case_text: See also Federal Commissioner of Taxation v James Flood Pty Ltd [1953] HCA 65 ; (1953) 88 CLR 492 at 506-507. 63 If the creditors were entitled to call for repayment by Nommack (No 75) of their advances, it was entitled to indemnity out of the trust assets in the same amounts. The first question, then, is whether the creditors were so entitled. It is convenient to focus on the position of Media Portfolio. According to Mr Arnold, the arrangement between Nommack (No 75) and Media Portfolio was that on resale, the borrowed funds would be repaid with interest and any profit divided equally between two companies. However Mr Arnold did not see any relevant documentation. Indeed, it seems that there was no documentation until after it became apparent that the project would fail. See par 8 of Mr Robinson's affidavit. Mr Arnold seems to have understood that the loan was from a company in the Rothwells group, from which group Messrs Theeman and Adler had previously borrowed. Mr Creais understood that Media Portfolio was not part of the Rothwells group. 64 Mr Arnold's knowledge of the transactions seemed, at some points, to be based on the assumption that it was funded in the same way as had been previous transactions. Clearly, however, it differed from earlier transactions in that it was a second transaction using Nommack (No 75) and the Sydney trust. According to Mr Arnold, Messrs Theeman and Adler had previously used each trustee company and trust for only one transaction. If Media Portfolio was not part of the Rothwells group, that was also a departure from the previous practice. At other points, Mr Arnold's knowledge seemed to be derived primarily from statements made to him by Mr Theeman. The evidence was received under s 63 of the Evidence Act 1995 (Cth). I am unpersuaded as to its reliability or that Mr Arnold had any specific knowledge of the terms upon which Media Portfolio advanced the relevant funds.


case_outcome: followed

case_text: Assuming, contrary to my finding, that there was a loss in the 1988 or 1989 tax years, and accepting that by some time prior to December 1994, it was improbable that the trust debts, upon which the loss was based, would ever be called up, it is necessary to determine the tax consequences. The Commissioner submits that I should apply by analogy the decision of Hill J in Warner Music Australia Pty Ltd v Commissioner of Taxation (1996) 70 FCR 197. In that case the taxpayer was, in November 1985, served with two sales tax assessments for the periods from 1 January 1982 to 31 May 1985 and from 1 February 1982 until 31 May 1982. The assessments were in the amounts of $599,087.72 and $564,544.69, together with additional tax in each case. The taxpayer objected to the assessments and sought an extension of time in which to pay. The extension was disallowed, and the decision to disallow challenged pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the "ADJR Act"). The Commissioner sought to recover the debt in the Supreme Court of New South Wales. The proceedings under the ADJR Act were resolved by consent orders in 1987. The dispute between the parties was ultimately settled in 1991. The Commissioner agreed to accept $650,000 in full satisfaction of the taxpayer's liability under the two assessments, waiving all rights to recover the amounts initially assessed, without admitting the correctness of the taxpayer's arguments. The taxpayer then claimed the total amounts assessed, excluding the additional tax, as income tax deductions for the year ended 30 November 1985. The Commissioner allowed the claim. The unpaid liability for sales tax had not previously appeared in the taxpayer's accounts, but it had been noted in the directors' report, with an indication that there had been an objection, and that in the opinion of the directors no amount was payable. In subsequent years similar notes appeared. The Commissioner sought to include that part of each assessment which he had foregone as income received by the taxpayer in the 1991 tax year. 80 In June 1987 two further sales tax assessments were issued for the periods 1 June 1984 to 30 June 1985. One was for $4,197,209.20 with additional tax. The other was for the amount of $87,210 with additional tax. The amounts assessed were not paid. An extension of time was sought. The Commissioner refused the application, and an application was made pursuant to the ADJR Act. The taxpayer lodged objections against both assessments. The objections were overruled. The taxpayer appealed, in respect of the larger assessment to this Court, and in respect of the smaller, to the Administrative Appeals Tribunal. The proceedings concerning the refusal of the extension of time were settled upon the taxpayer agreeing to pay $1 million to the Commissioner who agreed not to commence recovery proceedings with respect to the balance until the proceedings had been determined. The proceedings in this Court were determined in favour of the taxpayer, as were the proceedings in the Administrative Appeals Tribunal. The Commissioner refunded the amount of $1 million to the taxpayer. The taxpayer claimed income tax deductions for the 1987 year in the amounts of the two assessments. The claims were allowed. The taxpayer returned the amount of the refund as assessable income. The Commissioner assessed that amount to income tax. 81 Expert accounting evidence was led concerning the proper accounting treatment of the disputed sales tax assessments. In order to understand the reasons given by Hill J, it is necessary to know something about that evidence. 82 One accounting witness said that once a sales tax assessment had been issued and become payable, liability should be recognized in the balance sheet of the taxpayer, whether or not the assessment is challenged. The witness then considered whether the assessment should be an "expense" item in the profit and loss account, and whether there should be a corresponding "receivable" item in the balance sheet, representing the contingent right to have the assessment expunged in the event of a successful objection and appeal. Hill J said at 202: It is, no doubt, obvious that the question whether a receivable should have been recognised in the balance sheet involved a question of judgment, depending upon factors such as the likelihood of success in contesting the assessment. Also relevant, no doubt, would be matters such as materiality and prudence in the preparation of the accounts. If (the taxpayer) had had a high expectation of success for its objection, in (the accountant's) view this would have justified recognition of a receivable in an amount equal to the liability. In such a case it would, no doubt, be wrong to recognize the liability as an expense in the profit and loss account.' 83 The same accountant said that in the event of forgiveness or waiver of the liability, the initial entry recording the liability should be reversed and any corresponding asset written back. 84 Another accounting witness said that in a relevant United States standard, the definition of liability had, as the key issue, 'whether management believed that payment of the amount of the liability was probable, either at the time of the original assessment or subsequent thereto.' Of this proposition, Hill J said at 203: 'It is clear from his evidence that there could, at least, be occasions, in his view, where there could be an offsetting asset which, if the view was taken that the whole of the assessment was capable of being overturned on appeal, could be equal in amount to the amount of the liability. ... In other words, if a taxpayer owed the Commissioner a sum of money and the taxpayer believed that it would be wholly successful on appeal so that there was a receivable in an amount equal to the amount of the assessment, the two amounts could be netted off. ...' 85 The Commissioner advanced the proposition that: '... the Court should recognise a general principle of taxation law that the assessable income of any taxpayer should include the gain or benefit derived by that taxpayer by the reduction or extinction of a liability in respect of which a deduction had been allowed under the Income Tax Assessment Act 1936 (Cth) ... in a previous year.' 113 Either of two approaches might be appropriate for present purposes. The first is that adopted by Hill J in Warner Music . His Honour there treated forgiveness of a debt as a gain which, if of a revenue nature, should be treated as income. If that approach were adopted in the present case, it would presumably be necessary for the Commissioner, if he still may, to re-assess the taxable income of the trust in one or more of the years prior to 1995 to reflect such gain. That gain would then go in reduction of the accumulated losses. The result would be that by December 1994, and probably by 30 June 1994, the accumulated losses would have ceased to exist. 114 The second approach, which I favour, would be to recognize that the trust debts and accumulated losses were over-valued in the accounts of the trust as at December 1994, and as at 30 June 1994 (after the right of indemnity had allegedly been released by Nommack (No 75). By that time, at the latest, they were worth nothing and should have been taken out of the accounts. That was so whether one treated the release by Nommack (No 75) as being effective or relied upon the history of the matter. It was factually incorrect to assert that the trust had suffered any loss as a result of the Elizabeth Street project, notwithstanding the position as it may have appeared in 1988 or as Mr Arnold saw it in 1994. To adopt the language of the accountants in Warner Music , management's belief as to the probability of the company having to pay the relevant debts proved to be unduly pessimistic. Such an approach is, in my view, more attractive than is any attempt to apply the Warner Music approach to the present case. 115 The Commissioner submitted that the trust debts may, in any event, have been, at relevant times, statute-barred. The submission was not developed in detail. The debts may have been incurred in New South Wales where, as I understand it, there are both procedural and substantive bars after expiry of the limitation period. It was suggested that the creditor was in Western Australia or Victoria. For procedural purposes, it may be that Queensland law should be applied. This "choice of law" question was not addressed. In any event, since 1990, the debts have been consistently acknowledged in the books of the trust. 116 The Commissioner also submitted that the Sydney trust had ceased to exist at some time prior to 1994, by virtue of there being no property subject to its terms. It is not sufficient for the Commissioner to assert this fact and leave it to the taxpayers to disprove the assertion. Given the virtually indisputable facts which demonstrate that the trust was established and had property, one would readily infer that it continued to exist in the absence of evidence to the contrary. It is likely that the settled fund of one dollar was lost, however a debt of $1,700 remained due by Nommack (No 41). Whilst it may have been written off at some time since 1994, I cannot infer that it had been extinguished prior to that date. It may not have been worth much, but it may have had some value. Secondly, the trust's books of account are still in existence. They are trust property. Thirdly, any beneficiaries may have some right of recourse against Nommack (No 75) as trustee, arising out of the Elizabeth Street project. It is not every day that a trustee, acting properly, loses such a substantial amount so quickly and with such apparent ease. I am not persuaded that the trust has ever been without assets. I am also not persuaded that any changes of trustee or of beneficiaries terminated the trust or effected a resettlement. Such changes were contemplated by the trust deed.


