case_text: Subject to the caveat just mentioned, the sales tax cases contain the most helpful discussion of the principles that should guide the construction of the statutory phrase in s 74A(2)(a). There are some relevant decisions in the trade practices area dealing directly with the construction of the statutory phrase or substantially similar expressions: see Crago v Multiquip Pty Ltd & Dunogan Farm Tech Pty Ltd (1998) ATPR 41-620 (' Crago' ); Minchillo v Ford Motor Company of Australia [1995] 2 VR 594 (' Minchillo') ; Jillawarra Grazing Co v John Shearer Ltd (1984) ATPR 40-441 (' Jillawarra') ; Carpet Call Pty Ltd v Chan (1987) ASC 55-553 (' Carpet Call' ); and Westminster Properties Pty Ltd v Comco Constructions Pty Ltd (1991) 5 WAR 191 (' Westminster') . However, these cases tend to illustrate the application of the statutory phrase, rather than provide any illuminating discussion of the relevant principles of construction. 91 In Westminster , the applicant brought a claim against the respondent pursuant to s 52A of the TPA, which prohibited a corporation from engaging in unconscionable conduct. By force of subs (5), s 52A only applied to goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption. The Full Court held that building services provided by the respondent pursuant to a contract to erect a multi-storey office block were not services of a kind ordinarily acquired for personal, domestic or household use or consumption: at 206-207 per Kennedy J. Kennedy J also said that s 52A is directed essentially at consumer-type transactions, although the wording of the section is not such as to automatically exclude even substantial corporations from the category of consumer in every case: at 207.


case_outcome: distinguished

case_text: First, the word 'ordinarily' means 'commonly' or 'regularly', not 'principally', 'exclusively' or 'predominately': see Clean Investments at 273 [97] per Lindgren J; Chubb at 560 per Burchett J, and at 57 per Hill J; Hygienic Lily at 399-400 per Gummow J. Counsel for the respondent invited me to depart from these authorities, and to hold that the word 'ordinarily' as used in s 74A(2)(a) means 'predominately'. In view of the authorities to which I was referred, I doubt that I am free to adopt such a construction. In any event, I am not persuaded that the word 'ordinarily' in s 74A(2)(a) means 'predominately' rather than 'commonly' or 'regularly'. On the contrary, I consider that the meaning which best accords with the policy and the purposes of the TPA is that of 'commonly' or 'regularly'. I am conscious that the Full Court of the Victorian Supreme Court in ICI Australia Operations Pty Ltd v Deputy Commissioner of Taxation (Vic) (1987) 82 ATC 5110 said at 5112 that the concept of 'ordinarily used for' equals 'whose primary but not necessarily exclusive purpose and customary use is'. However, I do not agree that the word 'ordinarily' should be given such a connotation in s 74A(2)(a) or elsewhere in the TPA.


case_outcome: discussed

case_text: In Air International Pty Ltd v Chief Executive Officer of Customs [2002] FCA 355 ; (2002) 121 FCR 149, the Full Court considered whether imported fan assemblies, condensers and evaporators were goods 'of a kind used as replacement components in passenger vehicles' within the meaning of a particular item of the Customs Tariff Act 1995 (Cth). Tamberlin J adopted Gummow J's approach to the classification of a genus of goods in Hygenic Lily and considered whether the components in their nature, adaptation or quality could properly be characterised as 'replacement' components. His Honour had regard to evidence of actual use of the goods in deciding whether the goods are 'of a kind', stating at 160 [53]: 'It is helpful to look at actual use, if any, when deciding whether goods are of a kind used as replacement components. Where they are so used, then that points to a conclusion that they are "of a kind" so used. The words "of a kind" add a further level of generality to the expression "used" so that even if (to use the Tribunal's expression) the goods are not so used but are within a range of goods of a type which are used, then they satisfy the required description.' Tamberlin J considered that it was open to the Tribunal to find, as it did, that the goods were of a genus of goods that were used as replacement components. O'Loughlin J agreed with Tamberlin J. In his dissenting judgment, Hill J said at 158 [35]: 'In my view the proper approach to the question of classification here, where it is obvious that the imported parts are capable of being used either as original parts for the assembly of motor vehicle air conditioning units or to replace parts that had previously been imported and used in the assembly of such motor vehicle air conditioning units is to consider what the essential character of the particular imported goods is. It can be accepted both from the language of the particular subheading and from the fact that customs duty will be payable on entry and before actual use, that the question how the particular parts are in fact used, will, subject to the comments below, be irrelevant to the question. That does not mean, however, that the purpose for which the goods are imported will be irrelevant.' On the facts of the case, Hill J found that it was not possible to classify the goods by reference to their essential character and that, accordingly, it was necessary to classify the goods by reference to the exclusive or primary purpose for which they were imported. Hill J explained the reasons why that was so in the following passage, at 158-159 [37]: '... I am of the view that goods cannot, for customs classification, be treated as belonging to more than one "kind". Further, where no distinction exists between articles which are of the kind used as replacement components, and those which are not, (and the present is such a case) the only way in which the relevant kind can be ascertained will be by ascertaining what the exclusive or primary purpose is for which the goods are imported. Subsequent use, may be the best evidence of that purpose. In my view it will generally be the case with goods of the present kind, that they will take their character from the purpose of the importing, rather than anything which is an inherent quality of the goods themselves.' 85 In contrast, Tamberlin J said that the intent or purpose of the manufacturer or importer is not the criterion to be applied: at 159 [46]. 86 In my opinion, in the context of s 74A(2)(a) of the TPA, the essential character test is relevant, but the inquiry does not end there. The statutory question cannot be answered without a broader inquiry into the evidence concerning the design, marketing, pricing and potential uses of the type of goods in question.


