case_text: In those circumstances, two issues arise on the present application. The first is whether it was open to Mr Pascoe to rely upon the provisions of s 1072C of the Act. I have been taken this afternoon to a number of authorities which deal with the effect of that section. The decision of Campbell J in the Official Trustee in Bankruptcy v Buffier (2005) ACSR 839 seems to me plainly to support the applicability of s 1072C to authorise Mr Pascoe to pass the resolution. Other authorities to the same effect include the decision of Sackville J in Prentice v Cummins [2002] FCA 1165 at [7] ; the decision of Hasluck J in Nilant v RL & KW Nominees Pty Ltd [2007] WASC 105 ; and the decision of Heerey J in Rambaldi; in the matter of Weeden, a bankrupt v Weeden [2008] FCA 1597 at [40] .


case_outcome: followed

case_title: Official Trustee in Bankruptcy v Buffier (2005) ACSR 839


case_outcome: referred to

case_title: Prentice v Cummins [2002] FCA 1165


case_title: Rambaldi; in the matter of Weeden, a bankrupt v Weeden [2008] FCA 1597


case_outcome: cited

case_text: Neither party referred to O 23 r 11 of the Rules for the purposes of this motion. Housewares submits that Bodum's rejection of the first offer of compromise ([12] above) is so unreasonable as to justify indemnity costs. Housewares asserted in correspondence that it would seek indemnity costs from the date of that offer in accordance with Alpine Hardwoods (Aust) Pty Ltd v Hardys Pty Ltd (No 2) (2002) 190 ALR 121. 32 Mere refusal of an offer or a Calderbank offer does not of itself warrant an order for indemnity costs; the offeror needs to show that the conduct of the offeree was unreasonable ( Alpine Hardwoods 190 ALR at [28], [35]; Black v Lipovac (1998) 217 ALR 386 at [217] to [218]). Bodum took the position that Housewares was not a "person aggrieved" in relation to the first and second designs and, for that reason, rejected the offer to release Housewares from any claim for design infringement in circumstances where Bodum would be liable to pay Housewares' costs. While Housewares was entitled to seek to establish that it was so aggrieved, the cross-claim would fail if Housewares had no standing to bring the action. It was not unreasonable for Bodum to argue that Housewares was not a "person aggrieved" in circumstances where no allegation of design infringement had been pleaded. Mere refusal by Bodum of the first offer of compromise does not justify indemnity costs.


case_outcome: applied

case_text: Bodum's submission that Housewares cannot be a "person aggrieved" is not accepted. Those words embrace ' any person having a real interest in having the entry expunged ' and include ' any person who would be or in respect of whom there is a reasonable possibility of his or her being "appreciably disadvantaged in a legal or practical sense" by the entry not being expunged ' ( Assa Abloy Australia Pty Ltd v Australian Lock Company Pty Ltd [2005] FCAFC 246 ; (2005) 147 FCR 126 at [19] ; Ritz Hotel Ltd v Charles of the Ritz Ltd (1988) 15 NSWLR 158 at 193). A ' close and direct connection in both a legal and practical sense between the existence and duration of the designs and potential damage to the appellant ' was sufficient in Assa Abloy , although Heerey and Allsop JJ thought it inappropriate in that case to express a view as to what the limits may be (at [24]).


case_title: Black v Lipovac (1998) 217 ALR 386

case_text: Mere refusal of an offer or a Calderbank offer does not of itself warrant an order for indemnity costs; the offeror needs to show that the conduct of the offeree was unreasonable ( Alpine Hardwoods 190 ALR at [28], [35]; Black v Lipovac (1998) 217 ALR 386 at [217] to [218]). Bodum took the position that Housewares was not a "person aggrieved" in relation to the first and second designs and, for that reason, rejected the offer to release Housewares from any claim for design infringement in circumstances where Bodum would be liable to pay Housewares' costs. While Housewares was entitled to seek to establish that it was so aggrieved, the cross-claim would fail if Housewares had no standing to bring the action. It was not unreasonable for Bodum to argue that Housewares was not a "person aggrieved" in circumstances where no allegation of design infringement had been pleaded. Mere refusal by Bodum of the first offer of compromise does not justify indemnity costs.


case_text: In my view, it was unreasonable for Bodum to issue the media release when the offer to surrender the designs and resolve the cross-claim had been made. The media release sent a mixed message to Housewares. It unreasonably provoked Housewares to protect its position and the position of the retailers of its products. Bodum should pay the costs incurred by Housewares in respect of its cross-claim for rectification of the Register of Designs between the issue of the media release on 10 October 2005 and the "clarification" by Bodum on 28 November 2005 on an indemnity basis ( Hamod v New South Wales (2002) 188 ALR 659 at [20]). 35 That leaves for consideration whether costs are payable on an indemnity basis after 28 November 2005. By then, Housewares was aware that there was no intention on the part of Bodum to allege design infringement. There was, however, still a dispute as to Housewares' entitlement to bring the cross-claim and costs. Bodum had offered surrender of the designs on the condition that the cross-claim for rectification be discontinued and each party pay its own costs; Housewares had offered to discontinue the cross-claim in return for the surrender of the designs on the condition that Bodum pay its costs. The cross-claim for rectification of the Register of Designs was capable of resolution subject to the dispute as to who should be liable for costs. 36 Neither party sought to bring that situation to finality. Neither party approached the Court to finalise the surrender of the designs or the cross-claim and resolve question of costs. Bodum did not approach Housewares or the Court with respect to orders for surrender of the designs. Housewares, knowing of the proposed surrender and the effect on its cross-claim for rectification, did not seek to finalise the matter with Bodum, nor approach the Court for orders as to its cross-claim. That was the time to finalise the status of the cross-claim for rectification and any costs associated with it. Instead, the matter did not progress until after Housewares served a notice to admit facts relevant to the cross-claim and the designs on 23 February 2006. It was entitled to do so because the cross-claim for rectification was still in issue; the designs had not been surrendered. Directions had been made requiring Housewares to prepare its evidence.


case_text: Bodum's submission that Housewares cannot be a "person aggrieved" is not accepted. Those words embrace ' any person having a real interest in having the entry expunged ' and include ' any person who would be or in respect of whom there is a reasonable possibility of his or her being "appreciably disadvantaged in a legal or practical sense" by the entry not being expunged ' ( Assa Abloy Australia Pty Ltd v Australian Lock Company Pty Ltd [2005] FCAFC 246 ; (2005) 147 FCR 126 at [19] ; Ritz Hotel Ltd v Charles of the Ritz Ltd (1988) 15 NSWLR 158 at 193). A ' close and direct connection in both a legal and practical sense between the existence and duration of the designs and potential damage to the appellant ' was sufficient in Assa Abloy , although Heerey and Allsop JJ thought it inappropriate in that case to express a view as to what the limits may be (at [24]). 39 On 24 February 2006, Bodum informed Housewares of its instructions to surrender the designs, with or without agreement from Housewares. That communication was an open letter in respect of each design. The letters stated '[i] f [Housewares] is not willing to consent to the offer to surrender [the designs] , we propose to file a motion seeking the Federal Court of Australia's consent to the surrender and propose to seek costs if your client unreasonably rejects this offer '. It was not unreasonable for Housewares to insist that Bodum pay its costs to date as a condition for its consent. It did so by letter dated 1 March 2006. It was, however, unreasonable for Housewares to continue to incur costs on the cross-claim after being put on notice in an open letter that Bodum had instructed its solicitors to surrender the designs. This is especially so after 1 March 2006, when Bodum ' formally put [Housewares] on notice that it need not take any further steps in these proceedings relating to the [designs]'. Bodum should not be liable to pay the costs incurred by Housewares after the letters dated 24 February 2006. 40 Bodum should pay Housewares' costs of its motion for the Court's consent to the surrender of the designs. Bodum should also pay Housewares' costs of the cross-claim for rectification of the Register of Designs incurred prior to the letters of 24 February 2006. Costs incurred by Housewares between 10 October 2005 and 28 November 2005 are payable on an indemnity basis. Costs are otherwise payable on a party and party basis. Each party is to bear its own costs in relation to the cross-claim for rectification after 24 February 2006. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate: Dated: 6 February 2007 Counsel for the Applicants: D K Catterns QC and S J Goddard Solicitor for the Applicants: Mallesons Stephen Jaques Counsel for the Respondent: W A Rothnie Solicitor for the Respondent: Arnold Bloch Leibler Date of Hearing: 2 May 2006 Date of Judgment: 6 February 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/44.html


case_title: Comcare v Davies [2008] FCA 393

case_text: In this matter on 27 March 2008 reasons for decision were published allowing an appeal from the decision of the Administrative Appeals Tribunal given on 3 October 2007: Comcare v Davies [2008] FCA 393. 2 One of the orders then made was that the decision of the Tribunal was to be set aside. Liberty was reserved for the parties to apply within seven days should one or the other seek to have the orders varied. That liberty was not invoked but the orders as made on 27 March 2008 have not yet been entered. 3 Today, however, an oral application was made in accordance with O 35(7)(1) of the Federal Court Rules 1979 (Cth) to vary Order 3 as made on 27 March 2008. The application is supported by both parties.