case_outcome: discussed

case_text: Hill J considered that such a proposition was inconsistent with the earlier decision of the Full Court in Commissioner of Taxation v Rowe (1995) 60 FCR 99, a decision which was subsequently upheld on appeal by the High Court in Commissioner of Taxation v Rowe [1997] HCA 16 ; (1996-1997) 187 CLR 266. In those circumstances Hill J said (at 205): 'The real issue between the parties is whether the release of (the taxpayer) from its liability to pay sales tax constituted income in ordinary concepts by virtue of that release constituting a gain or profit forming part of its business income. There are two steps in the resolution of this issue. The first involves the question whether the amount released involved a gain to (the taxpayer) so as to constitute a profit. The second is whether this profit or gain was on revenue account.'


case_outcome: considered

case_title: Commissioner of Taxation v Rowe [1997] HCA 16 ; (1996-1997) 187 CLR 266


case_text: The taxpayers make three points concerning the operation of s 99B. Firstly, they submit that the section should be read down to recognize the difficulties identified by Hill J in his decision in Traknew Holdings Pty Ltd v Federal Commissioner of Taxation (1991) 21 ATR 1478. His Honour said at 1492: 'The application of s 99B also presents difficulty. Literally, the section is capable of applying in the circumstances of the present case. However, the section was not enacted to render assessable payments or applications to the benefit of discretionary beneficiaries. Such payments or applications were already made assessable income by force of s 97 alone or in combination with s 101 , leaving aside a case where s 98 applies but the presently entitled beneficiary is under a legal disability where the trustee is assessable.' 136 His Honour then went on to consider the history of the enactment of the section, suggesting that it is concerned primarily with the derivation of accumulated income from a source outside of Australia. His Honour did not finally decide whether or not it was appropriate to adopt a narrow construction of s 99B in order to give effect to that perceived parliamentary intention. In view of my conclusions concerning other aspects of the matter, it is not necessary that I address this question. 137 The Commissioner also relies upon Pt IVA of the Act. However the identified schemes (identified in par 7.1 of the Commissioner's amended statement of facts issues and contentions) depend for their efficacy upon the carried-forward losses. I have found that there were no such losses. It may be possible to identify one other scheme, not involving such losses, to which Part IVA could apply. However no such case was advanced by the Commissioner. It would be unfair to the taxpayers were I to proceed in that way. In any event, I understand that the Commissioner relies on Part IVA in the alternative to the case which I have determined in his favour. It is therefore unnecessary for me to consider its operation. It is also unnecessary to consider the operation of Schedule 2F. 138 Whether or not the amended assessments are excessive depends upon the way in which Nommack Nominees' income is distributed. There are four possibly relevant taxpayers: Mr and Mrs Weyers, Nommack Nominees in its own right and Nommack Nominees as trustee of the Sydney trust. The amended assessments affecting the last-mentioned taxpayer are not in issue before me, but my findings lead to certain inferences concerning those assessments. 139 I have concluded that the whole of the distribution by Cherrybrook, nominally to Nommack Nominees as trustee, in the 1995 year ($156,887) was actually to Mr and Mrs Weyers and should have been included in their assessable income. It is quite clear from their evidence that their drawings were used for joint, as well as individual expenses. It would be pointless to speculate about whether Mr or Mrs Weyers would have had greater personal expense. No doubt a large part went to maintaining their children and their household. That income should be treated as having been distributed equally.


case_text: The power to reassess is enlivened by the Commissioner's formation of the relevant opinion. In Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26 ; (1949) 78 CLR 353 at 360, Dixon CJ said, concerning the formation by the Commissioner of an opinion as to a different matter: 'But it is for the commissioner, not for me, to be satisfied of the state of the voting power at the end of the year of income. His decision, it is true is not unexaminable. If he does not address himself to the question which the subsection formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review. Moreover, the fact that he has not made known the reasons why he was not satisfied will not prevent the review of his decision. The conclusion he has reached may, on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some such misconception. If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law.'


case_text: Drummond J said in Kajewski v Federal Commissioner of Taxation (2003) 52 ATR 455 at [107]: 'The applicants have sought to show that the Commissioner erred in forming the opinion that there was an avoidance of tax due to fraud or evasion because the applicants, their advisers and other witnesses had given evidence in this court to the effect that there was no such fraud or evasion, evidence it is said which this Court should accept. In rejecting the applicant's attack on the amended assessments because they are excessive, I have explained why this part of the applicant's case is, on the evidence before me, unfounded. But, in any event, for the reasons given, the issue of fraud and evasion is not at large for this Court. In accordance with Avon Downs and Kolotex [(1975) [1975] HCA 5 ; 132 CLR 535] the Commissioner's opinion that there was fraud or evasion involved must stand unless the applicants can show that the Commissioner, in forming that opinion, fell into the kind of error therein referred to. Only if the applicants can establish, by reference only to the material that was before the Commissioner, that his opinion was vitiated by some such deficiency in the approach he took in reaching that opinion would it be open to this court to form its own view on the question of fraud or evasion. Consistently with their submissions that the appeal to this court is by way of hearing de novo , the applicants did not seek to mount the kind of attack on the Commissioner's determination that there was fraud or evasion involved that must be made before this court can consider that issue for itself. No challenge to the formation by the Commissioner of the opinion necessary to enliven his power under s 170(2) to issue the amended assessments here in question within the principle in Avon Downs was raised by the applicants, let alone made out at trial.'


case_text: This morning, Mr Vernier, with respect to the first complaint, has drawn my attention to a judgment of a Full Court of this Court in Zhang v Royal Australian Chemical Institute Inc [2005] FCAFC 99 ; [2005] 144 FCR 347, particularly, at [25] and [26] in the judgment of Lander J, with whom Spender and Kenny JJ agreed. That decision seems to me to be directly on point and adds further support for what, in any event in this case, appears clearly enough from the statutory provisions, namely that Mr Sapula has no cause of action arising under s 659 of the Workplace Relations Act 1996 (Cth). 6 Neither does he have any cause of action arising under s 661 of that Act. 7 I have been asked by the respondent to give summary judgment for it in the proceedings. I am satisfied, in accordance with s 31A of the Federal Court of Australia Act 1976 (Cth), that the applicant has no reasonable prospect of successfully prosecuting the proceeding and that it is an appropriate case for the matter to be dismissed at this stage. Accordingly, I order that the proceedings be dismissed.


case_outcome: cited

case_text: An applicant for an order under Order 35A does not have to prove its claim by way of evidence. It is sufficient that, on the face of the statement of claim, there is a claim for the relief sought and that it appears that the Court has jurisdiction to grant that relief: see Australian Competition and Consumer Commission v 1Cellnet LLC [2005] FCA 856 at [14] . 10 I am satisfied that each of the respondents is in default by reason of his or its failure to file a defence and to attend directions hearings. The orders sought should be made. 11 On 3 January 2008 the applicant obtained orders from Ryan J against two other respondents (the twentieth and twenty-first respondents) which were conditioned by a requirement that the applicant provide security for an undertaking which it gave to his Honour on that day. It was ordered that $150,000 be paid into and held in the trust account maintained by the applicant's solicitors. On 2 April 2008 the Court made orders by consent that the orders made by Ryan J on 3 January 2008 be vacated. The proceeding, insofar as it involved the applicant and the twentieth and twenty-first respondents was discontinued. In these circumstances the applicant applies to recover the $150,000 which remains in the solicitor's trust account. There being no further requirement for such security to be provided the order should be made. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice TRACEY. Associate: Dated: 10 October 2008 Counsel for the Applicant: Mr E Heerey Solicitor for the Applicant: Middletons Dates of Hearing: 28 August 2008, 1 October 2008, 7 October 2008 Date of Judgment: 10 October 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1514.html


case_outcome: distinguished

case_text: Deputy Commissioner of Taxation v WPS Motorsport Pty Ltd (2009) 71 ACSR 640 (WPS Motorsport), I had occasion to consider a number of authorities bearing upon the question for immediate determination: see paras 20 - 23 of the reasons for judgment in that case, in particular. Since the winding up application was filed, the Deputy Commissioner has determined an objection to the substantive underlying revenue law debt arising from default assessment. It emerges from the affidavit of debt of Mr Gregory Phillips, read on behalf of the Deputy Commissioner, that on or about 19 October 2009 an objection was allowed against Bedroff's income tax assessment for the year ended 30 June 2005. The result of that objection decision was that Bedroff's taxation liability for the 2005 year was reduced by $813,063.22, with related penalty being reduced by $609,797.42. As yet, and perhaps surprisingly, the Deputy Commissioner has not yet taken steps to implement that objection decision by the issuing of an appropriate amended assessment. The evidence, though, is that when that amended assessment is issued, the present indebtedness of the company to the Commonwealth, which has risen a little as a result of the running of general interest charge, will be reduced by $1,422,860.64. On any view, though, what remains is a substantial debt to the Commonwealth.