case_outcome: cited

case_text: French J drew attention to the statutory context and the general principles that the classification of goods attracting exemptions or beneficial rates of tax should be liberally construed unless the text or context requires a narrower construction, and that words or phrases should be construed according to their popular meaning unless the evidence establishes that they carry a special commercial or trade meaning in their context: at 457 and 464. His Honour also noted that generalisations about the construction of statutory classifications are to be undertaken with caution, and that subtle changes in language can significantly alter the meaning and operation of a particular provision. French J contrasted the construction given by the authorities to the expression 'ordinarily used for household purposes' with the construction given to the expression 'goods for use' in some specified activity or by some specified person or entity. The former expression has attracted an objective test for characterisation of the goods said to fall within it: see Commissioner of Taxation (Cth) v Newbound & Co Pty Ltd (1952) 10 ATD 59; 26 ALJR 386 at 387 per Dixon CJ; Commissioner of Taxation (Cth) v Sherwood Overseas Pty Ltd (1985) 75 FLR 474 at 477; O R Cormack Pty Ltd v Commissioner of Taxation (Cth) (1992) 92 ATC 4121 at 4123; and Hygienic Lily at 399. In the light of these authorities, French J expressed the test as follows, at 460: 'The question whether goods are "ordinarily used for household purposes" does not depend critically upon the use to which they are in fact put but on an assessment of their "essential character". That assessment does not involve fine semantic distinctions but a judgment which pays regard to the commercial realities of their manufacture and sale.'


case_title: Commissioner of Taxation (Cth) v Sherwood Overseas Pty Ltd (1985) 75 FLR 474


case_title: O R Cormack Pty Ltd v Commissioner of Taxation (Cth) (1992) 92 ATC 4121


case_text: French J said that, in contrast, the expression 'goods for use' introduces more subjective considerations into the characterisation process. In Commissioner of Taxation (Cth) v Hamersley Iron Pty Ltd (1981) 59 FLR 415, the Full Court of the Victorian Supreme Court noted that the expression 'for use in' is purposive, and makes relevant facts such as the operations which the machines in question were intended to perform, built to order to perform, and did perform: at 426 per Lush J (Kaye and Brooking JJ agreeing). In Deputy Commissioner of Taxation v Stewart [1984] HCA 11 ; (1984) 154 CLR 385, the High Court was concerned with the expression 'goods for use ... and not for sale, by ... a public benevolent institution'. Gibbs CJ (Dawson J agreeing) said that the words 'for use' indicate the purpose to which the goods are intended to be put, rather than the use for which the goods were designed: at 390. Deane J said at 401 that these words require an objective characterisation of the goods themselves in the light of all the relevant circumstances, including knowledge of the actual use which was subsequently made of the goods. French J in Diethelm summed up these authorities by saying, at 464: 'Where design purposes are referred to in the classification by such phrases as "for use as", the subjective intention of the manufacturer and purchaser and actual uses to which the goods are put may be taken into account in the process of characterisation.'


case_title: Deputy Commissioner of Taxation v Stewart [1984] HCA 11 ; (1984) 154 CLR 385


