mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Engler v Commissioner of Taxation (No 2) (2003) 52 ATR 642
Outcome: cited
I do not think that the decision in S157 throws any doubt on the particular principles to be applied to the provisions of the Act as enunciated by the High Court in Richard Walter . That is, to successfully challenge an assessment, one of the Hickman provisos must be established. That is the view taken in other decisions of this Court: Engler v Commissioner of Taxation (No 2) (2003) 52 ATR 642 at [44] per French J; Deputy Commissioner of Taxation v Warrick (No 2) (2004) 56 ATR 371 at [77]-[86] per French J. In any event, even if there was reason to think the High Court might not follow Richard Walter , until that Court overrules the decision I am bound to follow it. I might add that the principles stated in Richard Walter have been applied by this Court on a number of occasions: see Briglia v Commissioner of Taxation (2000) 44 ATR 166; Australia and New Zealand Banking Group Limited v Commissioner of Taxation [2003] FCA 1410 ; (2003) 137 FCR 1 where Kenny J refers to the relevant authorities
Case: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125
Outcome: applied
It is not necessary for me to consider the extent, if any, to which this section relaxes the well-established test enunciated in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 because I have reached the conclusion, by a reference to that test, that this proceeding must be dismissed. In my opinion, no reasonable cause of action is disclosed in the proceeding. 6 To date, the action has proceeded on affidavits (O 4 r 6). On the hearing of the respondent's application I received affidavits filed and served on behalf of the applicant and affidavits filed and served on behalf of the respondent. I have treated the statements made by the applicant in his affidavits in a similar way to allegations in a statement of claim. In other words, on this application I have taken them to be correct. I have not attempted to resolve any disputed issues of fact, and the respondent did not suggest that it was appropriate that I do that. 7 I start by summarising the key allegations made by the applicant as set out in two affidavits of Mr Pantelis Charitopoulos, who is a director of the applicant. He was appointed to that position on 18 November 2005. The other directors of the applicant have been directors for a number of years. They are Mr George Charitopoulos and Ms Rosa Charitopoulos. I will refer to them as Mr Charitopoulos' parents.
Case: Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476
Outcome: considered
The applicant submitted that the High Court adopted a line of reasoning in Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476 (' S157 ') which suggests a different approach will now be taken to privative clauses or the like than that taken in Richard Walter . In particular, the applicant submitted that the decision in S157 meant a breach of the rules of procedural fairness may not be protected by a privative clause or the like. In S157 , the Court held that the privative clause in the Migration Act did not prevent judicial review of decisions which involved jurisdictional error. 47 I do not think that the decision in S157 throws any doubt on the particular principles to be applied to the provisions of the Act as enunciated by the High Court in Richard Walter . That is, to successfully challenge an assessment, one of the Hickman provisos must be established. That is the view taken in other decisions of this Court: Engler v Commissioner of Taxation (No 2) (2003) 52 ATR 642 at [44] per French J; Deputy Commissioner of Taxation v Warrick (No 2) (2004) 56 ATR 371 at [77]-[86] per French J. In any event, even if there was reason to think the High Court might not follow Richard Walter , until that Court overrules the decision I am bound to follow it. I might add that the principles stated in Richard Walter have been applied by this Court on a number of occasions: see Briglia v Commissioner of Taxation (2000) 44 ATR 166; Australia and New Zealand Banking Group Limited v Commissioner of Taxation [2003] FCA 1410 ; (2003) 137 FCR 1 where Kenny J refers to the relevant authorities
Case: Bank of Australasia v Hall [1907] HCA 78 ; (1907) 4 CLR 1514
Outcome: applied
cash flow test is not simply an assessment of the bankrupt's debts due and cash available to pay them on one day fixed in time, but involves a forward looking assessment of the bankrupt's ability to pay his debts as and when they fall due in the not distant future. Debts are not simply "debts 'then' payable, but...debts 'as they become due' &#8212; a phrase which looks to the future" (Griffiths CJ in Bank of Australasia v Hall [1907] HCA 78 ; (1907) 4 CLR 1514 at 1527). The identification of the bankrupt's contingent and prospective liabilities as at 10 April 2002 and the extent to which they may be considered as part of his debts, at that time, is a crucial matter for determination. The weight of authority suggests that contingent or prospective liabilities may be included as part of a person's debts provided that there is a real likelihood of them being established.