case_outcome: applied

case_title: Re Octaviar Ltd (formerly MFS Ltd) (2009) 69 ACSR 621

case_text: WPS Motorsport I was faced with a question as to whether, on the evidence to hand, I was satisfied that it was in the interests of the creditors to the company for the winding up application to be adjourned. The evidence put forward on behalf of the company, there to give rise such satisfaction, was, when one analysed it, illusory. That is not this case. While the evidence is certainly of a general nature, it does enliven, in my opinion, sentiments of the kind voiced by Philip McMurdo J in Re Octaviar Ltd (formerly MFS Ltd) (2009) 69 ACSR 121 at [55] (Re Octaviar), in a passage to which I referred in WPS Motorsport Pty Ltd at [21]. In particular, his Honour observed that it will often be the case where not enough is known about what is likely to come from either a liquidation or a deed of company administration regime for a comparison as to relative worth not to be able to be made at an early stage. In Re Octaviar, his Honour referred to a passage from a judgment delivered by Campbell J in Deputy Commission of Taxation v Bradley Keeling Management Pty Ltd [2003] NSWSC 47 ; (2003) 44 ACSR 377 at 380. The passage concerned is in these terms: Ultimately what the court needs to do is to be persuaded. The amount of proof which can result in persuasion, differs with the circumstances in which litigation comes before the court. It is common enough, in applications under s 440A , for an administrator to need to seek an adjournment very soon after his or her appointment, at a time when he or she knows very little about the affairs of the company. In that sort of situation, comparatively little material might be needed to justify a short adjournment. As time goes on, however, and the occasion that there has been for the collecting of evidence increases, so the amount of material which might need to be put before the court before it is persuaded, will increase.


case_title: Deputy Commission of Taxation v Bradley Keeling Management Pty Ltd [2003] NSWSC 47 ; (2003) 44 ACSR 377


case_text: In Rogers v The Queen [1994] HCA 42 ; (1994) 181 CLR 251 at 286, Mason CJ, after remarking that categories of abuse of process remain open, identified three categories within which abuse of process usually falls: (1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute. See also Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 ; (2006) 226 CLR 256.


case_text: It is an abuse of process, in my opinion, to proceed in the way in which the applicant has. It could lead to the very unsatisfactory result that, contrary to the decision of Mansfield J, the decisions would be quashed for reasons not considered by him. That would tend to bring the administration of justice into disrepute: Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 and Brock v Minister for Justice and Customs [2007] FCA 2091 ; (2007) 243 ALR 315.


case_text: The respondents acknowledged that although it is only in the clearest of cases that an application for summary dismissal would succeed: Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 at 91 per Dixon J, in this case, because the applicant's claim failed to disclose a reasonable cause of action, it was appropriate for the Court to exercise its power and dismiss the proceeding. 49 Section 31A of the Federal Court Act was enacted by the legislature with full knowledge of the decisions of the High Court in relation to the summary dismissal of proceedings and, in particular, the decision of the High Court in Dey [1949] HCA 1 ; 78 CLR 62 at 91 and General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125. It may be thought, in those circumstances, that the purpose of the enactment of s 31A was to relax the rigours of the test imposed by the High Court in General Steel Industries [1964] HCA 69 ; 112 CLR 125 as to the necessary circumstances in which a proceeding may be struck out summarily: Jewiss v Deputy Commissioner of Taxation (2006) 65 ATR 222 and White Industries Australia Ltd v Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298. So much is supported by the Attorney-General's second reading speech on the Migration Litigation Reform Bill 2005 (Cth) which was the legislative vehicle which introduced s 31A. He said: The bill also strengthens the power of the courts to deal with unmeritorious matters, by broadening the grounds on which federal courts can summarily dispose of unsustainable cases. It is appropriate that this provision is of general application. It will be a useful addition to the courts' powers in dealing with any unsustainable case.


case_text: Section 31A of the Federal Court Act was enacted by the legislature with full knowledge of the decisions of the High Court in relation to the summary dismissal of proceedings and, in particular, the decision of the High Court in Dey [1949] HCA 1 ; 78 CLR 62 at 91 and General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125. It may be thought, in those circumstances, that the purpose of the enactment of s 31A was to relax the rigours of the test imposed by the High Court in General Steel Industries [1964] HCA 69 ; 112 CLR 125 as to the necessary circumstances in which a proceeding may be struck out summarily: Jewiss v Deputy Commissioner of Taxation (2006) 65 ATR 222 and White Industries Australia Ltd v Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298. So much is supported by the Attorney-General's second reading speech on the Migration Litigation Reform Bill 2005 (Cth) which was the legislative vehicle which introduced s 31A. He said: The bill also strengthens the power of the courts to deal with unmeritorious matters, by broadening the grounds on which federal courts can summarily dispose of unsustainable cases. It is appropriate that this provision is of general application. It will be a useful addition to the courts' powers in dealing with any unsustainable case.


case_text: In relation to the issue of "offset against bankruptcy proceedings", the respondents submitted that there were no "mutual dealings" between the respondents and the applicants for the purpose of s 86 of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act): Gye v McIntyre [1991] HCA 60 ; (1991) 171 CLR 609 , and that the $2,000,000 claimed in damages by the applicant in this matter is neither a debt presently owed to the applicant by the respondents, nor is it a contingent liability arising out of mutual dealings between them. The respondents also stated that as there is currently no sequestration order made against the applicant, he is not presently a "person who has become a bankrupt" which means s 86 of the Bankruptcy Act cannot operate in relation to him. 43 The respondents argued that the proceeding was vexatious, given the applicant's litigation history in which he has been attempting (unsuccessfully) to establish that, as a result of his service in the Army, he developed a mental disability for which he should be compensated and that this proceeding was yet another attempt by the applicant to re-litigate matters already determined against him on a number of occasions both in this Court and in the AAT. 44 The respondents also contended that as there are no particulars in the application or statement of claim (other than bare allegations) as to how the applicant was discriminated against, that the applicant should be ordered to pay security for costs. They argued that the claim was unmeritorious. The respondents contended that the applicant owns no property and has been unable to pay previous costs orders made against him.


case_title: Jewiss v Deputy Commissioner of Taxation (2006) 65 ATR 222


case_text: In support of the abuse of process ground, the respondents contended "that in making his application ... the predominant purpose of the [a]pplicant [was] not to prosecute the proceeding to a conclusion, but instead to use it as a means of obtaining an advantage for which it [was] not designed ...": Metall & Rohstoff AG v Donaldson Lufkin [1990] 1 QB 391 at 469. In particular, the respondents submitted that the purpose of the applicant was to delay and/or frustrate the bankruptcy proceedings against the applicant. 41 The respondents submitted that the applicant was seeking to re-litigate issues already decided such that there was a collateral attack on several Full Court decisions. The respondents stated that, in effect, the applicant was seeking to re-agitate issues already the subject of a decision and order of the Full Court. The respondents submitted that there were no facts currently pleaded in the applicant's statement of claim which would support any conclusion that the second respondent actually unlawfully discriminated against the applicant.


case_text: There is no doubt that the issues which are said to arise in this proceeding should have been raised in the proceeding before Mansfield J: Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589 at 598; Wong v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCA 422 ; (2004) 146 FCR 1. No explanation has been given for the failure to raise these issues in that proceeding. In those circumstances, this proceeding is a manifest abuse.


case_title: Rana v Chief of Army [2008] FMCA 518

case_text: The applicant sought judicial review of the two decisions made by the second respondent on 5 April and 28 April 2005 which came before Mansfield J. The grounds of the application were referred to in Mansfield J's reasons as being a breach of natural justice due to the non-provision of reports; an improper exercise of power for having taken into account irrelevant considerations; a failure to account for relevant considerations; unreasonableness and that the decision was made in bad faith; that the decision involved an error of law; and, finally, that there was no evidence to justify the decision. The applicant did not raise discrimination as a ground of review. On 14 September 2005 the applicant's application was dismissed by Mansfield J in Rana v Chief of Army [2005] FCA 1283. Mansfield J referred to the claim that the decision was unreasonable and said that there was no material to support the contention that the decision was made in bad faith. 24 On 12 May 2006 an appeal to the Full Federal Court was also dismissed: Rana v Chief of Army Staff [2006] FCAFC 63 ; (2006) 90 ALD 474. 25 On 30 September 2006 the applicant complained to the Human Rights and Equal Opportunity Commission (HREOC) alleging discrimination on grounds of both race and disability and victimisation. 26 On 5 July 2007 the applicant's complaint was terminated by HREOC pursuant to s 46PH(1)(c) of the HREOC Act on the ground that there was "no, or no sufficient, evidence that the A[ustralian] D[efence] F[orce] or Brigadier Orme discriminated against [the applicant] on the ground of disability or race or victimised [the applicant] ...". 37 On 15 May 2007 the respondents in this matter caused the applicant to be served with a bankruptcy notice claiming the sum of $7,582.86 which represents the first respondent's party/party costs which the applicant was ordered to pay by Mansfield J on 14 September 2005 in the applicant's failed judicial review proceeding. On 17 May 2007 the applicant swore an affidavit and made an application disputing the amount and sought an order that the respondent be restrained from proceeding until such time as the appeal in that matter was finalised and until the Administrative Appeals Tribunal (AAT) determined whether he was entitled to compensation from the respondent which could then be used to set off the bankruptcy claim. 38 On 10 July 2007 the application to have the bankruptcy notice set aside was dismissed by Registrar Christie (with costs to be taxed or agreed). The applicant sought review of that decision. On 22 April 2008 Simpson FM dismissed that application: Rana v Chief of Army [2008] FMCA 518. Notwithstanding the applicant's application to set aside the bankruptcy notice, the first respondent has filed a creditor's petition which was required to be done within six months from the date of bankruptcy. 53 The applicant in these proceedings is seeking to have set aside the decisions made by the second respondent for grounds not advanced in the proceeding before Mansfield J and in the Full Court. It is the same decisions as were under attack before Mansfield J and the Full Court. Those decisions were found by the Full Court not to have been actuated by any bad faith on the part of the decision-maker. 54 Whilst the applicant chose not to argue before the Full Court that the particular of bad faith was discrimination on the ground of his mental illness, nevertheless, the primary judge and the Full Court needed to decide whether or not the decision-maker had reached his decision for any reason of bad faith. The finding has been made and must stand. 60 Moreover, I am satisfied that this proceeding, as the respondents have contended, has been brought for a collateral purpose and thereby an improper purpose: Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509. This proceeding has been brought for the purpose of calling into question Mansfield J's decision and that of the Full Court. It has also been brought for the further improper purpose to obtain the interlocutory relief which is sought in the application so as to prevent the first respondent from proceeding with the creditor's petition in the Federal Magistrates Court. Clearly, in this proceeding, this Court could not make an interlocutory order of the kind sought in the application. The Court in which the bankruptcy proceeding has been brought might make such an order but, as the reasons of Simpson FM show, the Federal Magistrates Court has declined to make such an order: Rana v Chief of Army [2008] FMCA 518.


