3) of the Act to determine the amount of the remuneration which can be paid to the liquidator out of the Company's assets: Re Interchase Corporation Ltd (In Liq) (1993) 44 FCR 501; Re WA Pines Pty Ltd (In Liq) (1994) 12 ACLC 328; Australian Securities and Investments Commission v Rowena Nominees Pty Ltd (2003) 45 ACSR 424 at 444.
Case: Re Interchase Corporation Ltd (In Liq) (1993) 44 FCR 501
Outcome: cited
The procedure by which the liquidator establishes his claim and entitlement to be paid remuneration is found in s 473(3) of the Act which provides: "A liquidator is entitled to receive such remuneration by way of percentage or otherwise as is determined: (a) if there is a committee of inspection by agreement between the liquidator and the committee of inspection; or (b) if there is no committee of inspection of the liquidator and the committee of inspection fail to agree: (i) by resolution of the creditors; or (ii) if no such resolution is passed by the Court." As the meeting convened to consider a resolution to approve of remuneration for the liquidator did not pass that resolution, the Court now has power pursuant to s 473(3) of the Act to determine the amount of the remuneration which can be paid to the liquidator out of the Company's assets: Re Interchase Corporation Ltd (In Liq) (1993) 44 FCR 501; Re WA Pines Pty Ltd (In Liq) (1994) 12 ACLC 328; Australian Securities and Investments Commission v Rowena Nominees Pty Ltd (2003) 45 ACSR 424 at 444.
Case: Re WA Pines Pty Ltd (In Liq) (1994) 12 ACLC 328
Outcome: cited
The procedure by which the liquidator establishes his claim and entitlement to be paid remuneration is found in s 473(3) of the Act which provides: "A liquidator is entitled to receive such remuneration by way of percentage or otherwise as is determined: (a) if there is a committee of inspection by agreement between the liquidator and the committee of inspection; or (b) if there is no committee of inspection of the liquidator and the committee of inspection fail to agree: (i) by resolution of the creditors; or (ii) if no such resolution is passed by the Court." As the meeting convened to consider a resolution to approve of remuneration for the liquidator did not pass that resolution, the Court now has power pursuant to s 473(3) of the Act to determine the amount of the remuneration which can be paid to the liquidator out of the Company's assets: Re Interchase Corporation Ltd (In Liq) (1993) 44 FCR 501; Re WA Pines Pty Ltd (In Liq) (1994) 12 ACLC 328; Australian Securities and Investments Commission v Rowena Nominees Pty Ltd (2003) 45 ACSR 424 at 444.
Case: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 ; (2003) 198 ALR 293
Outcome: referred to
Before the Magistrate, the appellant contended that she had in fact changed her mind after completing the form on 28 January 2005 and that she had decided that she did wish to appear at a hearing. She said that she had contacted the Tribunal on 4 February 2005 and advised a male person of that fact. She asserted that the Tribunal erred in proceeding without affording her a hearing and that that error was a jurisdictional error: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 ; (2003) 198 ALR 293. 9 Under s 425(1) of the Migration Act , the Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. Section 425(2) provides that subsection (1) does not apply if, inter alia, the applicant consents to the Tribunal deciding the review without the applicant appearing before it. 10 Before the Magistrate, the assertion that the appellant contacted the Tribunal on or about 4 February 2005 was in dispute. He decided that the appellant did not contact the Tribunal on or about that date and that by reason of her response of 28 January 2005 the Tribunal was entitled to proceed without hearing from the appellant in terms of s 425(1) of the Migration Act . In view of his finding of fact, the Magistrate did not need to consider whether, had he accepted the appellant's version of events, the Tribunal had committed an error going to jurisdiction. The only remaining question for the Magistrate was whether the Tribunal had otherwise committed a jurisdictional error and he had decided that it had not.
Case: Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61
Outcome: applied
Plainly the Magistrate was saying that the appellant's natural justice claim had to be measured against the provisions of Div 4 of Pt 7 of the Migration Act 1958 , and so measured did not fall within the scope of the modified natural justice requirements contained therein, as is indeed the case. The complaint that his Honour failed to explain how those provisions answered the appellant's natural justice claim is baseless. The appellant was making a common law claim that was not replicated in the modified regime. See Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [64] - [70] and SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [5] - [8] .
Case: SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62
Outcome: applied
Plainly the Magistrate was saying that the appellant's natural justice claim had to be measured against the provisions of Div 4 of Pt 7 of the Migration Act 1958 , and so measured did not fall within the scope of the modified natural justice requirements contained therein, as is indeed the case. The complaint that his Honour failed to explain how those provisions answered the appellant's natural justice claim is baseless. The appellant was making a common law claim that was not replicated in the modified regime. See Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [64] - [70] and SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [5] - [8] .