case_outcome: followed

case_text: the Tribunal is under no unqualified duty to obtain a translation of all material that a claimant may seek to rely upon. Thus, in Cabal v Minister for Immigration and Multicultural Affairs [2001] FCA 546 , Wilcox, Whitlam and Marshall JJ thus observed: [25] There may be occasions in which the RRT is under an obligation to obtain a translation of a particular document which is in a foreign language and whose relevance has been explained to the RRT. However, the primary judge was correct when he said, as a general proposition, at [46] that the RRT "is not required to translate material in a foreign language" or "consider large volumes of material whose relevance is not explained". Its failure to do so will not mean that it failed to consider or review an application in accordance with s414(1) of the Act or s54 of the Act, if applicable, when it has otherwise dealt with all material considered by it to be germane to its task of reviewing the decision of the delegate. In the present case the additional material was voluminous (including 19 textbooks in Spanish) and its relevance unexplained. To the extent that an occasion may arise as to whether a translation of materials should be obtained, such occasions may be confined to securing the translation of " a particular document ". There is no general requirement to secure the translation of " voluminous " material. Indeed, there may be no requirement imposed upon the Tribunal to secure the translation of even a particular document. But, if a document that has not been translated is to be relied upon, there may be a necessity to inform a claimant that the Tribunal will not take that document into account because a translation has not been furnished: X v Minister for Immigration and Multicultural Affairs [2002] FCA 56 , 116 FCR 319. There in issue was a diary obtained from Burma. The Tribunal affirmed the decision under review and concluded that it could not take the diary into account as it had not been translated. Moore J there observed: [53] The point addressed by the Full Court in Cabal v Minister for Immigration and Multicultural Affairs [2001] FCA 546 was whether the Tribunal was under a general obligation to obtain for itself a translation of documents furnished by an applicant. The issue in this appeal is slightly different. I do not suggest that the Tribunal was obliged to obtain a translation of the diary itself nor that it was obliged to defer deciding the appellant's application until the appellant had provided a translation. What it did not do was inform the appellant that it would not take into account the contents of the diary because a translation had not been furnished. Generally, an applicant would be likely to know what a document relied on said and its significance. Both matters could be explained by the applicant if comment was invited before the document was effectively rejected. The Tribunal is not bound by any "best evidence" rule and can rely on secondary evidence, as it is described in curial proceedings, of the contents of documents: see s 420(2). Moreover, it is open to the Tribunal to request (as it routinely does) that an applicant provide translations of documents on which he or she relies particularly if the applicant says the document is significant or the Tribunal believes it may be. If a translated document provided by an applicant bears upon the claim of the applicant and the Tribunal is to have regard to it, the Tribunal can either accept the translation or independently seek to verify its accuracy. It is improbable that the statutory scheme would require the Tribunal ordinarily to obtain a translation if none was provided, after invitation, by the applicant: see Cabal v Minister for Immigration and Multicultural Affairs . However, equally, it is unlikely that the statutory scheme authorised the Tribunal to disregard the contents of a document relied on by an applicant simply because it was not in English, when the applicant was not put on notice that the contents would be disregarded without a translation being provided, before the decision was made to reject the application for a protection visa. Both Gray and Moore JJ concluded that the Tribunal could not decline to consider the document simply because it was not in English. Gray J further found that the present case was one where a translation should have been obtained. His Honour relevantly concluded: [30] ... The appellant's diary was the only document tendered. It related only to 1988. Its relevance to the issue of the appellant's involvement in political activities in 1988 was explained (in the sense that the appellant had submitted, and the Tribunal understood, that this was what the diary was relevant to). This was an occasion on which the Tribunal was "under an obligation to obtain a translation of a particular document which is in a foreign language and whose relevance has been explained" to it. To fail to do so was to act without power, because the Migration Act should be construed as not permitting the Tribunal to distinguish against the appellant on the ground of his race, language, or national or social origin, by refusing to take into account a document of his making because it is not in the English language. It is one thing for the Tribunal to request that documents be translated into English. It is quite another to refuse to take into account a document that is asserted to be relevant to a specific issue on the ground that it has not been so translated. O'Loughlin J dissented. In doing so, however, His Honour observed that " [t]here is room for a variety of views — so much so that I do not think it appropriate for this Court to lay down inflexible guidelines ": [2002] FCA 56 at [44] , 116 FCR at 331.