Case: Re Saebar; Official Receiver v Saebar (1971) 18 FLR 317
Outcome: followed
Re Saebar; Official Receiver v Saebar (1971) 18 FLR 317 , Hoare J was concerned with the predecessor version of s 120. In that form, the exception currently found in s 120(3)(b) was found in s 120(2)(a). The exception provided that the transfer would not be void if the party claiming under the transfer could prove "that the settlor was, at the time of making the settlement, able to pay all his debts without the aid of the property comprised in the settlement". As in the current Act, "debt" was defined to include a liability. In that case, the prospective liability at issue was a liability to pay damages for a personal injury, where judgment had not yet been entered. The question before Hoare J was whether a liability extended to contingent and prospective liabilities. His Honour held that a prospective liability should be taken into account in determining "all of the debts" of the settlor if, considering the whole of the circumstances, there is a real likelihood of the prospective liability becoming, in due course, an actual liability. According to Hoare J, prospective liabilities may be ignored if they are "purely speculative and without any real likelihood of being established" (at 322). It should be noted that the test for insolvency at that time was a cash flow test which is the same test required by the current Act and the Corporations Act . Justice Einfeld in Re Finney; Official Trustee in Bankruptcy v Finney (1996) 35 ATR 259 endorsed the decision in Re Cao and also relied on the decisions in Re Saebar and Re Hyams in holding that contingent and prospective liabilities are relevant debts for the exercise of determining solvency pursuant to s 120 of the Act. At 270, Einfeld J said, "[i]t is clear law that a prospective liability for a debt should only be disregarded if it is purely speculative and without any real likelihood of being imposed". In White Constructions (ACT) Pty Ltd (In Liq) v White [2004] NSWSC 71 ; (2004) 49 ACSR 220 , McDougall J distinguished the circumstances of the case before him from those of both Re Saebar and Re Hyams . White Constructions concerned the solvency of a company for the purposes of the Corporations Act and relying on the definition of solvency in s 95A of that Act. At [317], McDougall J said: The decisions in Saebar and Hyams , and the decisions discussed in those cases, recognise that an unestablished (and unquantified) liability may be required to be taken into account for the purposes of the particular exercise propounded by the legislation. They do not show that a claim for unliquidated damages is a debt, let alone a debt that is due and payable. I therefore do not think that the decisions are of direct relevance to the issue of insolvency as it has been framed. I am persuaded, having regard to the above analysis, that the proper view of the authorities on this question is that the principles enunciated in the early 1970s in Re Saebar and Re Hyams are still good law and should be applied, as they were in Re Finney . What debts, including contingent liabilities, did John Turner have?
Case: Re Hyams; Official Reciever v Hyams (1971) 19 FLR 232
Outcome: followed
Re Hyams; Official Reciever v Hyams (1971) 19 FLR 232 , Gibbs J similarly held that when determining the debts of a settlor for the purposes of s 94(1) of the Bankruptcy Act 1924 (Cth), contingent liabilities should be considered if there was a reasonable possibility that the settlor would have had to meet them at the time. That case dealt with a contingent liability arising from a guarantee and as such it was a liability that could be easily quantified. In any event, Gibbs J did not limit his relevant observations to cases so quantifiable. Justice Einfeld in Re Finney; Official Trustee in Bankruptcy v Finney (1996) 35 ATR 259 endorsed the decision in Re Cao and also relied on the decisions in Re Saebar and Re Hyams in holding that contingent and prospective liabilities are relevant debts for the exercise of determining solvency pursuant to s 120 of the Act. At 270, Einfeld J said, "[i]t is clear law that a prospective liability for a debt should only be disregarded if it is purely speculative and without any real likelihood of being imposed". In White Constructions (ACT) Pty Ltd (In Liq) v White [2004] NSWSC 71 ; (2004) 49 ACSR 220 , McDougall J distinguished the circumstances of the case before him from those of both Re Saebar and Re Hyams . White Constructions concerned the solvency of a company for the purposes of the Corporations Act and relying on the definition of solvency in s 95A of that Act. At [317], McDougall J said: The decisions in Saebar and Hyams , and the decisions discussed in those cases, recognise that an unestablished (and unquantified) liability may be required to be taken into account for the purposes of the particular exercise propounded by the legislation. They do not show that a claim for unliquidated damages is a debt, let alone a debt that is due and payable. I therefore do not think that the decisions are of direct relevance to the issue of insolvency as it has been framed. I am persuaded, having regard to the above analysis, that the proper view of the authorities on this question is that the principles enunciated in the early 1970s in Re Saebar and Re Hyams are still good law and should be applied, as they were in Re Finney . What debts, including contingent liabilities, did John Turner have?