case_title: Rogers v The Queen [1994] HCA 42 ; (1994) 181 CLR 251


case_title: Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699


case_text: This Court has an implied incidental power to prevent an abuse of its processes. The jurisdiction of a superior court to prevent its processes from an abuse of process was considered by the High Court in Walton v Gardiner [1993] HCA 77 ; (1993) 177 CLR 378. In that case, the High Court was concerned with complaints against three medical practitioners which were laid but not prosecuted in the Medical Tribunal and then re-laid after a Royal Commission had reported adversely on the conduct of the practitioners. On an application to the Court, the Court of Appeal in New South Wales stayed the new complaints on the ground that they were so unfairly and unjustly oppressive as to constitute an abuse of process. 56 Chief Justice Mason, Deane and Dawson JJ said at 392-393: The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail. ... Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it sought to litigate a newer case which has already been disposed of by earlier proceedings. (Footnotes omitted.) 57 The respondents contended that this Court should find that this proceeding is an abuse of process.


case_title: White Industries Australia Ltd v Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298


case_text: Moreover, I am satisfied that this proceeding, as the respondents have contended, has been brought for a collateral purpose and thereby an improper purpose: Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509. This proceeding has been brought for the purpose of calling into question Mansfield J's decision and that of the Full Court. It has also been brought for the further improper purpose to obtain the interlocutory relief which is sought in the application so as to prevent the first respondent from proceeding with the creditor's petition in the Federal Magistrates Court. Clearly, in this proceeding, this Court could not make an interlocutory order of the kind sought in the application. The Court in which the bankruptcy proceeding has been brought might make such an order but, as the reasons of Simpson FM show, the Federal Magistrates Court has declined to make such an order: Rana v Chief of Army [2008] FMCA 518.


case_title: Wong v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCA 422 ; (2004) 146 FCR 1


case_text: critical words of s 31A(1), when applied to the present case, require me to be satisfied that the respondents have "... no reasonable prospect of successfully defending the proceeding ...". The following principles may be extracted from the authorities: (a) The moving party does not have to demonstrate that the defence is hopeless or unarguable; (b) The Court must consider the pleadings and the evidence with a "critical eye" in order to see whether the respondent party has evidence of sufficient quality and weight to be able to succeed at trial ( Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60 ; (2008) 167 FCR 372 at [23] (p 382) (per Finkelstein J)); (c) The respondent party is not obliged to present its whole case in order to defeat the summary judgment applicant but must at least present a sufficient outline of the evidence in order to enable the Court to come to a preliminary view about the merits for the purpose of considering the statutory test in s 31A(1)(b) ( Jefferson Ford Pty Ltd [2008] FCAFC 60 ; 167 FCR 372 at [22] (p 382) (per Finkelstein J)); and (d) The test may require greater scrutiny of the pleadings and evidence in some cases than in others. In my judgment, the words of s 31A(1) compel a flexible approach. The real question in every case is not so much whether there is any issue that could arguably go to trial but rather whether there is any issue that should be permitted to go to trial. This seems to be the approach of Finkelstein J in Jefferson Ford Pty Ltd [2008] FCAFC 60 ; 167 FCR 372 and of Gordon J in the same case (as to which see [123] [134] (pp 406 409)), although Rares J in that case at [73] [74] (p 394) and in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 236 ALR 720 esp at [45] (p 731) favoured a test which is much closer to the older test articulated in authorities decided under Rules of Court expressed in terms different from the language of s 31A(1)). I agree with the helpful summary of the relevant principles given by Gilmour J in Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 where, at [5] and [6] of his Honour's Reasons, his Honour said: Section 31A of the Act Section 31A lowers the bar for obtaining summary judgment: White Industries Australia Ltd v Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298. The second reading speech of the Migration Litigation Reform Bill 2005 which introduced s 31A stated that its purpose was to strengthen "the power of the courts to deal with unmeritorious matters by broadening the grounds on which federal courts can summarily dispose of unsustainable cases": Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 70 IPR 146 at [45] ; Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60 at [124] . Success under s 31A does not require a demonstration that the case is hopeless or bound to fail. The following principles are of general application to an application under s 31A: (a) the Court must be very cautious not to do a party an injustice by summarily dismissing proceedings; (b) the Court ought not dismiss a claim based on a predictive assessment of prospects, where it is possible that if the claim went to trial, it may succeed; (c) in a case where evidence can give colour and content to allegations, and where questions of fact and degree are important, the Court should be more reluctant to dismiss a proceeding on the face of a pleading; (d) it is not Parliament's intention to require the Court to engage in lengthy and elaborate trials on an interlocutory basis for the purposes of determining whether or not a proceeding has no reasonable prospects of success. It may be necessary for the opposing party to provide no more than an outline of evidence, sufficient to show that there is a genuine dispute, to prevent the summary application becoming a trial; (e) if there is a real issue of fact or law to be decided, and the rights of the parties depend upon it, it is obviously appropriate that the matter goes to trial. It cannot be said that where there is a real factual dispute and that factual dispute must be resolved to determine whether the claim succeeds that there is 'no reasonable prospect of success'; (g) it ought not be used to shut out proceedings where, on a proposition of law, there may be room for doubt. On questions of law, an inquiry as to their merit should not be for the purpose of resolving them and also not simply to determine whether the argument is hopeless, but in order to decide if it is sufficiently strong to warrant a trial; (h) evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects; (i) in determining if there are real issues of fact in issue so as to preclude summary judgment the courts must draw all reasonable inferences in favour of the non-moving party. See Genovese v BGC Construction Pty Ltd [2007] FCA 923 at [5] ; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 70 IPR 146 at [42] - [48] ; Hicks v Ruddock [2007] FCA 299 ; (2007) 156 FCR 574 at [13] ; Bond v Barry (2007) 73 IPR 490 at [46]; Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in Liq) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416 at [30] ; Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [21] ; Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited [2008] FCAFC 60.


case_text: agree with the helpful summary of the relevant principles given by Gilmour J in Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 where, at [5] and [6] of his Honour's Reasons, his Honour said: Section 31A of the Act Section 31A lowers the bar for obtaining summary judgment: White Industries Australia Ltd v Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298. The second reading speech of the Migration Litigation Reform Bill 2005 which introduced s 31A stated that its purpose was to strengthen "the power of the courts to deal with unmeritorious matters by broadening the grounds on which federal courts can summarily dispose of unsustainable cases": Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 70 IPR 146 at [45] ; Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60 at [124] . Success under s 31A does not require a demonstration that the case is hopeless or bound to fail. The following principles are of general application to an application under s 31A: (a) the Court must be very cautious not to do a party an injustice by summarily dismissing proceedings; (b) the Court ought not dismiss a claim based on a predictive assessment of prospects, where it is possible that if the claim went to trial, it may succeed; (c) in a case where evidence can give colour and content to allegations, and where questions of fact and degree are important, the Court should be more reluctant to dismiss a proceeding on the face of a pleading; (d) it is not Parliament's intention to require the Court to engage in lengthy and elaborate trials on an interlocutory basis for the purposes of determining whether or not a proceeding has no reasonable prospects of success. It may be necessary for the opposing party to provide no more than an outline of evidence, sufficient to show that there is a genuine dispute, to prevent the summary application becoming a trial; (e) if there is a real issue of fact or law to be decided, and the rights of the parties depend upon it, it is obviously appropriate that the matter goes to trial. It cannot be said that where there is a real factual dispute and that factual dispute must be resolved to determine whether the claim succeeds that there is 'no reasonable prospect of success'; (g) it ought not be used to shut out proceedings where, on a proposition of law, there may be room for doubt. On questions of law, an inquiry as to their merit should not be for the purpose of resolving them and also not simply to determine whether the argument is hopeless, but in order to decide if it is sufficiently strong to warrant a trial; (h) evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects; (i) in determining if there are real issues of fact in issue so as to preclude summary judgment the courts must draw all reasonable inferences in favour of the non-moving party. See Genovese v BGC Construction Pty Ltd [2007] FCA 923 at [5] ; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 70 IPR 146 at [42] - [48] ; Hicks v Ruddock [2007] FCA 299 ; (2007) 156 FCR 574 at [13] ; Bond v Barry (2007) 73 IPR 490 at [46]; Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in Liq) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416 at [30] ; Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [21] ; Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited [2008] FCAFC 60.