case_text: Applicant A v Minister for Immigration & Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225 at 230-1, Brennan CJ said: If a statute transposes the text of a treaty or a provision of a treaty into the statute so as to enact it as part of domestic law, the prima facie legislative intention is that the transposed text should bear the same meaning in the domestic statute as it bears in the treaty [ Koowarta v Bjelke-Petersen [1982] HCA 27 ; (1982) 153 CLR 168 at 265]. To give it that meaning, the rules applicable to the interpretation of treaties must be applied to the transposed text and the rules generally applicable to the interpretation of domestic statutes give way [ Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62 ; (1989) 169 CLR 379 at 413]. The Full Federal Court in McDermott Industries (Aust) Pty Ltd v Commissioner of Taxation [2005] FCAFC 67 ; (2005) 142 FCR 134 at 143 (Hill, Sundberg and Stone JJ) summarised the principles applicable to the construction of DTAs in this way: Double tax treaties are bilateral treaties entered into between two states. As such they are to be interpreted in accordance with the requirements of the Vienna Convention on the Law of Treaties (23 May 1969, entered into force on 22 January 1974) (the Convention) and in particular Art 31 of the Convention. The application of the Convention has been discussed by McHugh J in Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225 and in Thiel v Commissioner of Taxation (Cth) [1990] HCA 37 ; (1990) 171 CLR 338 , the latter case being concerned with the interpretation of the double taxation agreement between Australia and Switzerland. The leading authority in this Court on interpretation of double taxation agreements is [ Commissioner of Taxation v Lamesa Holdings BV (1997) 77 FCR 597]. It is unnecessary here, to set out again what is there said. The following principles can be said to be applicable: Regard should be had to the "four corners of the actual text". The text must be given primacy in the interpretation process. The ordinary meaning of the words used are presumed to be "the authentic representation of the parties' intentions": Applicant A . The courts must, however, in addition to having regard to the text, have regard as well to the context, object and purpose of the treaty provisions. The approach to interpretation involves a holistic approach. International agreements should be interpreted "liberally". Treaties often fail to demonstrate the precision of domestic legislation and should thus not be applied with "taut logical precision".


case_text: purpose of a DTA is to avoid the potential for the imposition of tax by both of the Contracting States on the same income. It is appropriate to say that the Contracting States achieve their objective by "allocating" as between themselves the right to bring to tax a particular item to one Contracting State while the other State agrees to abstain from doing so ( Lamesa at 600, Chong v Commissioner of Taxation [2000] FCA 635 ; (2000) 101 FCR 134 at [24] - [27] ). A DTA does not give a Contracting State power to tax, or oblige it to tax an amount over which it is allocated the right to tax by the DTA. Rather, a DTA avoids the potential for double taxation by It is the Income Tax Act 1986 (Cth) that imposes "income tax". Section 5(1) of that Act provides that income tax is imposed in accordance with that Act and at the relevant rates declared by the Income Tax Rates Act 1986 (Cth). Section 12(1) of the latter Act provides that the rates of tax are those set out in Schedule 7 to that Act. Section 7 of the Income Tax Act 1986 provides, relevantly, that the tax imposed by s 5(1) is levied, and shall be paid, for the financial year commencing on 1 July 1986 and for all subsequent financial years.


case_text: Full Federal Court in McDermott Industries (Aust) Pty Ltd v Commissioner of Taxation [2005] FCAFC 67 ; (2005) 142 FCR 134 at 143 (Hill, Sundberg and Stone JJ) summarised the principles applicable to the construction of DTAs in this way: Double tax treaties are bilateral treaties entered into between two states. As such they are to be interpreted in accordance with the requirements of the Vienna Convention on the Law of Treaties (23 May 1969, entered into force on 22 January 1974) (the Convention) and in particular Art 31 of the Convention. The application of the Convention has been discussed by McHugh J in Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225 and in Thiel v Commissioner of Taxation (Cth) [1990] HCA 37 ; (1990) 171 CLR 338 , the latter case being concerned with the interpretation of the double taxation agreement between Australia and Switzerland. The leading authority in this Court on interpretation of double taxation agreements is [ Commissioner of Taxation v Lamesa Holdings BV (1997) 77 FCR 597]. It is unnecessary here, to set out again what is there said. The following principles can be said to be applicable: Regard should be had to the "four corners of the actual text". The text must be given primacy in the interpretation process. The ordinary meaning of the words used are presumed to be "the authentic representation of the parties' intentions": Applicant A . The courts must, however, in addition to having regard to the text, have regard as well to the context, object and purpose of the treaty provisions. The approach to interpretation involves a holistic approach. International agreements should be interpreted "liberally". Treaties often fail to demonstrate the precision of domestic legislation and should thus not be applied with "taut logical precision". Authority for resort to extraneous materials of the kinds referred to may be found in Thiel at 344 (per Mason CJ, Brennan & Gaudron JJ), 349 (per Dawson J), 357 (per McHugh J); Unisys Corporation Inc v Federal Commissioner of Taxation 2002 ATC 5146 at [44]; and Commissioner of Taxation v Lamesa Holdings BV (1997) 77 FCR 597 ( Lamesa ) at 604.


case_outcome: discussed

case_text: writing what appears at [68]-[80] above, I have become aware that the issue of comity has been the subject of considerable judicial discussion to which the parties did not refer. In Fernando v Commissioner of Police (1995) 36 NSWLR 567 ( Fernando ) the New South Wales Court of Appeal (NSWCA) considered the matter. The question was whether the NSWCA should follow a decision of the Full Court of the Supreme Court of South Australia in R v Franklin (1979) 22 SASR 101 ( Franklin ) on a statutory provision in substantially identical words to those of the relevant New South Wales statute. All three members of that Court thought that the South Australian Full Court's construction of the provision had been wrong. Priestley JA described (at 584) the "rule of comity" as a "sound one for most purposes", such that the NSWCA "usually follows the decisions of courts of like position in other Australian jurisdictions on similar points". Priestley JA said (also at 584) that the reasons favouring the construction of the provision which his Honour thought to be right, were "so strong" that an exception should be made to the "rule of comity". Powell JA was of a similar view, going as far as to describe the South Australian decision as "clearly wrong" (at 593). However, Clarke JA, while also preferring the construction favoured by Priestley JA and Powell JA, considered (at 591) that the question was one on which minds could reasonably differ and that Franklin was not "plainly wrong". Applying as a matter of comity a rule that the NSWCA should follow a decision of another Australian intermediate appellate court on the construction of the substantially identical statutory provision unless "it is convinced that the earlier decision is clearly wrong or that considerations of justice require the court to decline to apply the decision of the other court" (at 589-590), his Honour decided that Franklin should be followed. In R v Dyson (1997) 68 SASR 156 ( Dyson ) the Supreme Court of South Australia Court of Criminal Appeal was specially constituted as a bench of five members to consider the conflict between Franklin and Fernando . Bollen J distinguished Fernando . All other four judges, and Bollen J in the alternative, considered that Franklin was correct and Fernando incorrect.


case_text: do not see the approach taken by the Western Australian Court of Appeal in Mustac to be in conflict with the practice to which Lander J and French J (and I) referred. Clearly, and inevitably, their Honours accepted that an earlier decision of a court of coordinate authority is not required, as a matter of binding judicial precedent, to be followed. Moreover, French J quoted the following passage from the judgment of Burchett J in La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201 at 204: ... the authorities illustrated that [the approach of usually following a decision of another judge as a matter of judicial comity] may be influenced, either towards or away from an acceptance of the earlier decision, by circumstances so various as to be difficult to comprehend within a single concise formulation of principle ... (my emphasis)


case_title: Lamesa Holdings BV v Federal Commissioner of Taxation (1997) 98 ATC 4229

case_text: Lamesa Holdings BV v Federal Commissioner of Taxation (1997) 97 ATC 4229 , which, like the Second Proceeding, concerned the Netherlands Agreement, the primary judge accepted (at 4,237), on the basis of expert evidence, that the supplementary material relevant to construction of the Netherlands Agreement was the 1977 OECD Model Double Taxation Convention on Income and Capital which included as Annex I "Model Convention for the Avoidance of Double Taxation with respect to taxes on Income and Capital" (Model Convention) and as Annex II "Commentaries on the Articles of the Model Convention) (Model Commentary) because they had been "largely formulated and published" before the conclusion of the Netherlands Agreement. Neither party submitted that the Model Convention or the Model Commentary was not able to be taken into account as relevant to the construction of the Netherlands Agreement, and indeed, the Commissioner submitted that the Netherlands Agreement must be construed in light of these documents.


case_text: Full Federal Court in McDermott Industries (Aust) Pty Ltd v Commissioner of Taxation [2005] FCAFC 67 ; (2005) 142 FCR 134 at 143 (Hill, Sundberg and Stone JJ) summarised the principles applicable to the construction of DTAs in this way: Double tax treaties are bilateral treaties entered into between two states. As such they are to be interpreted in accordance with the requirements of the Vienna Convention on the Law of Treaties (23 May 1969, entered into force on 22 January 1974) (the Convention) and in particular Art 31 of the Convention. The application of the Convention has been discussed by McHugh J in Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225 and in Thiel v Commissioner of Taxation (Cth) [1990] HCA 37 ; (1990) 171 CLR 338 , the latter case being concerned with the interpretation of the double taxation agreement between Australia and Switzerland. The leading authority in this Court on interpretation of double taxation agreements is [ Commissioner of Taxation v Lamesa Holdings BV (1997) 77 FCR 597]. It is unnecessary here, to set out again what is there said. The following principles can be said to be applicable: Regard should be had to the "four corners of the actual text". The text must be given primacy in the interpretation process. The ordinary meaning of the words used are presumed to be "the authentic representation of the parties' intentions": Applicant A . The courts must, however, in addition to having regard to the text, have regard as well to the context, object and purpose of the treaty provisions. The approach to interpretation involves a holistic approach. International agreements should be interpreted "liberally". Treaties often fail to demonstrate the precision of domestic legislation and should thus not be applied with "taut logical precision".


case_text: IIIA of the ITAA 1936 (dealing with capital gains) was inserted into that Act by the Income Tax Assessment Amendment (Capital Gains) Act 1986 (Cth) (No 52 of 1986) with effect from 24 June 1986 but operating in respect of assets acquired after 20 September 1985. The result, which is now produced under the ITAA 1997, is to include net capital gains in the assessable (and therefore taxable) income of a taxpayer (currently by s 102- 5 of the ITAA 1997, formerly by s 160ZO of the ITAA 1936). Taxable income is calculated by reducing the assessable income by "deductions" (s 4 - 15 of the ITAA 1997, s 48 of the ITAA 1936 (which used the expression "allowable deductions")). The so-called "capital gains tax" is not a separate tax. The applicants submit, and the Commissioner does not dispute, that if it were, the Income Tax Act 1986 would offend s 55 of the Constitution , which requires that laws imposing taxation deal with one subject matter only: cf Mutual Pools & Staff Pty Ltd v Commissioner of Taxation (Cth) [1992] HCA 4 ; (1992) 173 CLR 450. The Commissioner assessed to tax the net capital gains made by the First Applicant and the Second Applicant under what I will, for convenience, call the " Pt IIIA régime" even though, in fact, it was the ITAA 1997 that applied in the year ended 30 June 2001. As will be already clear, both the UK Agreement and the Netherlands Agreement were entered into before the Pt IIIA régime was introduced.