Case: VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123
Outcome: applied
The fourth ground of appeal is also predicated upon the first. However, the essential complaint is that the Magistrate failed to accept that the Tribunal erred in not giving the appellant "required notice that it was rejecting her evidence, which evidence was the reason or part of the reason for the refusal of her application". It does not appear that this precise point was put to the Magistrate, although it is clear that the appellant did rely on s 424A of the Migration Act before his Honour. The Magistrate said: "The applicant also contends that the Tribunal failed to put inconsistencies to the applicant. However, the identification of inconsistencies is a matter of the Tribunal's evaluation of the evidence put forward by the applicant. It is not 'information' within the meaning of s 424A of the Act as suggested by the applicant. This issue has been authoritatively settled by the Full Federal Court in VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 at [24] ." Had the present complaint been put to the Magistrate, it would have been rejected for the reason contained in that passage. The Tribunal, having read the appellant's material and heard what she said at the hearing, decided as part of its evaluation of her evidence not to accept parts of it. That decision is not "information" within s 424A. See VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 at [24] .
Case: Bell &amp; Moir Corp Pty Limited v Commissioner of Taxation (1999) 42 ATR 421
Outcome: referred to
The respondent stressed that the course taken was to buy contracts from independent third parties. It submitted that the payment of such a large proportion of the contract revenue stream as an Assignment Fee was reflective of a concentrated investment in capital structure acquired to bear fruit in the longer term and that the "true legal character" of the expenditure was to create or effect the business structure and was thus of a capital nature: Pine Creek Goldfields v Commissioner of Taxation (1999) 41 ATR 71 and Bell &amp; Moir Corp Pty Limited v Commissioner of Taxation (1999) 42 ATR 421 at 424.
Case: Cliffs International Inc v The Commissioner of Taxation of the Commonwealth of Australia [1979] HCA 8 ; (1979) 142 CLR 140
Outcome: referred to
That approach, however, tended to be transformed in expression to choices between form and substance: cf Cliffs International Inc v The Commissioner of Taxation of the Commonwealth of Australia [1979] HCA 8 ; (1979) 142 CLR 140 at 158, and McLennan v Commissioner of Taxation (1989) 21 FCR 80 at 86, and the need to have reason to look through form to substance. I have already indicated my view that that adds an unnecessary complication to the test expressed in Sun Newspapers and Hallstroms Case that has been applied on numerous occasions. If one is to use the expression "form and substance", the test should be understood as requiring an assessment of what the expenditure is calculated to effect in substance from a practical and business point of view. 73 The above is adequate to identify the essential structure of the debate. Various refinements were made to the arguments by reference, in particular, to the terms of Sun Newspapers [1938] HCA 72 ; 61 CLR 337 , Hallstroms Case [1946] HCA 34 ; 72 CLR 634 , BP Australia [1965] HCA 35 ; 112 CLR 386 and Regent Oil v Strick [1966] AC 295 . For the reasons expressed by Barwick CJ in Cliffs International 142 CLR at 147-148 nothing further is to be gained by analysing these other cases too finely once the underlying principle is clear.
Case: Commissioner of Taxation (Cth) v Raymor (NSW) Pty Limited (1990) 24 FCR 90
Outcome: referred to
The mere identification of the correct description of the legal rights obtained or transferred by any transaction is generally too narrow a focus for the answering of the question. This is especially so once it is recognised that almost every commercial arrangement based on contract can be analysed jurisprudentially from the perspective of buying and selling rights or choses in action. Such rights are merely the legal or juridicial building blocks of relationships built from business and practical activity. The enquiry as to whether an outgoing is on capital or revenue account looks to the business and practical effects and advantages sought in the whole context: Commissioner of Taxation of the Commonwealth of Australia v Raymor (NSW) Pty Limited (1990) 24 FCR 90 at 99 and National Australia Bank 80 FCR at 363-364.
Case: Commissioner of Taxation of the Commonwealth of Australia v James Flood Pty Limited [1953] HCA 65 ; (1953) 88 CLR 492
Outcome: applied
I do not think that the accounting treatment undertaken by TAPL assists greatly. The booking of payments as an asset, amortised against the profit and loss account, can be seen, from the perspective of company accounting, as assisting the perception of profitability. However, this accounting treatment does not necessarily mean that the payments were an affair of capital. First, as a matter of principle, the accounting approach cannot be determinative of the issue: Commissioner of Taxation of the Commonwealth of Australia v James Flood Pty Limited [1953] HCA 65 ; (1953) 88 CLR 492; Arthur Murray (NSW) Pty Limited v Commissioner of Taxation of the Commonwealth of Australia [1965] HCA 58 ; (1965) 114 CLR 314 at 320; and Commissioner of Taxation v Citibank Limited (1993) 44 FCR 434 at 443-44. Secondly, there was no explanation in the evidence or submissions as to whether the accounting treatment might be equivocal about whether the payments reflected fixed or circulating capital. Thirdly, the questions whether or not the payments should be treated in the way they were to match outgoings to revenue (cf Coles Myer 176 CLR at 666), and how one could, or should, account for such a requirement, were not explored, either in the evidence or the submissions. In these circumstances, it is unnecessary, and probably unhelpful, to restructure any analysis around the concepts of fixed and circulating capital, or any like concept: cf. Parsons RW Income Taxation in Australia: Principles of Income, Deductibility and Tax Accounting (Law Book Co 1985) pp 155ff and passim. In this respect, I would simply cite and adopt the approach of Gibbs J (as he then was) in Commercial and General Acceptance Limited 137 CLR at 377: "I think the proper approach is to apply directly the tests suggested in [ Sun Newspapers [1938] HCA 72 ; 61 CLR 337 at 359-363], for the purpose of deciding whether the repayment was an expenditure referable to capital account or to revenue account, rather than to consider whether the moneys borrowed, when received, became circulating capital. The line of distinction between fixed and circulating capital is not precisely drawn, and it is of little advantage to try to answer one question by asking another to which the answer may be uncertain: cf John Smith &amp; Son v Moore [1921] 2 AC 13 at 19-20 per Viscount Haldane, and Crompton v Reynolds and Gibson [1952] 1 All ER 888 at 895 per Lord Reid."