Case: Re Cao, ex parte Dixon v Cao [1994] FCA 536
Outcome: followed
Davies' judgment in Re Cao, ex parte Dixon v Cao [1994] FCA 536 provides an interesting analysis of the case law dealing with the inclusion of contingent liabilities in the assessment of insolvency for the purposes of s 120 of the Act. His Honour relied on this extract by Cotton LJ in Re Ridler; Ridler v Ridler (1882) 22 Ch.D. 74 at 82: Then as to the point that the settler was not indebted, but only subject to a liability which might never become a debt. A man is not at liberty to take a sanguine view, but is bound to act upon a reasonable view of what is likely to happen. After discussing what his Honour called a "clear line of authorities", his Honour concluded that, "[i]n a determination of the issue whether the settler can pay 'all his debts', it is necessary to take account of contingent liabilities and, if necessary, to make a valuation" (at 6 7). Justice Einfeld in Re Finney; Official Trustee in Bankruptcy v Finney (1996) 35 ATR 259 endorsed the decision in Re Cao and also relied on the decisions in Re Saebar and Re Hyams in holding that contingent and prospective liabilities are relevant debts for the exercise of determining solvency pursuant to s 120 of the Act. At 270, Einfeld J said, "[i]t is clear law that a prospective liability for a debt should only be disregarded if it is purely speculative and without any real likelihood of being imposed".
Case: Re Ridler; Ridler v Ridler (1882) 22 Ch.D. 74
Outcome: cited
Davies' judgment in Re Cao, ex parte Dixon v Cao [1994] FCA 536 provides an interesting analysis of the case law dealing with the inclusion of contingent liabilities in the assessment of insolvency for the purposes of s 120 of the Act. His Honour relied on this extract by Cotton LJ in Re Ridler; Ridler v Ridler (1882) 22 Ch.D. 74 at 82: Then as to the point that the settler was not indebted, but only subject to a liability which might never become a debt. A man is not at liberty to take a sanguine view, but is bound to act upon a reasonable view of what is likely to happen. After discussing what his Honour called a "clear line of authorities", his Honour concluded that, "[i]n a determination of the issue whether the settler can pay 'all his debts', it is necessary to take account of contingent liabilities and, if necessary, to make a valuation" (at 6 7).
Case: Re Finney; Official Trustee in Bankruptcy v Finney (1996) 35 ATR 259
Outcome: followed
Einfeld in Re Finney; Official Trustee in Bankruptcy v Finney (1996) 35 ATR 259 endorsed the decision in Re Cao and also relied on the decisions in Re Saebar and Re Hyams in holding that contingent and prospective liabilities are relevant debts for the exercise of determining solvency pursuant to s 120 of the Act. At 270, Einfeld J said, "[i]t is clear law that a prospective liability for a debt should only be disregarded if it is purely speculative and without any real likelihood of being imposed". I am persuaded, having regard to the above analysis, that the proper view of the authorities on this question is that the principles enunciated in the early 1970s in Re Saebar and Re Hyams are still good law and should be applied, as they were in Re Finney . What debts, including contingent liabilities, did John Turner have?