case_title: R v Dyson (1997) 68 SASR 156

case_text: R v Dyson (1997) 68 SASR 156 ( Dyson ) the Supreme Court of South Australia Court of Criminal Appeal was specially constituted as a bench of five members to consider the conflict between Franklin and Fernando . Bollen J distinguished Fernando . All other four judges, and Bollen J in the alternative, considered that Franklin was correct and Fernando incorrect. The issue of comity as between intermediate appellate courts was again discussed by the NSWCA in Tillman v Attorney-General for the State of New South Wales (2007) 70 NSWLR 448 ( Tillman ). Tillman was decided on 26 November 2007, not longer after Muscat which had been decided on 21 June 2007. The judgments in Tillman do not refer to either Dyson or Muscat .


case_title: R v Franklin (1979) 22 SASR 101


case_text: in Re McKean (unreported, Federal Court of Australia, 16 April 1996), Burchett J pointed out that in the circumstances of a particular case, other considerations may prevail over considerations of comity.


case_text: J decided (at [31]) that the expression "the Australian income tax" in subpara (1)(a) of Art 2 of the Swiss Agreement meant income tax as assessed under the ITAA 1936, and (at [49]) that the expression included tax on net capital gains under the Pt IIIA régime. His Honour referred (at [44]) to several examples of capital gains that were already included in assessable income under the ITAA 1936 when the Swiss Agreement was signed in 1980, as showing that income tax under the ITAA 1936 was not limited to tax on income in accordance with ordinary concepts. His Honour also referred to observations made in Resch v Federal Commissioner of Taxation [1942] HCA 2 ; (1942) 66 CLR 198 ( Resch ) and South Australia v The Commonwealth [1992] HCA 7 ; (1992) 174 CLR 235 ( South Australia v Commonwealth ). In my view it is not to the point that s 26AAA was not introduced into the ITAA 1936 until 1973, and therefore did not form part of that Act when the UK Agreement was signed. Edmonds J referred to s 26AAA only as one of several illustrations of the inclusion of capital gains in assessable income. His Honour's adoption (at [44]) of the examples given in the submissions (noted at [38]) supported a proposition that rested on the reasons for judgment in Resch of Rich J at 210-211 and Dixon J (as Dixon J then was) at 224-225, and the reasons of the majority joint judgment in South Australia v Commonwealth at 251. (I refer to Resch at [94]-[97] below and to South Australia v Commonwealth s at [100] below). Edmonds J stated (at [45]) that Pt IIIA was introduced into the ITAA 1936 as part of the same legislative scheme and history as were referred to by Dixon J in Resch and by the majority in South Australia v Commonwealth . Perhaps the leading authority on the broad nature of the "income" which is the subject of the Commonwealth income tax is Resch . The question in Resch was whether the Income Tax Assessment Act 1922 (ITAA 1922) and the Income Tax Act 1930 infringed s 55 of the Constitution by reason of their dealing with more than one subject of taxation by bringing to charge profits of a capital nature as well as profits in the nature of income according to ordinary concepts. Section 16B of the ITAA 1922 deemed to be assessable income of a company's shareholders, amounts which the liquidators of the company received as the proceeds of the sale by them of the company's assets and which they paid to the shareholders. At 213, Starke J said (at 213): Income is as large a word as can be used to denote a person's receipts ( Re Huggins; Ex parte Huggins [(1882) 51 LJ Ch 935 at p938]); it signifies that which comes in. An "Act to impose a tax upon incomes" is not less general in scope; it must be liberally construed, and include everything which by reasonable understanding might fairly be regarded as income. In South Australia v Commonwealth at 251, Mason CJ, Deane, Toohey and Gaudron JJ, after referring to Dixon J's statement in Resch that the ITAA 1922 did not maintain the distinction between profits of a capital nature and profits in the nature of income in the true sense, observed as follows: "Income" is a generic term which, in the United States, has been regarded as wide enough to include capital gains for purposes of income tax .... Nonetheless, it is correct to say of [the ITAA 1936], as Starke J. said of the Income Tax Assessment Act 1922, that income tax "is not a tax upon everything that comes in whether as income receipt or a capital receipt" [ New Zealand Flax Investments Ltd v Federal Commissioner of Taxation [1938] HCA 60 ; (1938) 61 CLR 179 at 197].


case_text: J decided (at [31]) that the expression "the Australian income tax" in subpara (1)(a) of Art 2 of the Swiss Agreement meant income tax as assessed under the ITAA 1936, and (at [49]) that the expression included tax on net capital gains under the Pt IIIA régime. His Honour referred (at [44]) to several examples of capital gains that were already included in assessable income under the ITAA 1936 when the Swiss Agreement was signed in 1980, as showing that income tax under the ITAA 1936 was not limited to tax on income in accordance with ordinary concepts. His Honour also referred to observations made in Resch v Federal Commissioner of Taxation [1942] HCA 2 ; (1942) 66 CLR 198 ( Resch ) and South Australia v The Commonwealth [1992] HCA 7 ; (1992) 174 CLR 235 ( South Australia v Commonwealth ). In my view it is not to the point that s 26AAA was not introduced into the ITAA 1936 until 1973, and therefore did not form part of that Act when the UK Agreement was signed. Edmonds J referred to s 26AAA only as one of several illustrations of the inclusion of capital gains in assessable income. His Honour's adoption (at [44]) of the examples given in the submissions (noted at [38]) supported a proposition that rested on the reasons for judgment in Resch of Rich J at 210-211 and Dixon J (as Dixon J then was) at 224-225, and the reasons of the majority joint judgment in South Australia v Commonwealth at 251. (I refer to Resch at [94]-[97] below and to South Australia v Commonwealth s at [100] below). Edmonds J stated (at [45]) that Pt IIIA was introduced into the ITAA 1936 as part of the same legislative scheme and history as were referred to by Dixon J in Resch and by the majority in South Australia v Commonwealth . In South Australia v Commonwealth at 251, Mason CJ, Deane, Toohey and Gaudron JJ, after referring to Dixon J's statement in Resch that the ITAA 1922 did not maintain the distinction between profits of a capital nature and profits in the nature of income in the true sense, observed as follows: "Income" is a generic term which, in the United States, has been regarded as wide enough to include capital gains for purposes of income tax .... Nonetheless, it is correct to say of [the ITAA 1936], as Starke J. said of the Income Tax Assessment Act 1922, that income tax "is not a tax upon everything that comes in whether as income receipt or a capital receipt" [ New Zealand Flax Investments Ltd v Federal Commissioner of Taxation [1938] HCA 60 ; (1938) 61 CLR 179 at 197].


case_text: the provisions of the UK Agreement and the Netherlands Agreement form part of the domestic law of Australia (see [17] and [27] above), the character of those Agreements as treaties between Australia and another country attracts the approach to construction applied to international treaties. In Thiel v Commissioner of Taxation (Cth) [1990] HCA 37 ; (1990) 171 CLR 338 at 356 ( Thiel ), McHugh J, citing Shipping Corporation of India Ltd v Gamlen Chemical Co (A/Asia) Pty Ltd [1980] HCA 51 ; (1980) 147 CLR 142 at 159, said that the Swiss Agreement (in Schedule 15 to the Agreements Act and given the force of law in Australia by s 11E of that Act) was to be interpreted in accordance with the rules that are recognised by international lawyers and that are found in the Vienna Convention on the Law of Treaties (Opened for signature 23 May 1969. [1974] ATS 2. Entered into force 27 January 1980.) (Vienna Convention). The Full Federal Court in McDermott Industries (Aust) Pty Ltd v Commissioner of Taxation [2005] FCAFC 67 ; (2005) 142 FCR 134 at 143 (Hill, Sundberg and Stone JJ) summarised the principles applicable to the construction of DTAs in this way: Double tax treaties are bilateral treaties entered into between two states. As such they are to be interpreted in accordance with the requirements of the Vienna Convention on the Law of Treaties (23 May 1969, entered into force on 22 January 1974) (the Convention) and in particular Art 31 of the Convention. The application of the Convention has been discussed by McHugh J in Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225 and in Thiel v Commissioner of Taxation (Cth) [1990] HCA 37 ; (1990) 171 CLR 338 , the latter case being concerned with the interpretation of the double taxation agreement between Australia and Switzerland. The leading authority in this Court on interpretation of double taxation agreements is [ Commissioner of Taxation v Lamesa Holdings BV (1997) 77 FCR 597]. It is unnecessary here, to set out again what is there said. The following principles can be said to be applicable: Regard should be had to the "four corners of the actual text". The text must be given primacy in the interpretation process. The ordinary meaning of the words used are presumed to be "the authentic representation of the parties' intentions": Applicant A . The courts must, however, in addition to having regard to the text, have regard as well to the context, object and purpose of the treaty provisions. The approach to interpretation involves a holistic approach. International agreements should be interpreted "liberally". Treaties often fail to demonstrate the precision of domestic legislation and should thus not be applied with "taut logical precision". Authority for resort to extraneous materials of the kinds referred to may be found in Thiel at 344 (per Mason CJ, Brennan & Gaudron JJ), 349 (per Dawson J), 357 (per McHugh J); Unisys Corporation Inc v Federal Commissioner of Taxation 2002 ATC 5146 at [44]; and Commissioner of Taxation v Lamesa Holdings BV (1997) 77 FCR 597 ( Lamesa ) at 604. In relation to the Commissioner's second argument, I do not think that either the expression "carries on trade or business" in Art 5(1) or the expression "the conduct of a trade or business" in Art 5(7) is to be read so as to require continuing or repeated business activities so as to stamp the word "profits" or "income" in those articles respectively with a revenue character: cf Thiel at 343-345 per Mason CJ, Brennan and Gaudron JJ; 347-352 per Dawson J; 355-361 per McHugh J. The Commissioner's third argument does not persuade me. Paragraph 4 of Art 5 may raise a question as to the interaction of the deductibility provided for in that paragraph, the measurement of net capital gains under the Pt IIIA régime and the general deductibility provisions of the ITAA 1936 and the ITAA 1997, but any complexity involved does not, to my mind, show an intention to confine the operation of Art 5 of the UK Agreement in the manner contended by the Commissioner. The Commissioner's fourth argument is likewise unpersuasive. The circumstance that the three exclusions happen to be items of income according to ordinary concepts does not mean that "income" as used earlier in that paragraph refers only to income according to ordinary concepts.