case_text: Health World Ltd v Shin-Sun Australia Pty Ltd [2008] FCA 100 ; (2008) 75 IPR 478 , Jacobson J said (at [117] [121] (p 493 494)): Aggrieved person In order for s 88(1) to be enlivened, so as to enable Health World to invoke the grounds of opposition under ss 42 , 59 and 60 , Health World must be an aggrieved person. The expression "an aggrieved person" is to be given a wide interpretation: see In the Matter of Powell's Trade Mark (1893) 10 RPC 195 at 201 (CA UK); (1894) 11 RPC 4 at 7 8 (HL); see also Continental Liqueurs Pty Ltd v G F Heublein & Bro Inc [1960] HCA 37 ; (1960) 103 CLR 422 at 427. An aggrieved person is one who has a real interest in having a trade mark removed from the register, or one who would be appreciably disadvantaged in a legal or practical sense if the trade mark remained on the register: Continental Liqueurs at 427; Ritz Hotel Ltd v Charles of the Ritz Ltd (1988) 15 NSWLR 158 at 193 4 ; 95 FLR 418 at 451; 88 ALR 217 at 254; 12 IPR 417 at 454; Kraft Foods Inc v Gaines Pet Foods Corporation (1996) 65 FCR 104 at 112 13; 136 ALR 68 at 77; 34 IPR 198 at 207. It is not sufficient that an applicant for rectification of the register is in the same trade as the registered owner of the mark; what is required is that the applicant have a desire to use the mark, or be likely to be hampered in some other way by the registration of the mark that the applicant seeks to have expunged: Shanahan at [14.90]. I do not consider that Health World has any genuine desire to use the HEALTH PLUS mark. It is true that Health World has filed an application No 1121282 for the series trade mark HEALTH PLUS including a number of variations. That application was filed on 28 June 2006, approximately 6 months after Health World commenced the rectification proceeding, and 3 days after it commenced the Health World non-use proceeding. Applying the test explained by Jacobson J, Anying Auburn appears to me at the moment to be an aggrieved person within the meaning of s 88(1) of the Trade Marks Act . Andrew Chen may also be such a person, as may An Ying NZ. I am not prepared to hold for the purposes of the applicants' summary judgment application that none of the respondents is an aggrieved person within the meaning of s 88(1) of the Trade Marks Act . In my opinion, there is every reason to think that, at the conclusion of a trial, each of Anying Auburn, Andrew Chen and probably An Ying NZ will be held to be aggrieved persons within the meaning of that section. That being so, it seems to me that the respondents have some prospect of having the Registered Trade Mark cancelled pursuant to s 88 by reason of the operation of s 58 (Harry Wang not being the true owner), s 62(b) (registration procured upon the basis of false representations), s 62A (application for registration made in bad faith) and s 88(2)(e) (entry made as a result of false suggestion or misrepresentation). It is apparent from the brief summary of the respondents' case at which I have given at [17] [40] above, that there is material before me at the moment which suggests that Harry Wang applied for and procured the registration of the Registered Trade Mark in circumstances where he well understood that the owner of that mark was either An Ying NZ or Andrew Chen and that he did so in breach of duties owed to them or one or other of them and in breach of duties owed to An Ying Melbourne.


case_title: James North (Aust) Pty Ltd v Blundstone Pty Ltd (1978) 48 AOJP 2419 , (1978) 1b IPR 596

case_text: the respondents challenge Harry Wang's entitlement to be and to remain the registered proprietor of the Registered Trade Mark. As I have already mentioned in [52] and [53] above, the gateway to that challenge is s 88(1) and s 88(2)(a) of the Trade Marks Act . In order to bring themselves within that section, the respondents, or one or more of them, must be an aggrieved person within the meaning of that expression as used in s 88. The respondents seemed to suggest that the owner at common law of the Anying mark was An Ying NZ although, at times, they seemed to be submitting that the owner was either An Ying NZ or Andrew Chen personally. An Ying NZ is not a party to the proceedings at the present time. The argument at trial, no doubt, will be that Andrew Chen is an aggrieved person within the meaning of s 88(1) as is Anying Auburn. This argument will focus on Andrew Chen's involvement in the creation of the Anying mark and its use in New Zealand and arguably in Australia for some years prior to February 2006 and contentions on the part of Anying Auburn that, because it is using the Anying mark currently and has done so for almost two years, Anying Auburn itself is an aggrieved person within the meaning of s 88(1) (see Radio & Records Inc v Dahlke (2005) 67 IPR 187). A person who is not the true owner of a trade mark may yet be aggrieved by the false claim to ownership of another ( James North (Aust) Pty Ltd v Blundstone Pty Ltd (1978) 48 AOJP 2419 at 2423, (1978) 1b IPR 596 at 604).


case_title: Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60 ; (2008) 167 FCR 372


case_title: Radio & Records Inc v Dahlke (2005) 67 IPR 187


case_text: that assumption, I will now consider the questions of whether damages would be an adequate remedy, the balance of convenience and the balance of justice. In Sebel Furniture Ltd v Acoustic & Felts Pty Ltd [2009] FCA 6 ; (2009) 80 IPR 244 at [25] [31] (pp 250 251), I explained these concepts as follows: The remaining questions identified by Mason ACJ in Castlemaine require Sebel to show that: (a) it will suffer irreparable injury for which damages will not be adequate compensation unless an injunction is granted; and (b) the balance of convenience favours the granting of an injunction. The first of these matters involves an assessment by the court as to whether the claimant would, in all material respects, be in as good a position if he were confined to his damages remedy, as he would be in if an injunction were granted: see the discussion of this aspect in ICF Spry, The principles of equitable remedies: specific performance, injunctions, rectification and equitable damages, 7th ed, Lawbook, Pyrmont, 2007, pp 383 9; 397 9 and 457 62. The second of these matters requires the court to exercise a discretion. In exercising that discretion, the court is required to assess and compare the prejudice and hardship likely to be suffered by the defendant, third persons and the public generally if an injunction is granted, with that which is likely to be suffered by the claimant if no injunction is granted. In determining this question, the court must make an assessment of the likelihood that the final relief (if granted) will adequately compensate the claimant for the continuing breaches which will have occurred between the date of the interlocutory hearing and the date when final relief might be expected to be granted. In order to address the irreparable injury question, the balance of convenience and the balance of justice in the present case, it is necessary to consider the nature and strength of Sebel's case and the circumstances in which the respondent decided to compete with Sebel by importing the Titan chair into Australia and by promoting and selling that chair in this country. It is also necessary to consider and evaluate the impact that the grant or refusal of an injunction will have or is likely to have on third persons and the public generally. In Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1 ; 153 ALR 643 ; 27 ACSR 535 ; [1998] HCA 30 at [65] and [66], Brennan CJ and McHugh, Gummow, Kirby and Hayne JJ, in a joint judgment, expressly adopted a passage from Spry, 1997, pp 402 3, which may be summarised as follows: (a) In assessing the balance of convenience in an interlocutory injunction application, the interests of the public and third persons are relevant and have more or less weight according to other material circumstances; (b) Whether those interests tend to favour the grant or the refusal of an injunction in any given case depends upon the circumstances of that case; and (c) Hardship visited upon third persons or the public generally by the grant of an interlocutory injunction will rarely be decisive. I propose to apply those principles here. The applicants first learned of the existence and trading activities of Anying Auburn in December 2007. They made their initial demand for a cessation of those activities by email dated 22 January 2008. A more formal demand was sent on 23 January 2008. These demands were answered in detail by the respondents on 27 January 2008 and again on 17 February 2008. The respondents refused to give the undertakings sought by the applicants and asserted their rights to use the Anying mark.


case_title: Anderson v Palmer [2002] NSWSC 192

case_text: Under the particular circumstances of this case, notwithstanding the principles that I referred to in Deputy Commissioner of Taxation, in the matter of Northview Developments Pty Limited (in liq) (ACN 092 804 254) v Northview Developments Pty Limited (in liq) (ACN 092 804 254) [2005] FCA 1825 based upon the decision of Barrett J in Anderson v Palmer [2002] NSWSC 192 , I propose to make the orders sought.


case_text: With that in mind, the matter was adjourned to enable consideration to be given to a cure for that. I have now received written undertakings along the lines of those accepted by Barrett J in Brolrik Pty Ltd v Sambah Holdings Pty Ltd [2001] NSWSC 1171 ; (2001) 40 ACSR 361 particularly at [49]. The effect of those undertakings to the Court are to ensure that what were described as the subordinated liabilities will be in truth subordinated to the claim of any unsecured creditor.


case_title: Deputy Commissioner of Taxation, in the matter of Northview Developments Pty Limited (in liq) (ACN 092 804 254) v Northview Developments Pty Limited (in liq) (ACN 092 804 254) [2005] FCA 1825


case_text: T2 reminded itself of the need when assessing credibility to be sensitive to the difficulties often faced by asylum seekers. It said that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. It referred to various authorities, including Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 794 ; (1999) 93 FCR 220 , which held that where a Tribunal makes an adverse finding in relation to a material claim, but cannot make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true. 19 T2 noted the delegate's view that the appellant had been generally forthright at his initial interview and that the answers he gave to questions had been consistent with information contained in his written application. T2 further noted that T1 had found it unnecessary to determine whether the appellant was in fact homosexual but had rejected his claims for other reasons. T2 went on to conclude that the appellant was not, and never had been, homosexual, relying upon what it regarded as the implausibility of a gay activist leading a "reclusive" life in Australia, at least in terms of his contact with Sydney's gay community. It therefore rejected his account of past mistreatment in the Ukraine. For that reason, T2 affirmed the delegate's decision. 20 On 5 May 2006 the Federal Magistrates Court, by consent, set aside T2's decision. It once again remitted the matter to be reheard and determined according to law. Once again, the reason for the Minister's consent is not apparent.