Case: Commissioner of Taxation of the Commonwealth of Australia v South Australian Battery Makers Pty Limited [1978] HCA 32 ; (1978) 140 CLR 645
Outcome: applied
Stopping at this point, it is important to appreciate the content of the approach of Dixon J in Sun Newspapers [1938] HCA 72 ; 61 CLR 337 and Hallstroms Case [1946] HCA 34 ; 72 CLR 634 . It is not, as some of the respondent's submissions in this case seemed to state, that one "looks through" the legal or strict juridicial form of a transaction if "good cause" for so doing is shown. The analysis, that is the ascertainment of the character of the expenditure and what it is calculated to effect, is made from a practical and business point of view, though, of course, as part of that analysis, it is essential to understand the proper legal characterisation of what has occurred: Commissioner of Taxation of the Commonwealth of Australia v South Australian Battery Makers Pty Limited ( 1978) [1978] HCA 32 ; 140 CLR 645 at 657-60 and 661-662.
Case: Commissioner of Taxation v Citibank Limited (1993) 44 FCR 434
Outcome: referred to
I do not think that the accounting treatment undertaken by TAPL assists greatly. The booking of payments as an asset, amortised against the profit and loss account, can be seen, from the perspective of company accounting, as assisting the perception of profitability. However, this accounting treatment does not necessarily mean that the payments were an affair of capital. First, as a matter of principle, the accounting approach cannot be determinative of the issue: Commissioner of Taxation of the Commonwealth of Australia v James Flood Pty Limited [1953] HCA 65 ; (1953) 88 CLR 492; Arthur Murray (NSW) Pty Limited v Commissioner of Taxation of the Commonwealth of Australia [1965] HCA 58 ; (1965) 114 CLR 314 at 320; and Commissioner of Taxation v Citibank Limited (1993) 44 FCR 434 at 443-44. Secondly, there was no explanation in the evidence or submissions as to whether the accounting treatment might be equivocal about whether the payments reflected fixed or circulating capital. Thirdly, the questions whether or not the payments should be treated in the way they were to match outgoings to revenue (cf Coles Myer 176 CLR at 666), and how one could, or should, account for such a requirement, were not explored, either in the evidence or the submissions. In these circumstances, it is unnecessary, and probably unhelpful, to restructure any analysis around the concepts of fixed and circulating capital, or any like concept: cf. Parsons RW Income Taxation in Australia: Principles of Income, Deductibility and Tax Accounting (Law Book Co 1985) pp 155ff and passim. In this respect, I would simply cite and adopt the approach of Gibbs J (as he then was) in Commercial and General Acceptance Limited 137 CLR at 377: "I think the proper approach is to apply directly the tests suggested in [ Sun Newspapers [1938] HCA 72 ; 61 CLR 337 at 359-363], for the purpose of deciding whether the repayment was an expenditure referable to capital account or to revenue account, rather than to consider whether the moneys borrowed, when received, became circulating capital. The line of distinction between fixed and circulating capital is not precisely drawn, and it is of little advantage to try to answer one question by asking another to which the answer may be uncertain: cf John Smith &amp; Son v Moore [1921] 2 AC 13 at 19-20 per Viscount Haldane, and Crompton v Reynolds and Gibson [1952] 1 All ER 888 at 895 per Lord Reid."
Case: Commissioner of Taxation v Melbourne Citylink Limited [2006] HCA 35
Outcome: referred to
The character of the expenditure and the character of the advantage sought by the making of the expenditure is the chief, if not critical, factor in determining the character of what was paid: GP International Pipecoaters Pty Ltd v Commissioner of Taxation of the Commonwealth of Australia [1990] HCA 25 ; (1990) 170 CLR 124 at 137; Mount Isa Mines Limited v Commissioner of Taxation of the Commonwealth of Australia [1992] HCA 62 ; (1992) 176 CLR 141 at 147-149; Commissioner of Taxation of the Commonwealth of Australia v Melbourne Citylink Limited [2006] HCA 35 at [1] , [3], [76], [77] and [148]; and BP Australia 112 CLR at 394 and 398.