case_text: issue of comity as between intermediate appellate courts was again discussed by the NSWCA in Tillman v Attorney-General for the State of New South Wales (2007) 70 NSWLR 448 ( Tillman ). Tillman was decided on 26 November 2007, not longer after Muscat which had been decided on 21 June 2007. The judgments in Tillman do not refer to either Dyson or Muscat . In Tillman , Giles and Ipp JJ A, in a joint judgment, declared themselves (at [110]) in favour of following a decision of the Victorian Court of Appeal in TSL v Secretary to the Department of Justice (2006) 14 VR 109 ( TSL ) because it was not "plainly wrong". Mason P took a different approach. The learned President recognised that the Victorian legislation in question was relevantly indistinguishable and was not convinced that the Victorian decision was plainly wrong, yet departed from it in favour of his own firmly preferred different interpretation (at [19]). His Honour appears to have been content to accept the "not plainly wrong" or "not clearly wrong" formulation. He acknowledged (at [25]) that there was "a rule of precedent obliging intermediate appellate courts not to depart from decisions in intermediate appellate courts in another jurisdiction [but only] on the interpretation of (a) Commonwealth legislation or (b) uniform national legislation or (c) the common law of Australia unless convinced of plain error". The statutory provisions before the Victorian and NSWCA in TSL and Tillman respectively were State enactments that were not part of a uniform national scheme. Interestingly, in their joint judgment in Tillman , Giles and Ipp JJ A stated (at [110]): The place now occupied by the Federal Court in the Australian legal system adds to its unity, and to the desirability of consistency in the interpretation of substantially similar non-national legislation. In the light of such a statement, it would be a most unwelcome irony if single judges of this Court did not respect the strong desirability of consistency in their decision making. I note that the applicants did not suggest that I am relieved by considerations of judicial comity of the necessity of embarking on a full consideration of the parties' submissions with a view to arriving independently at my own conclusion, and in my view, I am obliged to do so. The sole issue in dispute is whether Art 5 of the UK Agreement prohibits the taxation in Australia of the capital gain made by the First Applicant. In order for Art 5 to have that effect, the tax that would otherwise be levied on the capital gain must be a tax covered by the UK Agreement according to its Taxes Covered Article, Art 1.


case_text: Tillman , Giles and Ipp JJ A, in a joint judgment, declared themselves (at [110]) in favour of following a decision of the Victorian Court of Appeal in TSL v Secretary to the Department of Justice (2006) 14 VR 109 ( TSL ) because it was not "plainly wrong". Mason P took a different approach. The learned President recognised that the Victorian legislation in question was relevantly indistinguishable and was not convinced that the Victorian decision was plainly wrong, yet departed from it in favour of his own firmly preferred different interpretation (at [19]). His Honour appears to have been content to accept the "not plainly wrong" or "not clearly wrong" formulation. He acknowledged (at [25]) that there was "a rule of precedent obliging intermediate appellate courts not to depart from decisions in intermediate appellate courts in another jurisdiction [but only] on the interpretation of (a) Commonwealth legislation or (b) uniform national legislation or (c) the common law of Australia unless convinced of plain error". The statutory provisions before the Victorian and NSWCA in TSL and Tillman respectively were State enactments that were not part of a uniform national scheme.


case_title: Unisys Corporation Inc v Commissioner of Taxation 2002 ATC 5146

case_text: for resort to extraneous materials of the kinds referred to may be found in Thiel at 344 (per Mason CJ, Brennan & Gaudron JJ), 349 (per Dawson J), 357 (per McHugh J); Unisys Corporation Inc v Federal Commissioner of Taxation 2002 ATC 5146 at [44]; and Commissioner of Taxation v Lamesa Holdings BV (1997) 77 FCR 597 ( Lamesa ) at 604.