Case: White Constructions (ACT) Pty Ltd (In Liq) v White [2004] NSWSC 71 ; (2004) 49 ACSR 220
Outcome: distinguished
White Constructions (ACT) Pty Ltd (In Liq) v White [2004] NSWSC 71 ; (2004) 49 ACSR 220 , McDougall J distinguished the circumstances of the case before him from those of both Re Saebar and Re Hyams . White Constructions concerned the solvency of a company for the purposes of the Corporations Act and relying on the definition of solvency in s 95A of that Act. At [317], McDougall J said: The decisions in Saebar and Hyams , and the decisions discussed in those cases, recognise that an unestablished (and unquantified) liability may be required to be taken into account for the purposes of the particular exercise propounded by the legislation. They do not show that a claim for unliquidated damages is a debt, let alone a debt that is due and payable. I therefore do not think that the decisions are of direct relevance to the issue of insolvency as it has been framed.
Case: Box Valley Pty Ltd v Kidd [2006] NSWCA 26
Outcome: distinguished
respondents rely on Box Valley Pty Ltd v Kidd [2006] NSWCA 26 as an answer to the authorities reviewed above. That judgment dealt with whether a contingent liability arising from a default clause in a forward sales contract before a default notice has been given constitutes a debt for the purposes of s 95A of the Corporations Act . The New South Wales Court of Appeal determined that it did not because it was an unliquidated claim for damages that was not yet quantified. At [14], Bryson JA said: "The word 'debt' is used in s 95A of the Corporations Act without any supporting definition. An entitlement to claim damages for breach of a contractual obligation to sell and deliver goods is not a debt within the ordinary meaning of that word." Section 95A of the Corporations Act defines solvency and insolvency in the same terms as ss 5(2) and (3) of the Act. In contrast to the Act, the Corporations Act does not define debt to include liability.
Case: Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Outcome: cited
Minister submits that a Tribunal is not required to make the case for an applicant before it, it is for the applicant to make their submissions: see Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [187] and Re Ruddock (in his capacity as Minister for Immigration and Multicultural Affairs) and Another; Ex parte APPLICANT S154/2002 [2003] HCA 60 ; (2003) 201 ALR 437 at [57] . This is undoubtedly correct. However, the inquiry in question would not make the appellant's case for him. Rather, it would seek clarification of the grounds already provided to the delegate, in the circumstance where the delegate's record was wholly unsatisfactory. It is true that the appellant did not reply to the invitation of the Tribunal on these matters. However, the Act, specifically s 359C, envisages the circumstance that no reply is forthcoming and the Tribunal may still need to seek additional information before it should make its decision. This was such a circumstance.
Case: Luu and Another v Renevier (1989) 91 ALR 39
Outcome: cited
Minister for Immigration and Citizenship v Le and Others [2007] FCA 1318 ; (2007) 164 FCR 151 Kenny J at [63] observed: The concept of vitiating unreasonableness has been extended to the manner in which a decision was made. Thus, a failure by a decision-maker to obtain important information on a critical issue, which the decision-maker knows or ought reasonably to know is readily available, may be characterised as so unreasonable that no reasonable decision-maker would proceeded [sic] to make the decision without making the enquiry: see Prasad 6 FCR at 169-170 per Wilcox J; Videto v Minister for Immigration and Ethnic Affairs [1985] FCA 326 ; (1985) 8 FCR 167 at 178 per Toohey J ( Videto ); Luu v Renevier (1989) 91 ALR 39 at 47-50 per Davies, Wilcox and Pincus JJ ( Luu v Renevier ); Detsongjarus v Minister for Immigration, Local Government and Ethnic Affairs [1990] FCA 364 ; (1990) 21 ALD 139 at 143 per Pincus J ( Detsongjarus ); Rahman [2000] FCA 1277 at [30] per French J; Tickner v Bropho [1993] FCA 208 ; (1993) 40 FCR 183 at 197-198 per Black CJ; Ahamed v Minister for Immigration and Multicultural Affairs [2000] FCA 1325 at [12] per French J; Yang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 258 ; (2003) 132 FCR 571 at 579 per Ryan and Finkelstein JJ ( Yang ). This proposition is also discussed in other cases, such as Yao-Jing v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275 at 288 per Foster J and Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1995) 183 CLR 273 at 289-90 per Mason CJ and Deane J and 321 per McHugh J. In Luu and Another v Renevier (1989) 91 ALR 39 at 50 the Full Court observed: But, equally, one may be able to say that a decision is unreasonably made where, to the knowledge of the decision-maker, there is readily available to him or her other factual material, likely to be of critical importance in relation to a central issue for determination, and which has not been obtained.