case_text: Underlying the Minister's submission is a misconception. It is assumed that factual errors, leading to a finding that an applicant is not a witness of truth, cannot give rise to jurisdictional error. That is not the case. As has been repeatedly stated, there are two varieties of factual error. The first, taking into account an irrelevant fact, or failing to take into account a relevant fact, is an error in reasoning and can give rise to a successful application for judicial review: Craig v The State of South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 179 and Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 351. So too is arriving at a conclusion that is unreasonable in the Wednesbury sense. The second, namely giving too much, or too little, weight to particular evidence does not provide a ground of judicial review. Decisions on questions of fact of that kind are committed to merits review tribunals, such as the Tribunal.


case_title: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323


case_title: Attorney-General for the State of New South Wales v Quin [1990] HCA 21 ; (1990) 170 CLR 1

case_text: It is clear that "the merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone": Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 at 36 per Brennan J. However, the process is not simply one of classification and there are problems at the margin. 66 I accept that at common law want of logic is not synonymous with error of law. I also accept that in general, when considering factual matters, the Tribunal may draw inferences that are incorrect and give rise to findings that are wrong without necessarily thereby committing jurisdictional error. However, every case must be considered in the light of its own particular circumstances, and there comes a point at which it may fairly be said that the Tribunal has not discharged its statutory function.


case_text: The decision of the High Court in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77 ; (2005) 228 CLR 470 provides a useful illustration of the fine lines that sometimes have to be drawn. In that case, a husband, wife and their daughter applied for protection. The application was refused. On 5 June 1997 they applied to the Tribunal for review. The Tribunal held oral hearings on 6 May 1998 and again on 19 December 2001. However, it did not hand down its decision affirming the delegate's decision until 14 January 2003. The Tribunal said that it did not accept as credible certain claims made, and evidence given by, the applicants. 68 In proceedings for judicial review, the applicants submitted that the delay in determining the review involved a denial of procedural fairness or a failure by the Tribunal to perform its statutory functions. The application was dismissed, as was an appeal to the Full Federal Court. 69 The High Court, by majority (Gleeson CJ, Kirby, Callinan and Heydon JJ, with Gummow and Hayne JJ dissenting) reversed the decision of the Full Federal Court. Gleeson CJ, with Kirby J agreeing, held that the delay created a real and substantial risk that the Tribunal's capacity to assess the applicants' evidence and evaluate their claims was so impaired as to deny them a fair hearing. In a separate judgment, Callinan and Heydon JJ held that procedural unfairness could spring not only from a denial of an opportunity to present a case but also from the denial of an opportunity to consider it. The applicants' demeanour and credibility were relevant to the Tribunal's decision. It could be inferred from the delay that, in the absence of contrary evidence, the Tribunal had deprived itself of its capacity to assess their oral evidence. 83 Speaking generally, therefore, NAIS stands as support for the proposition that lengthy delay, unacknowledged by the Tribunal in its reasons for decision , can give rise to jurisdictional error. This may be because the Tribunal has failed to take into account a matter that it was obliged to consider: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24. Alternatively, it may be that the Tribunal has denied the applicant a fair hearing, and thereby denied him procedural fairness. 84 The Minister submitted that NAIS could be distinguished from the present case. NAIS concerned delay and its effect upon the capacity of the Tribunal to assess demeanour. The present case also involved delay but not in the way that this issue arose in NAIS . 86 The Minister did not specifically challenge the proposition that the decision in NAIS established that delay could, in some circumstances, give rise to a denial of procedural fairness. Nor did he necessarily accept that proposition. He submitted, however, that the particular circumstances of this case were far removed from those in NAIS . There the Tribunal had made demeanour-based findings against an appellant in circumstances in which four and a half years had elapsed between the observation of the demeanour and the making of the findings. In the present case, the differences between the accounts given by the appellant over time relied upon by T3 had never featured in the reasoning of either T1 or T2. In other words, the Minister submitted, it could not logically be said that delay had had any impact upon the memory of the appellant or upon his ability to give evidence. Rather, it appeared that the delay had had an "improving effect" upon his memory. It was for that reason that T3 found that he had in fact fabricated his claims. 87 Further, the Minister submitted, as the Federal Magistrate found, T3 was well aware of the chronology of the evidence given by the appellant, including the number of times, the dates, the successful applications for judicial review, and the content of what he had previously said. That justified his Honour's finding that T3 had "implicitly" taken all relevant matters into account and, more particularly, all matters that it was obliged to take into account. The Minister contended that the appellant's submission amounted to no more than an attack upon the merits of T3's decision. 88 I accept the Minister's submission that NAIS is not directly in point. However, the principles underlying the majority view seem to me to be relevant, by analogy, to the particular circumstances of this case. 89 As previously indicated, the appellant first gave a detailed account of his past history in the Ukraine as far back as 2001. Some of the events that he described were relatively recent at that stage. However, through no fault of his own, he was obliged over the next four years to recall repeatedly the details of events that must have become more difficult to remember with the passage of time. 90 In my view, T3 was obliged to take that aspect of delay into account when considering any possible inconsistencies between the various statements that he made regarding these events. 98 However, when one adds to the mix the fact that none of the inconsistencies identified were properly analysed, several seemed to have misstated the appellant's earlier position, and some involved summaries taken out of context, the entire process appears to have gone badly wrong. To use the language of Gummow J in NAIS , the Tribunal did not give "proper, genuine and realistic" consideration to the appellant's case. He was not afforded the hearing to which the law entitled him. 99 In my view, the Federal Magistrate erred in dismissing the appellant's complaints by treating the Tribunal as having "implicitly" taken into account matters that I frankly doubt it ever considered. 100 It follows that the appeal must be allowed. The orders of the Federal Magistrates Court must be set aside. There will be orders in the nature of certiorari and mandamus, which will have the effect of quashing the decision given by T3 and remitting the matter to a fourth Tribunal to be dealt with according to law. I certify that the preceding one hundred (100) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg . Associate: Dated: 19 June 2008 Counsel for the Appellant: Mr J. Young Solicitor for the Appellant: Simon Diab & Associates Counsel for the First Respondent: Mr J. Smith Solicitor for the First Appellant: Clayton Utz Date of Hearing: 23 May 2008 Date of Judgment: 19 June 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/913.html


case_title: Abebe v The Commonwealth of Australia [2004] HCA 32 ; (1999) 197 CLR 510

case_text: The Minister noted that the appellant sought to rely upon Abebe v Commonwealth of Australia [2004] HCA 32 ; (1999) 197 CLR 510 as support for the proposition that T3 was obliged to consider the so-called delay that occurred in this case before making its finding on credit: However, the Minister submitted, Abebe did not support the appellant's proposition. In Abebe , Gummow and Hayne JJ, in referring to the potential for refugee applicants to embroider their claims, nevertheless stated that the significance of such embroidery was a matter for the Tribunal in assessing the merits of the case.


case_text: Speaking generally, therefore, NAIS stands as support for the proposition that lengthy delay, unacknowledged by the Tribunal in its reasons for decision , can give rise to jurisdictional error. This may be because the Tribunal has failed to take into account a matter that it was obliged to consider: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24. Alternatively, it may be that the Tribunal has denied the applicant a fair hearing, and thereby denied him procedural fairness.


case_title: Hadid v Redpath (2001) 35 MVR 152

case_text: An analogous point, in the context of a negligence action, was made by Heydon JA, as his Honour then was, in Hadid v Redpath (2001) 35 MVR 152, where he said at [34]: "... [N]o favourable assumptions could be made, and it was up to the trial judge to put beyond question any suggestion that he or she had lost an understanding of the issues. Something should be said about how the possible effects of delay on the judicial process have been overcome. Some explanation should be given as to how the trial judge had recorded or recaptured impressions formed of witnesses at the time they testified. A judge might, for example, say 'I have a perfect recollection of all the characters in the trial' or 'I have contemporaneous notes of my impressions' ... [T]he trial judge made no statements of the kind just indicated, and no assumption in her favour that she had retained any relevant impressions could be made." [Emphasis added.] 95 I accept that the Tribunal's task in assessing credibility is often a difficult one. Having regard to the divergent views previously expressed about this appellant's credibility, the present case was no exception. T3 had to take particular care to ensure that it did not overlook the combined effect of delay, and the disadvantage to the appellant of having to repeat a detailed account of past mistreatment, when assessing the overall consistency of his account. 96 Both T1 and T2, as well as the delegate, seemed to have warned themselves appropriately of the need for appropriate caution when considering refugee claimants in unusual circumstances. T3 did nothing of the kind. Rather it undertook what seems to have been a detailed analysis of everything the appellant had previously said regarding his treatment in the Ukraine. It ultimately found five instances of supposed inconsistency. It extrapolated from these, together with one instance of a claim regarded as implausible, that the appellant was to be disbelieved in virtually everything he said. 97 Had the inconsistencies that T3 identified been both real and substantial, one might well understand how it arrived at its conclusion. Even then, it would have been highly desirable for T3 to have stated expressly that it had taken into account the dangers associated with drawing sweeping conclusions from what on any view was a mere handful of discrepancies.