case_text: in the recent case of Virgin Holdings SA v Commissioner of Taxation [2008] FCA 1503 ( Virgin Holdings ), a decision of Edmonds J given on 10 October 2008, the issue in each proceeding is whether income tax is not payable on the amount of a capital gain by reason of the operation of a Double Taxation Agreement (DTA). In Virgin Holdings the DTA was that between Australia and Switzerland. In the case of proceeding NSD 1283 of 2006 (the First Proceeding), in which Undershaft (No 1) Ltd (First Applicant) is the applicant, the DTA is between Australia and the United Kingdom of Great Britain and Northern Ireland (UK) (not the current DTA between those countries but an earlier one) (the UK Agreement). In the case of proceeding NSD 1282 of 2006 (the Second Proceeding), in which Undershaft (No 2) BV (Second Applicant) is the applicant, the DTA is between Australia and the Netherlands (the Netherlands Agreement). The full title of the UK Agreement is: Agreement between the Government of the Commonwealth of Australia and the Government of the United Kingdom of Great Britain and Northern Ireland for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income and Capital Gains. The UK Agreement was signed on 7 December 1967. The full title of the Netherlands Agreement is: Agreement between Australia and the Kingdom of the Netherlands for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income. The Netherlands Agreement was signed on 17 March 1976. The UK Agreement was Schedule 1 to the International Tax Agreements Act 1953 (Cth) (Agreements Act). The UK Agreement was replaced in 2003 by a new DTA between Australia and the UK, which is the present Schedule 1 to the Agreements Act. This new UK Agreement is not presently relevant because the capital gain in question was made in the financial year ended 30 June 2001. The Netherlands Agreement is found in Schedule 10 to the Agreements Act. The following legislative chronology will serve to introduce provisions and events of relevance to the proceedings and to the parties' submissions: 2 June 1936 The ITAA 1936 was enacted by the Commonwealth Parliament. Section 25 was the familiar "income according to ordinary concepts" provision. Other receipts were also deemed to form part of a taxpayer's assessable income. For example, s 26(a) provided that the assessable income of a taxpayer also included: "(a) profit arising from the sale by the taxpayer of any property acquired by him for the purpose of profit-making by sale, or from the carrying on or carrying out of any profit-making undertaking or scheme." 29 October 1946 The first DTA between Australia and the UK was signed (the 1947 UK Agreement). It entered into force on 3 June 1947. 11 December 1953 The Agreements Act was enacted. The 1947 UK Agreement became Schedule 1 to the Agreements Act. 7 December 1967 The UK Agreement was signed. It became Schedule 1 to the Agreements Act, in place of the 1947 UK Agreement. 11 December 1973 Section 26AAA was introduced into the ITAA 1936. In general terms it included in the assessable income of a taxpayer any profit arising from the sale of property that the taxpayer purchased after 21 August 1973 and sold before the expiration of the period of 12 months from the date of purchase. 17 March 1976 The Netherlands Agreement was signed. It became Schedule 10 to the Agreements Act. A "First Protocol" to the Agreement was signed on the same day. 28 February 1980 A DTA between Australia and Switzerland was signed (later referred to as the Swiss Agreement). It became Schedule 15 to the Agreements Act. 25 June 1984 The Income Tax Assessment Amendment Act (No 3) 1984 (No 47 of 1984) came into operation. That Act omitted s 26(a) and enacted a similar provision as s 25A(1). 24 June 1986 Part IIIA was introduced into the 1936 Act by Income Tax Assessment Amendment (Capital Gains) Act 1986 (Cth) (No 52 of 1986), having an operation in relation to assets acquired after 20 September 1985. Section 26AAA was prevented from overlapping with the new Pt IIIA by s 160L(3), and s 25A was prevented from overlapping with the new Pt IIIA by s 25A(1A). 14 7" valign="top"> 30 June 1986 A Second Protocol to the Netherlands Agreement was signed. 4 November 1986 The Income Tax Act 1986 came into operation, levying income tax in respect of the 1986-1987 income year and all subsequent years. 4 November 1986 The Income Tax Rates Act 1986 came into operation, with effect for the 1986-1987 income year and subsequent income years. 1 July 1997 The ITAA 1997 commenced operation. 22 June 1998 Part 3 - 1 of the ITAA 1997 commenced operation, with effect for the 1998-1999 income year onwards (see s 102-1 of the Income Tax (Transitional Provisions) Act 1997 ). VIRGIN HOLDINGS COMITY The decision of Edmonds J In Virgin Holdings , Edmonds J considered whether Australia was precluded from taxing a capital gain made by the applicant in that case, a company which was incorporated in, and a resident of, Switzerland, by the Business Profits Article (Art 7) of the DTA between Australia and Switzerland (the Swiss Agreement). The Swiss Agreement was entered into in 1980, was found in Schedule 15 to the Agreements Act, and was given the force of law in Australia by s 11E of that Act. His Honour also briefly addressed an argument that if Art 7 did not apply, then Art 13(3), which denied Australia the right to tax income from the alienation of capital assets in certain circumstances, applied. There is no equivalent to Art 13(3) in either the UK Agreement or the Netherlands Agreement. His Honour commenced by considering whether tax imposed pursuant to the Pt IIIA régime fell within the Taxes Covered Article (Art 2) of the Swiss Agreement. Article 2 provided, relevantly, that the Swiss Agreement applied to "the Australian income tax" (subpara 1(a)), or any "identical or substantially similar tax" (para 2). His Honour considered whether the expression "the Australian income tax" in the Swiss Agreement included tax imposed on a "net capital gain" under the Pt IIIA régime. The expression "the Australian income tax" was not defined in the Swiss Agreement which, in those circumstances, gave it the meaning that it had under Australian law. Edmonds J referred (at [30]) to the definition of "Australian tax" in s 3(1) of the Agreements Act as meaning, relevantly, "income tax imposed as such by an Act". His Honour referred (also at [30]) to s 4(1) of the Agreements Act which provided, relevantly, that the ITAA 1936 was incorporated and to be read as one with the Agreements Act. He observed (also at [30]) that s 6(1) of the ITAA 1936 defined "income tax" or "tax" as meaning "... income tax imposed as such by any Act as assessed under [the ITAA 1936]". The Commissioner in that case had sought to argue that, having regard to the existence of Art 13 of the Swiss Agreement headed "Alienation of Property", Art 7 was concerned only with revenue profits of an enterprise. Edmonds J did not agree, concluding (at [72]) that Art 7(1) of the Swiss Agreement denied Australia the right to tax the capital gain concerned. Relevance of Virgin Holdings to the First Proceeding and the Second Proceeding The Commissioner submits in the First Proceeding that Virgin Holdings is distinguishable, and in both proceedings that I should not consider myself obliged by considerations of comity to follow Virgin Holdings . First, he submits that the terminology of the UK Agreement differs from that of the Swiss Agreement that was before Edmonds J. In support of this submission, the Commissioner refers to the UK Agreement's use of the expression "the Commonwealth income tax" rather than "the Australian income tax" in the Taxes Covered Article. He also refers to differences between the Business Profits Articles of the two Agreements: Art 5 of the UK Agreement and Art 7 of the Swiss Agreement. Article 5 of the UK Agreement uses the expression "industrial or commercial profits" which is defined in para (7) of that Article to mean "income derived by an enterprise from the conduct of a trade or business..." (see [22] above). Article 7 of the Swiss Agreement, on the other hand, uses the expression "profits" which it does not define. In my view, there is no substance in the difference between the expressions "the Commonwealth income tax" and "the Australian income tax". However, the Commissioner's submission in relation to the definition of "industrial or commercial profits" is of more substance. I address the meaning of that expression at [112]ff below. Second, the Commissioner submits that the UK Agreement was entered into 13 years before the Swiss Agreement was entered into, and, in particular, that it was entered into before the Parliament inserted s 26AAA into the ITAA 1936 in 1973 (by s 7 of the Income Tax Assessment Act (No 5) 1973 (No 165 of 1973) with effect from 11 December 1973). In my view it is not to the point that s 26AAA was not introduced into the ITAA 1936 until 1973, and therefore did not form part of that Act when the UK Agreement was signed. Edmonds J referred to s 26AAA only as one of several illustrations of the inclusion of capital gains in assessable income. His Honour's adoption (at [44]) of the examples given in the submissions (noted at [38]) supported a proposition that rested on the reasons for judgment in Resch of Rich J at 210-211 and Dixon J (as Dixon J then was) at 224-225, and the reasons of the majority joint judgment in South Australia v Commonwealth at 251. (I refer to Resch at [94]-[97] below and to South Australia v Commonwealth s at [100] below). Edmonds J stated (at [45]) that Pt IIIA was introduced into the ITAA 1936 as part of the same legislative scheme and history as were referred to by Dixon J in Resch and by the majority in South Australia v Commonwealth . In sum, the unavailability of the s 26AAA example in respect of the UK Agreement does not serve to make Virgin Holdings distinguishable. The Commissioner recognises that, in relation to the Second Proceeding, the precise wording of the Swiss Agreement differs from that of the Netherlands Agreement in various respects, but does not suggest that the provisions of the Swiss Agreement were materially distinguishable from those of the Netherlands Agreement. I turn now to the comity aspect. Judicial comity The notion of judicial comity raises interesting questions. I am not bound to follow Edmonds J in Virgin Holdings , it being a decision of co-ordinate authority. However, the answers to the following questions are not so obvious. In what circumstances, if at all, am I bound to accord influence to his Honour's decision? Am I bound independently to reach my own conclusion? If so, and my conclusion does not accord with that of his Honour, by reference to what principles, if at all, am I at liberty to discard my own conclusion in favour of his Honour's? Before referring to the authorities, I will state my understanding of the role of considerations of judicial comity by reference to the task confronting me. First, I must embark on my own independent consideration of the issues for decision with a view to reaching my own independent conclusion on them. The oath of judicial office requires me to do no less. If my own conclusion, independently reached, is consistent with his Honour's, there is no scope for his decision to influence me beyond "fortifying" me in my conclusion. Second, I must not follow his Honour should I reach the view that his Honour was "clearly" or "plainly" wrong. Third, I may (not must) follow his Honour's (supposedly inconsistent) decision once it is clear that that decision is not "plainly" or "clearly" wrong. Fourth, accepting the strong desirability of certainty and stability in judicial decision-making in the administration of justice, I will in fact follow his Honour's inconsistent decision unless I conclude that it was clearly or plainly wrong, or that for some other reason those same interests of justice demand that I adhere to my own conclusion in preference to his Honour's supposedly erroneous one. While the expression "clearly wrong" and "plainly wrong" may be open to criticism, they usefully remind the later judge of the interests of justice in consistency of decision-making in a system of which the individual judge is but a part. The "choice" to follow an earlier inconsistent decision of co-ordinate authority is, however, as a matter of law, discretionary and depends on the circumstances of a particular case. These will properly include considerations of the length of the period during which the earlier decision has stood, and whether it has been relied upon in the arrangement of human affairs. I turn now to the authorities to which I was referred. Submitting that I should follow Virgin Holdings , the applicants cite Cooper v Commissioner of Taxation [2004] FCA 1063 ; (2004) 139 FCR 205 at [46] - [47] per Lander J and Hicks v Minister for Immigration, Multicultural & Indigenous Affairs [2003] FCA 757 at [76] per French J. In the first case, Lander J followed a statement by me in Bank of Western Australia Ltd v Commissioner of Taxation (1994) 55 FCR 233 at 255 that I would follow a certain earlier decision unless I thought it was "clearly wrong". In the second case, French J accepted (at [75]) that it was well established that a judge of this Court should follow an earlier decision of another judge of the Court unless of the view that the earlier decision was "plainly wrong". French J added (at [76]) that where questions of law and statutory construction are concerned, the proposition that a judge who had taken one view of the law or statute was "clearly wrong" was one not lightly to be advanced having regard to the choices that so often confront the courts, particularly in the area of statutory construction. I do not see the approach taken by the Western Australian Court of Appeal in Mustac to be in conflict with the practice to which Lander J and French J (and I) referred. Clearly, and inevitably, their Honours accepted that an earlier decision of a court of coordinate authority is not required, as a matter of binding judicial precedent, to be followed. Moreover, French J quoted the following passage from the judgment of Burchett J in La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201 at 204: ... the authorities illustrated that [the approach of usually following a decision of another judge as a matter of judicial comity] may be influenced, either towards or away from an acceptance of the earlier decision, by circumstances so various as to be difficult to comprehend within a single concise formulation of principle ... (my emphasis) Although Virgin Holdings is not a decision of a court of another jurisdiction, that case and the present proceedings concern the interpretation of Commonwealth legislation and DTAs that are given the force of law in Australia by that legislation. In this respect, therefore, the circumstances fall within class (a) identified by Mason P. Assuming it to be indistinguishable, I will follow Virgin Holdings unless I consider it to be clearly wrong or plainly wrong. The breadth of the nature of "income" for the purposes of income tax statutes recognised in these cases is demonstrated by the fact that when the UK Agreement was signed in 1967, the ITAA 1936 already included in assessable income several amounts that were not income in accordance with ordinary concepts. In Virgin Holdings, Edmonds J referred, inter alia, to the following examples (at [38]): Notional amounts that were not derived by the taxpayer at all; eg where stock was disposed of at less than market value and outside the ordinary course of trade, the market value was included in assessable income (s 36 of the ITAA 1936, re-enacting s 17(3) of the ITAA 1922); and, where its criteria were satisfied, amounts caught as a result of the operation of s 260 of the ITAA 1936; Distributions by a liquidator in satisfaction of a shareholder's interest in a company to the extent to which they represented income derived by the company (s 47 of the ITAA 1936); Consideration received on the disposal of property in respect of which depreciation had been allowed, to the extent that the consideration exceeded the depreciated value (s 59 of the ITAA 1936); Gains made on the disposal of capital assets in cases where certain circumstances of acquisition were met (s 25A and its predecessor s 26(a) of the ITAA 1936 s 26(a) formed part of the ITAA 1936 from its commencement, but its predecessor, para (ba) of the definition of "income" in s 4 of the ITAA 1922 , had been introduced into that definition by s 2(c) of Act No 50 of 1930). The meaning of the expression "the Commonwealth income tax" in 1967 The expression of present interest is not "income" in isolation but the expression "the Commonwealth income tax" in Art 1(1)(b). As mentioned, this expression was not defined in the UK Agreement. Nor was the expression defined in the ITAA 1936. It has not subsequently been defined in either the ITAA 1936, or its successor, the ITAA 1997. However, in 1967 this was a well-known category of tax the tax imposed by the Commonwealth on "income" as assessed under the ITAA 1936. Section 6(1) of the ITAA 1936 defined "income tax" to mean "income tax ... imposed as such by any Act, as assessed under the [ITAA 1936] or under that Act as amended at any time " (my emphasis). First, the First Applicant submits that the tax on net capital gains imposed by the Pt IIIA régime is a "substantially similar tax" to "the Commonwealth income tax". In this respect, the First Applicant relies on the reasons given by Edmonds J in Virgin Holdings at [54]-[58] with respect to the Swiss Agreement. The First Applicant submits that a similar conclusion was reached in both Canada and Ireland, citing Gadsden v Minister of National Revenue [1983] CTC 2132 ; 83 DTC 127 at 132; Gladden Estate v Minister of National Revenue [1985] 1 CTC 163; 85 DTC 5188 ; and Kinsella v Revenue Commissioners [2007] IEHC 250. The First Applicant also submits that this approach is consistent with that of the commentator Klaus Vogel in Klaus Vogel on Double Tax Conventions (Kluwer Law International, 1997) at p 157 where the author states: Taxation of capital gains is normally dealt with in income tax laws, though in some instances separate legislation is devoted to that subject (...). Consequently, any new capital gains tax will for treaty purposes normally have to be considered as being at least similar to income tax; .... Resolution of the issue that arises under Art 1(2) requires me to make assumptions, the nature of which are not obvious. If the assumption to be made is that the Pt IIIA régime tax is not within the expression "the Commonwealth income tax" because the latter expression embraces only tax on income according to ordinary concepts, then the Pt IIIA régime tax is not substantially similar to "the Commonwealth income tax". But to construe "the Commonwealth income tax" so narrowly would also mean that tax on the various other forms of capital gain that the ITAA 1936 included in a taxpayer's assessable income as at the time of the signing of the UK Agreement (referred to at [101] above) would likewise be excluded, and tax on them would also not be a "substantially similar tax" to "the Commonwealth income tax". In my view, the only assumption to be made for the purposes of Art 1(2) is that the Pt IIIA régime tax is not within the expressions "the Commonwealth income tax" and I am not to go further and make any assumptions as to the reason. The Pt IIIA régime tax can then be seen to be substantially similar to the remaining tax for which the ITAA 1936 provided, if for no other reason than because other kinds of capital gains remain included in a taxpayer's assessable income. It will be clear from my reasoning above that I have independently reached conclusions on the issues that were common to the present proceedings and Virgin Holdings. It will also be clear, for what significance it may be thought to have, that I do not think that Virgin Holdings was wrongly decided. Both appeals succeed, the Commissioner's objection decisions should be set aside and the objections allowed. The Commissioner should be ordered to pay the costs of the applicant in each proceeding. I certify that the preceding one hundred and seventy-four (174) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren. Associate: Dated: 3 February 2009 In each proceeding Counsel for the Applicant: Mr DH Bloom QC, Mr SH Steward and Ms K Deards Solicitor for the Applicant: Clayton Utz Counsel for the Respondent: Mr BJ Sullivan SC, Mr MT Flynn and Mr TM Thawley Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 27 October 2008 Date of Judgment: 3 February 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/41.html