Case: Minister for Immigration and Citizenship v SZMOK and Others [2009] FCAFC 83 ; (2009) 257 ALR 427
Outcome: referred to
appellant acknowledges that Minister for Immigration and Multicultural Affairs v Eschetu [1999] HCA 21 ; (1999) 197 CLR 611 and Minister for Immigration and Citizenship v SZMOK and Others [2009] FCAFC 83 ; (2009) 257 ALR 427 make clear that s 353 and s 357A(3) of the Act are not a source of rights for an applicant, but comprise only ' facultative ' ( Eschetu at [49], [77], [108]-[109], [158] and [179]) or ' exhortative ' ( SZMOK at [13]-[18]) provisions. The appellant submits, however, that while the provisions might not give rise to positive rights for an applicant before the Tribunal, they must be given some meaning, and they must govern the exercise of discretion of the Tribunal. On the basis of this submission the appellant points out that the Tribunal did not explain why the appellant was not contacted by means such as email or telephone. Following from similar considerations outlined in other grounds of appeal, the appellant submits that there was an obligation on the Tribunal to make such further inquiries. The appellant's counsel acknowledges that the issues raised for consideration by the Amended Notice of Appeal were not raised in the hearing before the Federal Magistrate in the precise form currently argued. However, the appellant submits that since the delivery of judgment by the Federal Magistrate, the High Court of Australia has delivered its decisions in SZMOK and in SZKTI which were on 2 July 2009 and on 26 August 2009 respectively, each of which the appellant submits are pertinent to the issues raised by the appeal. In regards to the first factor, the Court considers that the legal arguments have a reasonable prospect of success. The explanation for the failure to raise the arguments below, that being recent High Court authority, is sufficient. The Court accepts that the decisions of SZMOK and SZKTI are highly relevant for the purposes of the appellant's arguments. The Court considers that there is no inconvenience to it in allowing the appellant's arguments, given that it was open to the Court to hear arguments in favour of granting leave and, if granted, then to proceed into a consideration of the new grounds of appeal in the hearing of the proceedings. As to the fourth factor referred to in NAJT , obviously much is at stake for the appellant. An unsuccessful appeal will see his visa cancelled and his deportation to Myanmar. Indeed, one could imagine few more significant consequences for an individual in a hearing before the Federal Court.
Case: Minister for Immigration and Multicultural Affairs v Eschetu [1999] HCA 21 ; (1999) 197 CLR 611
Outcome: referred to
appellant acknowledges that Minister for Immigration and Multicultural Affairs v Eschetu [1999] HCA 21 ; (1999) 197 CLR 611 and Minister for Immigration and Citizenship v SZMOK and Others [2009] FCAFC 83 ; (2009) 257 ALR 427 make clear that s 353 and s 357A(3) of the Act are not a source of rights for an applicant, but comprise only ' facultative ' ( Eschetu at [49], [77], [108]-[109], [158] and [179]) or ' exhortative ' ( SZMOK at [13]-[18]) provisions. The appellant submits, however, that while the provisions might not give rise to positive rights for an applicant before the Tribunal, they must be given some meaning, and they must govern the exercise of discretion of the Tribunal. On the basis of this submission the appellant points out that the Tribunal did not explain why the appellant was not contacted by means such as email or telephone. Following from similar considerations outlined in other grounds of appeal, the appellant submits that there was an obligation on the Tribunal to make such further inquiries.
Case: Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476
Outcome: referred to
is not enough that the Tribunal makes an error, that error must be a jurisdictional error if the decision is to be quashed: see Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 at [83]. As outlined above, two alternative grounds of jurisdictional error would appear to be Wednesbury unreasonableness or a constructive failure to exercise jurisdiction in failing to fulfil the role of the Tribunal, that is, to review.