case_text: recently the High Court in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26 ; (1981) 147 CLR 297 considered the risks in imputing meaning to a legislative provision, which meaning is not apparent on the face of the provision. As Gibbs CJ said (at 304-305): It is an elementary and fundamental principle that the object of the court, in interpreting a statute, "is to see what is the intention expressed by the words used": River Wear Commissioners v. Adamson (1877) 2 App Cas 743 , at p 763. It is only by considering the meaning of the words used by the legislature that the court can ascertain its intention. And it is not unduly pedantic to begin with the assumption that words mean what they say: cf. Cody v. J. H. Nelson Pty. Ltd . [1947] HCA 17 ; (1947) 74 CLR 629 , at p 648. Of course, no part of a statute can be considered in isolation from its context - the whole must be considered. If, when the section in question is read as part of the whole instrument, its meaning is clear and unambiguous, generally speaking "nothing remains but to give effect to the generally speaking "nothing remains but to give effect to the unqualified, words": Metropolitan Gas Co. v. Federated Gas Employees' Industrial Union [1925] HCA 5 ; (1925) 35 CLR 449 , at p 455 There are cases where the result of giving words their ordinary meaning may be so irrational that the court is forced to the conclusion that the draftsman has made a mistake, and the canons of construction are not so rigid as to prevent a realistic solution in such a case: see per Lord Reid in Connaught Fur Trimmings Ltd. v. Cramas Properties Ltd . [1965] 1 WLR 892 , at p 899; (1965) 2 ALL ER 382 , at p 386. Examples of that sort of case may be found in Maxwell on the Interpretation of Statutes , 12th ed., (1969), at p. 228 et seq., and Craies on Statute Law, 7th ed., (1971), at p. 520 et seq. However, if the language of a statutory provision is clear and unambiguous, and is consistent and harmonious with the other provisions of the enactment, and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning, even if it leads to a result that may seem inconvenient or unjust. To say this is not to insist on too literal an interpretation, or to deny that the court should seek the real intention of the legislature. The danger that lies in departing from the ordinary meaning of unambiguous provisions is that "it may degrade into mere judicial criticism of the propriety of the acts of the Legislature", as Lord Moulton said in Vacher & Sons Ltd. v. London Society of Compositors [1912] UKHL 3 ; (1913) AC 107 , at p 130; it may lead judges to put their own ideas of justice or social policy in place of the words of the statute. On the other hand, if two constructions are open, the court will obviously prefer that which will avoid what it considers to be inconvenience or injustice. Since language, read in its context, very often proves to be ambiguous, this last mentioned rule is one that not infrequently falls to be applied.


case_text: while I note the submission of the second respondent concerning to the possibility of a reconsideration decision whereby the accreditation period of a residential care facility is varied upward or downward by a single day, I am not persuaded that the interpretation of s 7.1 should be resolved by an apprehension of extreme examples and distorting possibilities (cf Singh v Commonwealth [2004] HCA 43 ; (2004) 222 CLR 322 at [155] , Forge v ASIC [2006] HCA 44 ; (2006) 229 ALR 223 at [46] , New South Wales v Commonwealth [2006] HCA 52 ; (2006) 231 ALR 1 at [188] ). Conclusion


case_title: New South Wales v Commonwealth [2006] HCA 52 ; (2006) 231 ALR 1


case_text: R v Industrial Court (S.A.); ex parte Mount Gunson Mines Pty Ltd (1982) 2 I.R 336 at 340, after considering The King (Conway) v Justices of The County Tyrone Mitchell J (King CJ and White J agreeing) observed: The dictionary meaning does not accord with that given by Andrews J in that there is no suggestion that the change or alteration must be a change or alteration only in part .


case_title: Singh v Commonwealth [2004] HCA 43 ; (2004) 222 CLR 322


case_title: Stock v. Frank Jones (Tipton) Ltd. (1978) 1 WLR 231

case_text: Aickin J observed (at 336-337): In Stock v. Frank Jones (Tipton) Ltd . [1978] 1 WLR 231 ; (1978) 1 All ER 948 , five members of the House of Lords dealt with this question and although their speeches differ in emphasis they were united in declining to read words into the Act there in question. Viscount Dilhorne, with whom Lord Fraser of Tullybelton agreed, said [1978] 1 WLR, at pp 234-235; (1978) 1 All ER, at p 951: It is now fashionable to talk of a purposive construction of a statute, but it has been recognised since the 17th century that it is the task of the judiciary in interpreting an Act to seek to interpret it "according to the intent of them that made it" (Coke 4 Inst. 330). If it were the case that it appeared that an Act might have been better drafted, or that amendment to it might be less productive of anomalies, it is not open to the court to remedy the defect. That must be left to the Legislature. The appellants contend that in view of the anomalies which they say would result from the interpretation the respondent seeks to have placed on the paragraph, to have paragraph 8(2) read as if it said: "who also took part and at the date of the dismissal were taking part in that action". As Stephenson L.J. said in the Court of Appeal, the paragraph does not so provide. "It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do" said Lord Mersey in Thompson v. Goold & Co. (1910) AC 409, at p 420. ". . . we are not entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself" said Lord Loreburn L.C. in Vickers, Sons & Maxim Ltd. v. Evans (1910) AC 444 , at p 445. Lord Simon of Glaisdale agreed with Viscount Dilhorne but added some further observations. After referring to the rule in Heydon's Case [1584] EngR 9 ; (1584) 3 Co Rep 7a , (76 ER 637) his Lordship said [1978] 1 WLR, at p 236; (1978) 1 All ER, at p 953: "The final task of construction is still, as always, to ascertain the meaning of what the draftsman has said, rather than to ascertain what the draftsman meant to say. But if the draftsmanship is correct these should coincide. So if the words are capable of more than one meaning it is a perfectly legitimate intermediate step in construction to choose between potential meanings by various tests (statutory, objective, anomaly, etc.) which throw light on what the draftsman meant to say." At 338-339 Aickin J also endorsed comments of Lord Scarman in Stock v. Frank Jones (Tipton) Ltd . [1978] 1 WLR 231 at 239 where his Lordship said: If the words used by Parliament are plain, there is no room for the "anomalies" test, unless the consequences are so absurd that, without going outside the statute, one can see that Parliament must have made a drafting mistake. If words "have been inadvertently used", it is legitimate for the court to substitute what is apt to avoid the intention of the legislature being defeated: per MacKinnon L.J. in Sutherland Publishing Co. Ltd. v. Caxton Publishing Co. Ltd . [1938] Ch 174 , at p 201 . This is an acceptable exception to the general rule that plain language excludes a consideration of anomalies, i.e. mischievous or absurd consequences. If a study of the statute as a whole leads inexorably to the conclusion that Parliament has erred in its choice of words, e.g. used "and" when "or" was clearly intended, the courts can, and must, eliminate the error by interpretation. But mere "manifest absurdity" is not enough: it must be an error (of commission or omission) which in its context defeats the intention of the Act. Turning now to the terms of item 2 in the table in s 7.1 of the Principles, I consider that the meaning of the words "variation of period for which residential care service is to be accredited" is plain. There is no ambiguity to warrant further exploration in an attempt to identify the intention of Parliament. The intention of Parliament appears clearly in the words used a reconsideration decision is reviewable when the accreditation body varies (either up or down) the period for which a residential care service is to be accredited. A reconsideration decision where the accreditation body simply confirms its original decision in relation to the period of accreditation is not a decision which "varies" that period and it is not reviewable. To read into "variation" a meaning which includes " no variation" strikes me as absurd, and in stark contradiction to the specific language of s 7.1. The second respondent submitted that an interpretation which excludes review of a reconsideration decision which merely confirms the original decision of the applicant is potentially artificial and irrational. However an interpretation the result of which is surprising, even illogical, does not mean that that interpretation is not sound or that Parliament did not intend that outcome.


case_text: fact that "vary" imports the notion of change in some form has also been endorsed by Courts in different contexts. I note, for example, the following comment of Andrews J in The King (Conway) v Justices of The County Tyrone (1906) 2 IrR 164 at 170: The Court of Quarter Sessions, it will be observed, is empowered, on hearing the appeal, to confirm, vary or reverse the order appealed against. I think each of these three words has a separate and appropriate meaning. "Confirm" requires no explanation; "vary" in my opinion, means alter in part , as distinguished from discharging the entire order appealed against , and making a wholly different one; and "reverse", in my opinion, imports more than discharge , and means " changed to the contrary ". (emphasis in original) In R v Industrial Court (S.A.); ex parte Mount Gunson Mines Pty Ltd (1982) 2 I.R 336 at 340, after considering The King (Conway) v Justices of The County Tyrone Mitchell J (King CJ and White J agreeing) observed: The dictionary meaning does not accord with that given by Andrews J in that there is no suggestion that the change or alteration must be a change or alteration only in part .