case_text: Both used as a starting point what was said in the joint judgment (Gibbs CJ, Mason, Wilson and Deane JJ) in Australian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 at 113 where, after commenting that lying behind punishment for a contempt, which involves wilful disobedience to a court order, is the very substantial purpose of disciplining the defendant and vindicating the authority of the court, their Honours said: 'It follows that a deliberate commission or omission which is in breach of an injunctive order or an undertaking will constitute such wilful disobedience unless it be casual, accidental or unintentional.' 33 If by this argument, the respondents are saying that a deliberate act or omission which is in breach of a court order will not constitute contempt unless there is an intention to breach the court order, I cannot agree. The words 'casual, accidental or unintentional' do not introduce such an additional requirement. Viewed in the context of the extract from the joint judgment in Mudginberri cited at [30] above, the qualifications are not so much true exceptions to a deliberate act or omission; rather they are by way of contradiction to such an act or omission. 35 In this context, his Honour's statement at [65] of the propositions he saw as having been established in relation to the general law of contempt by the reasons of the High Court in Mudginberri and in Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 at 530 534 per Brennan, Deane, Toohey and Gaudron JJ and 538 542 per McHugh J, is instructive: '(a) disobedience of an order of the court, or of an undertaking to the court, is aptly described as a contempt of court; this is so regardless of whether the disobedience is attended by the contumacy previously thought necessary to attract the special description of "criminal contempt"; (b) the dichotomy previously recognised between civil contempt and criminal contempt was based, in part at least, on the different rationales which were understood to inform the different kinds of contempt: civil contempt was understood to be concerned with disciplining the party in breach in vindication of the private interests of the parties to civil litigation while criminal contempt was understood to be concerned with the punishment of the offender in vindication of the public interest in the due administration of justice, and, in particular, the maintenance of the authority of the courts; (c) just as the historical differentiation between discipline and punishment and the vindication of the private interest and the public interest can no longer be sustained, so punishment by way of a fine or imprisonment as a remedy for contempt may be imposed where the disobedience of a court order is more than "casual, accidental or unintentional". It is now not essential to show that the disobedience is contumacious or defiant; (d) because the sanction for any contempt is inevitably to some extent punitive, all contempts must be proved beyond reasonable doubt.'


case_text: The applicants submit that it is no answer to proceedings for contempt to say that there was no direct intention to disobey the order. It is enough that the relevant commission or omission was deliberate and not casual, accidental or unintentional. They find support for that in what was said by Jerrard JA in Lade & Co Pty Ltd v Black [2006] QCA 294 at [24] : 'Contempt is established by proof of a deliberate act or omission which breaches an order or undertaking. It is no defence that the party deliberately doing the act honestly believes, or was wrongly advised, that it would not be in breach of the order, if the act was deliberately done.' And at [26]: 'I consider it follows that a deliberate act or omission which is in fact in breach of an order will constitute contempt, and to prove contempt it is necessary and sufficient to prove that much. There will be no contempt proved if the act or omission is "casual, accidental or unintentional".' 32 It is here where the respondents parted company. They submitted that the Court does not look to whether the act of publication itself was more than 'casual, accidental or unintentional'. These qualifications, they say, are placed upon the disobedience, not upon the 'commission or omission which is in breach'. In order to become contemptuous, Mr Chatham's disobedience to the Orders must have been more than 'casual, accidental or unintentional'. He may have published the material in breach of the Orders deliberately, but if the disobedience was merely 'casual, accidental or unintentional', then he is not guilty of contempt. 34 This is not to say that there can be contempt without disobedience. As Keane JA said in Lade at [63]: 'There must, of course, be actual disobedience. There cannot be disobedience if the alleged contemnor does not know of the order which he or she is alleged to have breached. Nor could there be disobedience where the breach of the order occurs by reason of circumstances outside the control of the alleged contemnor. But if the facts of the case enable one fairly to conclude that the alleged contemnor has disobeyed the order or undertaking then that is sufficient to constitute a contempt.'


case_text: In this context, his Honour's statement at [65] of the propositions he saw as having been established in relation to the general law of contempt by the reasons of the High Court in Mudginberri and in Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 at 530 534 per Brennan, Deane, Toohey and Gaudron JJ and 538 542 per McHugh J, is instructive: '(a) disobedience of an order of the court, or of an undertaking to the court, is aptly described as a contempt of court; this is so regardless of whether the disobedience is attended by the contumacy previously thought necessary to attract the special description of "criminal contempt"; (b) the dichotomy previously recognised between civil contempt and criminal contempt was based, in part at least, on the different rationales which were understood to inform the different kinds of contempt: civil contempt was understood to be concerned with disciplining the party in breach in vindication of the private interests of the parties to civil litigation while criminal contempt was understood to be concerned with the punishment of the offender in vindication of the public interest in the due administration of justice, and, in particular, the maintenance of the authority of the courts; (c) just as the historical differentiation between discipline and punishment and the vindication of the private interest and the public interest can no longer be sustained, so punishment by way of a fine or imprisonment as a remedy for contempt may be imposed where the disobedience of a court order is more than "casual, accidental or unintentional". It is now not essential to show that the disobedience is contumacious or defiant; (d) because the sanction for any contempt is inevitably to some extent punitive, all contempts must be proved beyond reasonable doubt.'


case_text: The Tribunal's decision is a "privative clause decision" within the meaning of s 474 of the Act . This Court cannot set the decision aside except for jurisdictional error: see Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476 at 506-508 and 511 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. A breach of s 360(1) constitutes jurisdictional error: see, for example, Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 ; (2003) 128 FCR 553 (" SCAR ") at 561 per Gray, Cooper and Selway JJ.


case_text: The Tribunal's decision is a "privative clause decision" within the meaning of s 474 of the Act . This Court cannot set the decision aside except for jurisdictional error: see Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476 at 506-508 and 511 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. A breach of s 360(1) constitutes jurisdictional error: see, for example, Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 ; (2003) 128 FCR 553 (" SCAR ") at 561 per Gray, Cooper and Selway JJ. 21 Thus, the Full Court in SCAR dismissed an appeal from a judge who had granted relief by way of certiorari in circumstances in which, unknown to the Tribunal, on account of his father's recent death, at the time of the hearing, the review applicant was suffering from extreme distress. The Full Court had regard to the obligation that s 425(1) (and therefore s 360(1)) imposed and acknowledged, at 560, that the invitation to attend a hearing "must not be a hollow shell or an empty gesture". It added at 561: "It is clear that s 425 of the Act does not require that the Tribunal actively assist the applicant in putting his or her case; not does it require the Tribunal to carry out an inquiry in order to identify what the case might be: Chen v Minister for Immigration and Multicultural Affairs [2001] FCA 1671. On the other hand, it is also clear that s 425 of the Act imposes an objective requirement on the Tribunal. The statutory obligation upon the Tribunal to provide a 'real and meaningful' invitation exists whether or not the Tribunal is aware of the actual circumstances which would defeat that obligation." 22 Although the reasoning in SCAR has not met with universal approval (see, for example, Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142 ; (2006) 154 FCR 365 at 417 per Graham J), it was a unanimous decision of a Full Court of this Court and has been followed by subsequent Full Courts: see Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 ; and NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121 ; and also cf SZFDE at 389 per French J and 400 per Allsop J. In any event SCAR remains binding on me, as on other judges of this Court at first instance: also cf NAQF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 781 ; (2003) 130 FCR 456 (" NAQF ") at 475-476 per Lindgren J and SZBII v Minister for Immigration and Multicultural Affairs [2006] FCA 1477 at [26] per Cowdroy J. In NAQF , at 476, Lindgren J referred to SCAR and observed, by way of illustration of the nature of the s 360(1) obligation, that there would be a breach of this provision "[i]f, at an MRT hearing, the member were to inform the applicant that it was not necessary for the applicant to give evidence or present arguments on such an issue, which, it transpired, in fact remained alive, and thereby dissuaded the applicant from exercising his or her right to give evidence or to present arguments on that issue". 23 SCAR is consistent with the approach adopted more recently by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592 (" SZBEL "). SZBEL confirms that conformity with s 360(1) requires the provision of an in-substance opportunity to give evidence and present submissions. At the heart of the reasoning in the joint judgment of Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ is the proposition, at 600, that: "The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the tribunal. The applicant is to be invited 'to give evidence and present arguments relating to the issues arising in relation to the decision under review'. The reference to 'the issues arising in relation to the decision under review' is important." (Emphasis original) This reference to s 425(1) applies equally to s 360(1) of the Act .


case_text: Although the reasoning in SCAR has not met with universal approval (see, for example, Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142 ; (2006) 154 FCR 365 at 417 per Graham J), it was a unanimous decision of a Full Court of this Court and has been followed by subsequent Full Courts: see Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 ; and NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121 ; and also cf SZFDE at 389 per French J and 400 per Allsop J. In any event SCAR remains binding on me, as on other judges of this Court at first instance: also cf NAQF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 781 ; (2003) 130 FCR 456 (" NAQF ") at 475-476 per Lindgren J and SZBII v Minister for Immigration and Multicultural Affairs [2006] FCA 1477 at [26] per Cowdroy J. In NAQF , at 476, Lindgren J referred to SCAR and observed, by way of illustration of the nature of the s 360(1) obligation, that there would be a breach of this provision "[i]f, at an MRT hearing, the member were to inform the applicant that it was not necessary for the applicant to give evidence or present arguments on such an issue, which, it transpired, in fact remained alive, and thereby dissuaded the applicant from exercising his or her right to give evidence or to present arguments on that issue".


case_title: Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230


case_title: NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121


case_text: Although the reasoning in SCAR has not met with universal approval (see, for example, Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142 ; (2006) 154 FCR 365 at 417 per Graham J), it was a unanimous decision of a Full Court of this Court and has been followed by subsequent Full Courts: see Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 ; and NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121 ; and also cf SZFDE at 389 per French J and 400 per Allsop J. In any event SCAR remains binding on me, as on other judges of this Court at first instance: also cf NAQF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 781 ; (2003) 130 FCR 456 (" NAQF ") at 475-476 per Lindgren J and SZBII v Minister for Immigration and Multicultural Affairs [2006] FCA 1477 at [26] per Cowdroy J. In NAQF , at 476, Lindgren J referred to SCAR and observed, by way of illustration of the nature of the s 360(1) obligation, that there would be a breach of this provision "[i]f, at an MRT hearing, the member were to inform the applicant that it was not necessary for the applicant to give evidence or present arguments on such an issue, which, it transpired, in fact remained alive, and thereby dissuaded the applicant from exercising his or her right to give evidence or to present arguments on that issue". 31 In this case, the Tribunal did not mislead the appellant in the way contemplated by Lindgren J's example in NAQF (see above at [22]). It has, however, deprived the appellant of an in-substance opportunity to present evidence and argument as effectively as the conduct at issue in SZBEL . The Tribunal in this case identified only one subject as an issue arising in relation to the decision under review. This subject, Ms Tong's communications in 2003, monopolized the Tribunal's attention with the result that it did not identify for the appellant the other issues arising on the review, in order that the appellant might address them by evidence or argument. This constituted a breach of s 360(1) of the Act and jurisdictional error.


case_title: SZBII v Minister for Immigration and Multicultural Affairs [2006] FCA 1477


case_text: SCAR is consistent with the approach adopted more recently by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592 (" SZBEL "). SZBEL confirms that conformity with s 360(1) requires the provision of an in-substance opportunity to give evidence and present submissions. At the heart of the reasoning in the joint judgment of Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ is the proposition, at 600, that: "The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the tribunal. The applicant is to be invited 'to give evidence and present arguments relating to the issues arising in relation to the decision under review'. The reference to 'the issues arising in relation to the decision under review' is important." (Emphasis original) This reference to s 425(1) applies equally to s 360(1) of the Act . 24 The issues to which ss 425(1) and 360 (1) refer are to be identified by the tribunal: see SZBEL at 600. Thus, at 602, the joint judgment said: "First, there may well be cases, perhaps many cases, where either the delegate's decision, or the tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the tribunal is not, and is not to adopt the position of, a contradictor. But where...there are specific aspects of an applicant's account, that the tribunal considers may be important to the decision and may be open to doubt, the tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted." (Emphasis original) This does not mean that the Tribunal is required to comment on what it thinks about the evidence that is given as it is given. It does mean, however, that the Tribunal must conduct itself in a way that takes account of the inquisitorial nature of its review process: cf ss 361(3) , 362 (2) and 363 (3). 25 In the circumstances of SZBEL , the Full Court held that the review applicant was not on notice that two aspects of his account were in issue because the primary decision-maker had not based his decision on them, and the Tribunal did not identify them as important issues: see SZBEL at 602. The Full Court held that the Tribunal did not give the appellant a sufficient opportunity to give evidence, or make submissions, about these issues. 26 I accept, as the first respondent submitted, that there is no scope for the operation of the common law notions of procedural fairness outside the specific provisions of Div 5 of Pt 5 of the Act because s 357A applies in the present case: cf ss 357A and 422B ; see also Minister for Immigration and Multicultural Affairs v Lat [2006] FCAFC 61 ; (2006) 151 FCR 214 at 225-226 per Heerey, Conti and Jacobson JJ and NKBT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 at [85] per Young J with whom Gyles and Stone JJ agreed. I also accept, as the first respondent submitted, that the reasoning in the joint judgment in SZBEL refers to general principles of procedural fairness. This is unsurprising because s 422B (which is equivalent to s 357A) did not apply in SZBEL . I do not accept, however, that, on account of this, I should have no regard to SZBEL in this case. As I have sought to show, the reasoning in SZBEL in fact depends on the language of s 425(1) , which was said to define the nature of the opportunity to be heard. 31 In this case, the Tribunal did not mislead the appellant in the way contemplated by Lindgren J's example in NAQF (see above at [22]). It has, however, deprived the appellant of an in-substance opportunity to present evidence and argument as effectively as the conduct at issue in SZBEL . The Tribunal in this case identified only one subject as an issue arising in relation to the decision under review. This subject, Ms Tong's communications in 2003, monopolized the Tribunal's attention with the result that it did not identify for the appellant the other issues arising on the review, in order that the appellant might address them by evidence or argument. This constituted a breach of s 360(1) of the Act and jurisdictional error.


case_text: I accept, as the first respondent submitted, that there is no scope for the operation of the common law notions of procedural fairness outside the specific provisions of Div 5 of Pt 5 of the Act because s 357A applies in the present case: cf ss 357A and 422B ; see also Minister for Immigration and Multicultural Affairs v Lat [2006] FCAFC 61 ; (2006) 151 FCR 214 at 225-226 per Heerey, Conti and Jacobson JJ and NKBT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 at [85] per Young J with whom Gyles and Stone JJ agreed. I also accept, as the first respondent submitted, that the reasoning in the joint judgment in SZBEL refers to general principles of procedural fairness. This is unsurprising because s 422B (which is equivalent to s 357A) did not apply in SZBEL . I do not accept, however, that, on account of this, I should have no regard to SZBEL in this case. As I have sought to show, the reasoning in SZBEL in fact depends on the language of s 425(1) , which was said to define the nature of the opportunity to be heard.


case_title: NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195


case_text: Counsel for the first respondent argued that the question of whether a person is a "spouse" is essentially a question of fact and evaluation for the decision-maker. The first respondent submitted that the Tribunal's reasons disclosed that it considered the matters required by reg 1.15A(3) before deciding that it was not satisfied that the appellant was in a spousal relationship with Ms Tong at the date of its decision. Counsel for the first respondent characterised the appellant's complaint as being with the Tribunal's process of reasoning on issues of fact, and submitted that the appellant's argument was simply an invitation to review the merits of the Tribunal's decision. Counsel argued that the Tribunal was not overborne by issues going to credit but properly considered matters relevant to the assessment of credit and, in consequence, made adverse credit findings as it was entitled to do. Further, referring to a passage in the judgment of Bennett J in SZBCE v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 697 at [31] , counsel for the first respondent submitted that "there was no particular threshold that was required to be satisfied before the Tribunal was entitled to disbelieve the claims advanced by the appellant".


case_text: The Tribunal's reasons for decision were detailed. They recited most of the evidence that had been given by Mr Chey and Ms Tong. I accept, as the first respondent submitted, that the question whether Mr Chey was the "spouse" of Ms Tong was essentially a question of fact. There may be errors in the Tribunal's reasoning in finding facts, or errors in the fact-finding, but this will not amount to jurisdictional error (unless there is error in the finding of a jurisdictional fact): see Re Minister for Immigration and Multicultural Affairs; ex parte Cohen [2001] HCA 10 ; (2001) 177 ALR 473 at 481-482 per McHugh J. The appellant's submissions in this part of his case took issue with the Tribunal's process of reasoning on issues of fact. No jurisdictional error is made out under this head. 38 Counsel for the appellant relied on the conduct of the Tribunal before and during the hearing, as well as the decision of the Tribunal as a whole, to support the proposition that a reasonable observer would consider that the Tribunal had brought a closed mind to the issues under consideration. Amongst other things, he referred to the Tribunal's letter of 23 December 2005 and the transcript of the hearing. 39 Counsel for the first respondent submitted that there is nothing in the Tribunal's approach to indicate that it acted with prejudgment. Counsel contended that no conclusion as to an apprehension of bias ought to be drawn based merely on the fact that the transcript of the Tribunal hearing showed some tension between the Tribunal member and the Erskine Rodan representative.