case_text: is long tradition of Courts assuming that Parliament, through the enactment of legislation, intends what is enacted. As Lord Atkinson said in Vacher & Sons Ltd v London Society of Compositors [1912] UKHL 3 ; [1913] AC 107 at 121-122: If the language of a statute is plain, admitting of only one meaning, the Legislature must be taken to have meant and intended what it has plainly expressed, and whatever it has in clear terms enacted must be enforced though it should lead to absurd or mischievous results. If the language of this sub-section be not controlled by some of the other provisions of the statute, it must, since its language is plain and unambiguous, be enforced, and your Lordships' House sitting judicially is not concerned with the question whether the policy it embodies is wise or unwise, or whether it leads to consequences just or unjust, beneficial or mischievous. More recently the High Court in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26 ; (1981) 147 CLR 297 considered the risks in imputing meaning to a legislative provision, which meaning is not apparent on the face of the provision. As Gibbs CJ said (at 304-305): It is an elementary and fundamental principle that the object of the court, in interpreting a statute, "is to see what is the intention expressed by the words used": River Wear Commissioners v. Adamson (1877) 2 App Cas 743 , at p 763. It is only by considering the meaning of the words used by the legislature that the court can ascertain its intention. And it is not unduly pedantic to begin with the assumption that words mean what they say: cf. Cody v. J. H. Nelson Pty. Ltd . [1947] HCA 17 ; (1947) 74 CLR 629 , at p 648. Of course, no part of a statute can be considered in isolation from its context - the whole must be considered. If, when the section in question is read as part of the whole instrument, its meaning is clear and unambiguous, generally speaking "nothing remains but to give effect to the generally speaking "nothing remains but to give effect to the unqualified, words": Metropolitan Gas Co. v. Federated Gas Employees' Industrial Union [1925] HCA 5 ; (1925) 35 CLR 449 , at p 455 There are cases where the result of giving words their ordinary meaning may be so irrational that the court is forced to the conclusion that the draftsman has made a mistake, and the canons of construction are not so rigid as to prevent a realistic solution in such a case: see per Lord Reid in Connaught Fur Trimmings Ltd. v. Cramas Properties Ltd . [1965] 1 WLR 892 , at p 899; (1965) 2 ALL ER 382 , at p 386. Examples of that sort of case may be found in Maxwell on the Interpretation of Statutes , 12th ed., (1969), at p. 228 et seq., and Craies on Statute Law, 7th ed., (1971), at p. 520 et seq. However, if the language of a statutory provision is clear and unambiguous, and is consistent and harmonious with the other provisions of the enactment, and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning, even if it leads to a result that may seem inconvenient or unjust. To say this is not to insist on too literal an interpretation, or to deny that the court should seek the real intention of the legislature. The danger that lies in departing from the ordinary meaning of unambiguous provisions is that "it may degrade into mere judicial criticism of the propriety of the acts of the Legislature", as Lord Moulton said in Vacher & Sons Ltd. v. London Society of Compositors [1912] UKHL 3 ; (1913) AC 107 , at p 130; it may lead judges to put their own ideas of justice or social policy in place of the words of the statute. On the other hand, if two constructions are open, the court will obviously prefer that which will avoid what it considers to be inconvenience or injustice. Since language, read in its context, very often proves to be ambiguous, this last mentioned rule is one that not infrequently falls to be applied.


case_text: 53 r 3(2)(a), as interpreted by the Full Court in Etheridge 149 FCR at [16], requires a question of law to be stated with precision as a pure question of law. Question (a) in notice of appeal does not do that. It is ambiguous. It does not identify the manner in which the Tribunal failed properly to apply the SoP. The Tribunal may have made an error of fact, of mixed fact and law or of law, in applying the SoP. Cf Australian Telecommunications Corporation v Lambrouglou (1990) 12 AAR 515 at 524, 529; Roper v Repatriation Commission (2008) 108 ALD 16 at [21], [29] and Price Street Professional Centre Pty Ltd v Commissioner of Taxation [2007] FCAFC 154 ; (2007) 97 ALD 593 at [23] . I do not accept the appellant's submission that question (1) at [24] is capable of falling within question (a) in the notice of appeal. Even if it does, that would not assist, because the latter does not comply with s 44(1) and rule 3(2)(a).


case_text: appeal "on a question of law" is narrower than an appeal that merely "involves" a question of law. Where an appeal lies "on a question of law", the subject matter of the appeal is the question of law stated as required by Order 53 r 3(2)(b): Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 at [11] and Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522 at [13] .


case_text: the possible exception of question (b), the other questions in the notice of appeal suffer from the defects affecting questions (a) and (d). Question (c) asks whether the Tribunal failed to consider all the material and evidence before it in reaching its conclusion. That is directed to the Tribunal's fact finding. Question (e) asks whether the Tribunal failed to take into account unidentified "relevant matters". In Commissioner of Taxation v Dixon [2006] FCA 1250 ; (2006) 155 FCR 101 at [19] a question whether the Tribunal failed to take into account one or more relevant considerations was held not to state a question of law on the grounds that it was insufficiently particular, begs the question as indicated in Lambroglou 12 AAR 515 , and refers to a conclusion the court may or may not reach, which needs to be based on a specifically stated question of law. Question (f) asks whether it was "open to" the Tribunal to make a finding. Question (g) asks whether the Tribunal "correctly applied" the definition of disease or injury in s 5D of the Act. I note in passing that s 5D defines what is meant by an injury or disease for the purposes of the provisions dealing with liability for an injury or disease. It does not bear on whether seasickness is a severe illness for the purposes of a factor in the SoP. Question (h) asks whether the appellant's diagnosed disorder "could be accepted" as war caused. That is a hypothetical question. It may be that question (b) whether the Tribunal has given adequate reasons for its decision states a question of law. Cf Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCAFC 137. I need not go into more detail in relation to these other questions in view of the fact that they are not relied on.


case_text: appeal "on a question of law" is narrower than an appeal that merely "involves" a question of law. Where an appeal lies "on a question of law", the subject matter of the appeal is the question of law stated as required by Order 53 r 3(2)(b): Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 at [11] and Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522 at [13] . Section 44(1) of the AAT Act limits the capacity of the Court to review factual findings of the Tribunal. The subject matter of the appeal is, (shorn of the requirement to determine what, if any, entitlement to relief flows from the answer to the question or questions of law), of the same character as the subject matter of a reference of a question of law to the Court under s 45 of the AAT Act: Etheridge 149 FCR at [14]. A mixed question of fact and law is not a question of law within s 44(1). Order 53 r 3(2) requires a question of law to be stated with precision as a pure question of law. It is in the specification of the grounds relied on in support of the orders sought that one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal: Etheridge 149 FCR at [16]. The questions of law said to be raised by the appeal are stated in the notice of appeal as follows: (a) Whether the Tribunal properly applied the provisions of the relevant Statement of Principles concerning Depressive Disorder being instrument number 58 of 1998 ("the SoP"); (b) whether the Tribunal has given any or any adequate reasons for its conclusions in relation to depressive disorder; (c) whether the Tribunal failed to consider all of the material and evidence before it when identifying the factual foundation upon which the Tribunal relied in reaching its decision in relation to depressive disorder; (d) whether it was open to the Tribunal to be satisfied beyond reasonable doubt on the evidence before it that there was no causal connection between the seasickness experienced by the Applicant on operational service and his war service and resultant depression; (e) whether the Tribunal failed to take into account relevant matters when reaching its decision in relation to depressive disorder; (f) whether it was open to the Tribunal to find that the Applicant's seasickness was not war caused; (g) whether the Tribunal correctly applied the definition of disease and/or injury in s 5D of the Act; (h) whether the depressive disorder as diagnosed could be accepted as war caused under the relevant SoP. The appellant contended that the Tribunal's reasons reveal two questions of law: (1) whether, having identified a stressor fitting within the definition of "severe psychosocial stressor" in clause 8 of the SoP the Tribunal was required to determine whether the stressor was related to service by applying s 196B of the Act, and (2) whether the Tribunal was correct to hold that a pre-existing condition can never give rise to a stressor that is related to service within the meaning of s 196B. It was said that these questions "are capable of falling within" questions (a) and (d) in the notice of appeal. Order 53 r 3(2)(a), as interpreted by the Full Court in Etheridge 149 FCR at [16], requires a question of law to be stated with precision as a pure question of law. Question (a) in notice of appeal does not do that. It is ambiguous. It does not identify the manner in which the Tribunal failed properly to apply the SoP. The Tribunal may have made an error of fact, of mixed fact and law or of law, in applying the SoP. Cf Australian Telecommunications Corporation v Lambrouglou (1990) 12 AAR 515 at 524, 529; Roper v Repatriation Commission (2008) 108 ALD 16 at [21], [29] and Price Street Professional Centre Pty Ltd v Commissioner of Taxation [2007] FCAFC 154 ; (2007) 97 ALD 593 at [23] . I do not accept the appellant's submission that question (1) at [24] is capable of falling within question (a) in the notice of appeal. Even if it does, that would not assist, because the latter does not comply with s 44(1) and rule 3(2)(a).


case_title: Commissioner of Taxation v Dixon [2006] FCA 1250 ; (2006) 155 FCR 101


case_text: the event that I might conclude that there had been no compliance with r 3(2)(b), the appellant sought leave to amend the notice of appeal to the Federal Magistrates Court so as to raise the two questions set out at [24]. In Teoh v Minister for Immigration [1994] FCA 1017 ; (1994) 49 FCR 409 the Full Court held that s 28 of the Federal Court of Australia Act and Order 13 r 2(1) enable the Full Court to grant leave to amend a pleading, an application or other originating process. See in particular per Carr J at 428. I see no reason why that would not extend to permitting an amendment to the questions of law in an originating process, in this case the notice of appeal to this Court that, by transfer, was heard by the Magistrate from whom the present appeal comes. See Condell v Commissioner of Taxation [2007] FCAFC 44 at [14] per Gyles J with whom Kenny and Allsop JJ agreed.


case_title: Price Street Professional Centre Pty Ltd v Commissioner of Taxation [2007] FCAFC 154 ; (2007) 97 ALD 593