case_text: The High Court in Re Refugee Review Tribunal; ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 discussed the test for apprehended bias in administrative proceedings. In their joint judgment at 434-435, Gleeson CJ, Gaudron and Gummow JJ said: "The test is for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the question of the question to be decided. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of 'a fair-minded lay observer' when, as is the case with the tribunal, proceedings are held in private. Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof." As their Honours noted, in a case such as the present, in considering the matter of apprehended bias, the non-curial and inquisitorial nature of the proceeding is to be borne in mind. 41 For the reasons I am about to state, no case of apprehended bias is made out. The Tribunal's letter of 23 December 2005 indicated that the Tribunal was dissatisfied with Erskine Rodan's conduct as the appellant's representative, not that it had taken an adverse view of the appellant's claims. I would not regard the Tribunal's direct communication with Ms Tong as amounting to evidence of prejudgment on the Tribunal's part, as the appellant suggested at one stage: cf with s 379G(4) which permits the Tribunal to communicate orally with a review applicant providing it gives the "authorised recipient" notice of the communication. There is no other indication of prejudgment on the Tribunal's part prior to the hearing. 42 At the hearing, the Tribunal member was irritated, even annoyed, by the appellant's representative's conduct, especially in interrupting him. The transcript shows that the Tribunal member and the appellant's representative disagreed about various matters relating to the conduct of the hearing. Relatively early in the hearing, the representative expressed her disquiet about the Tribunal member's questions to Mr Chey concerning Ms Tong's family. The Tribunal member asked her to refrain "from interrupting my questioning. I'm asking those questions for a reason." When the representative persisted, the member said: "I'm not going to respond to that. I'm in the middle of questioning." When she reiterated her disquiet, the Tribunal member said: "The relevance or otherwise of a matter is something for me to determine, and I will determine that. Now, I'm not going to be told what questions to ask and what questions not to ask, and I'm not going to be interrupted. Things are difficult enough as it is, I'm going through a number of matters. I would appreciate your cooperation in refraining from interrupting me any further." This led to the following exchange: "Representative: I think you need to think very carefully about the questions and whether they're relevant to the marriage. Tribunal member: The relevance or otherwise of a matter is something for me to determine, and I will determine that. Now, I'm not going to be told what questions to ask and what questions not to ask, and I'm not going to be interrupted. Things are difficulty enough as it is, I'm going through a number of matters. I would appreciate your cooperation in refraining from interrupting me any further---- Representative: If you continue to ask those questions that are not relevant I am going to interrupt, because I think it's inappropriate. Tribunal member: It's not your position to gainsay the appropriateness or otherwise of the tribunal's questions. If you, at the end of the hearing, feel that there's been a jurisdictional error then you would be aware of the avenues open to you. Representative: Absolutely. Tribunal member: So that would be the appropriate course of action, but to interrupt me whenever you form the view that I'm asking an irrelevant question is, in my view, inappropriate. Representative: I do that very, very rarely, but this is about Channy's family and there are particular complications that you're not aware of and I think you need to question her. Tribunal member: Again, you're (indistinct) question to me, or you're indicating that I shouldn't be asking certain questions that I should be putting to another witness. Now, that to me is stepping beyond your role, quite clearly, as a representative. Your role as a representative is to assist the --- ... Tribunal member: It's in your perception it's assisting me. That's not my perception. In fact, my perception is it's hindering me and I'll ask you to refrain from doing that. Representative: I'm going to say what I believe needs to be said and if you want to do what ever you like about that you can do so. Tribunal member: You would be aware of the provisions under the act that go to the role of the representative."


case_text: The Tribunal is bound to take into account the considerations set out in reg 1.15A(3): see Nassouh v Minister for Immigration and Multicultural Affairs [2000] FCA 788 , cited with approval in Zhang v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 30 (" Zhang ") at [15] per Moore, Mansfield and Dowsett JJ. Failure to do so will amount to jurisdictional error: see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 at 24 per Gummow and Hayne JJ. The Full Court said in Zhang at [14], where an issue arose as to whether the Tribunal had considered the factors in reg 1.15A(3)(c): "The reasons of the Tribunal are not to be read with an eye attuned to the ready perception of error: Minister for Immigration and Ethnic Affairs v Wu Shal Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 271-272 and 291. On the other hand, it is important to review the Tribunal's reasons to be satisfied that the Tribunal has in fact had regard to the matters which it must address. The routine citation of statutory provisions or authorities will not necessarily demonstrate that regard."


case_text: The Tribunal is bound to take into account the considerations set out in reg 1.15A(3): see Nassouh v Minister for Immigration and Multicultural Affairs [2000] FCA 788 , cited with approval in Zhang v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 30 (" Zhang ") at [15] per Moore, Mansfield and Dowsett JJ. Failure to do so will amount to jurisdictional error: see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 at 24 per Gummow and Hayne JJ. The Full Court said in Zhang at [14], where an issue arose as to whether the Tribunal had considered the factors in reg 1.15A(3)(c): "The reasons of the Tribunal are not to be read with an eye attuned to the ready perception of error: Minister for Immigration and Ethnic Affairs v Wu Shal Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 271-272 and 291. On the other hand, it is important to review the Tribunal's reasons to be satisfied that the Tribunal has in fact had regard to the matters which it must address. The routine citation of statutory provisions or authorities will not necessarily demonstrate that regard." 52 Zhang is illustrative of a case in which the failure to make relevant findings did not lead to a holding that the decision-maker had failed to take into account the requisite matters: see Zhang at [19]-[20]. The decision shows that it is unnecessary for a decision-maker to "laboriously evaluate seriatim each of the considerations in reg 1.15A(3)". In that case, it was enough that the Tribunal considered the relevant evidence under the topics referred to in the regulation (as the Tribunal did in the present case). 53 Examination of the Tribunal's reasons in the present case and, in particular, its consideration of the evidence relevant to reg 1.15A(3), also shows that the requisite matters were considered and are reflected in the Tribunal's findings to the extent they are relevant. Under the heading, "[t]he nature of the household" (the subject of reg 1.15A(3)(b), the Tribunal made its finding that it was not satisfied that the appellant and Ms Tong were residing together in Melbourne (and if they were, then it was not satisfied that the relationship was genuine). This was relevant, amongst other things, to reg 1.15A(3)(b)(ii). In light of this finding, it was open to the Tribunal to determine that it was unnecessary to say anything specifically about either any joint responsibility for care and support of their child (the subject of reg 1.15A(3)(b)(i)) or shared responsibility for housework (the subject of reg 1.15A(3)(b)(iii)). Accordingly, I would not infer from the Tribunal's failure to mention the issue of joint child care and support that the Tribunal did not consider it or any other matter it was bound to consider. 54 Jurisdictional error is not established under this ground. 55 For the reasons stated, the appellant has established jurisdictional error as a result of a breach of s 360(1) of the Act , although he has not succeeded on his other grounds. The appeal should therefore be allowed. I would make orders accordingly. I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny. Associate: Dated: 8 June 2007 Counsel for the Appellant: Mr G. Gilbert Solicitors for the Appellant: Erskine Rodan & Associates Counsel for the First Respondent: Mr W. Mosley Solicitors for the First Respondent: Australian Government Solicitor Date of Hearing: 13 February 2007 Date of Judgment: 8 June 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/871.html


case_title: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12


case_text: The Tribunal made no finding about "any joint responsibility for care and support" of a child, of the kind that might result from a consideration of this particular matter. It does not, however, necessarily follow from this that the Tribunal did not address this specific matter, although the omission may support such a conclusion. As Dowsett J said in Davis v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 686 at [35] , reg 1.15A(3) does not require the Tribunal to make specific findings concerning the matters to which it refers. Whether the omission is indicative of jurisdictional error depends very largely on the circumstances of each case.


case_text: It is common practice in this Court, as has already been pointed out, for Counsel to orally address the Court by way of closing submissions at the conclusion of evidence, after which some judges require written submissions. Although it is true that the respondents have already filed their written submissions in accordance with my directions, and that I have had the opportunity to read them, any potential disadvantage or unfairness to the applicants from the fact that I have not read their submissions in advance (which is due to the failure of the applicants to file either submissions or a written outline) can be offset by a detailed and comprehensive oral address by their Counsel today, and by the subsequent filing of written submissions. In this way, in my view, justice can be done to the applicant in line with comments of the High Court in State of Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146. Where I do agree with Mr Perry is in relation to the importance of hearing submissions from the applicants in this case. It is their case, and their case which they have to prove. 23 In the circumstances, notwithstanding their breach of my orders in relation to written submissions, and the concession by Mr Perry that the applicants have even now not completed written submissions (despite having had almost three weeks to do so), I am prepared in the interests of justice to grant leave to the applicants to file and serve written submissions by 9.30 am tomorrow 6 June 2007. 24 I also grant leave to the respondents to file and serve any written submissions in reply by 4.00 pm 13 June 2007.


case_outcome: distinguished

case_title: American President Lines v Guangzhou Feida Electrical Appartus Factory of Wanbao Group (Supreme People's Court of the People's Republic of China, 4 th Civil Division, unreported, 25 June 2002)


case_text: The House of Lords held in The Raphaela S [2005] 2 AC 423 that a straight bill was "a bill of lading or any similar document of title" because it was a document of title within the meaning and for the purposes of Art I(b) of the Hague-Visby Rules: The Raphaela S [2005] 2 AC at 450 [22] per Lord Bingham, 458 [46] per Lord Steyn, 460-461 [57], 465 [70] and 466 [78] per Lord Rodger of Earlsferry, 451 [26] per Lord Nicholls of Birkenhead and 466 [79] per Lord Brown of Eaton-under-Heywood agreeing. And in BHP Trading Asia Ltd v Oceaname Shipping Ltd (1996) 67 FCR 211 at 222E-F, 223E Hill J appeared to recognise that a straight bill of lading was a document of title giving the right to call for delivery of the cargo at the port of destination.