case_outcome: referred to

case_title: Cabal v United Mexican States (No 3) [2000] FCA 1204 , 186 ALR 188

case_text: present appeal is thus not the occasion to give any detailed consideration to those circumstances in which an opportunity to be heard or the requirement to take into account a consideration relevant to a decision to be made may embrace a requirement to have documents relevant to a claimant's case translated from a foreign language into English. Not unexpectedly, there has been no examination in the present proceeding of any more generally expressed requirement for evidence in civil or administrative proceedings to be in English. Nor has there been any real examination of such guidance as may be gleaned from those cases — such as extradition cases — where documents supplied in support of an extradition request may need to be translated: e.g. Cabal v United Mexican States (No 3) [2000] FCA 1204 at [154] to [164] [2000] FCA 1204 ; , 186 ALR 188 at 247 to 251 per French J. But considerations which may readily be identified as relevant to any such requirement extend to such matters as: the number of documents in issue; the relevance of those documents to the claims being advanced; the ability of a claimant to otherwise advance his case and any prejudice that may be suffered if documents are not translated; the availability and ability of an interpreter present during the course of a hearing before the Tribunal to translate particular documents or particular parts of documents identified by a claimant as relevant to his claims; and the financial ability of a claimant to himself pay for the translation of documents and the ability of the documents to be translated by any community-funded agency. No jurisdictional error, it is considered, is exposed simply by reason of the fact that a claimant seeks to rely upon documents written in a foreign language but not translated. More needs to be established. In the present appeal, no jurisdictional error is disclosed by the fact that numerous newspaper articles were not translated and were returned to the now Appellant at the conclusion of the hearing. The fundamental difficulty confronting the Appellant before the Federal Magistrates Court — and this Court on Appeal — is the adverse findings as to credit made by the Tribunal. Those were findings of fact, however, entrusted by the legislature to the Tribunal. No jurisdictional error is disclosed in the manner in which the Tribunal proceeded or in its reasons for decision.


case_title: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 , 259 ALR 429

case_text: some circumstances it may be accepted that a Tribunal should make inquiries into aspects of a claimant's case: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [24] , [2009] HCA 39 ; 259 ALR 429 at 436. Whatever may be the extent of that duty and the circumstances in which it arises, in the present proceeding it may be accepted that inquiries were in fact made. The reasons for decision of the Tribunal thus record in relevant part the following: DFAT inquiries made at "Gujarat Today" [118] The Tribunal requested DFAT on 5 August 2008 to make inquiries in regard to the newspaper which the applicant claimed to write for. DFAT responded as follows: Gujarat Today is a non-partisan newspaper covering political and social issues. It is run by reputed NGO, Lok-Hit Sarvajanik Trust which was established in 1985 to bridge the "communal divide" caused by widespread religious unrest in that year. The Trust is managed by the Muslim community, and in addition to the newspaper is also involved [sic] charitable work such as free medical treatment camps in slum areas, educational [sic] for the poor, rehabilitation services to those affected by floods, earthquakes, etc. Gujarat Today is known to have raised and highlighted social issues of relevance to Gujarat ( Department of Foreign Affairs and Trade 2008, DFAT Report 875 India: RRT Information Request IND33642, 2 September ). [119] The rest of the DFAT response is set out below. Summary Further to RRT request IND33642, post has confirmed that a Mr [X] worked with newspaper Gujarat Today for a short period four or five years ago. Post could not verify the validity of the press identity card provided in reftel [ie research request]. Post could not obtain a photograph of the person whose name appears on the press identity card. Cable provides post response to RRT Country Information Request IND33642. 2. Post made enquiries at the office of Gujarat Today . Gujarat Today staff informed us that a Mr [X] worked with Gujarat Today some four to five years ago for around two months. Post did not provide the newspaper with a copy of the press identity card provided in reftel as they informed us that due to inadequate records management they would be unable to verify its authenticity. 3. Post was unable to verify the photograph of Mr [X] through other sources. Most staff at Gujarat Today either knew very little about Mr [X] or were too new to the organisation to provide any information ( Department of Foreign Affairs and Trade 2008, DFAT Report 875 India: RRT Information Request IND33642, 2 September ).


case_text: second reason why this final Ground of Appeal should be rejected is that, in the present proceeding, the now Appellant had been expressly invited by the Tribunal to draw its attention to any particular document that he specifically sought to rely upon. He apparently declined that invitation. The reasons for decision of the Tribunal thus record that it asked the Appellant " whether there was anything he particularly wanted to refer it to within the large amount of material submitted ...". And that arose, it is to be recalled, in a context where the now Appellant had been requested to provide documents to the Tribunal in advance of the hearing and yet only produced many of the documents on the day of the hearing itself. A claimant cannot complain of any inadequacy of an opportunity to be heard, or of any failure to take into account a particular matter, in circumstances where he produces a vast number of documents at a hearing before the Tribunal and fails to avail himself of an opportunity to draw the Tribunal's attention to a particular matter or matters contained within those documents. Even where a document is not translated, there may be no error where the Tribunal in fact takes into account a point sought to be made by a claimant in reliance upon untranslated documents: SZLSW v Minister for Immigration and Citizenship [2008] FCA 1321 at [16] , 103 ALD 580 at 584. Where the " gist " of a document which is otherwise untranslated is understood, there may be no error: S14/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1153 at [49] per Moore J.


case_title: SZLSW v Minister for Immigration and Citizenship [2008] FCA 1321 , 103 ALD 580


case_outcome: affirmed

case_text: Application was subsequently amended on 30 January 2009. The Amended Application set forth the Grounds upon which it was advanced as follows (without alteration): Ground one. The Tribunal failed to take into account a relevant consideration, and failed to give genuine, realistic, and proper consideration, to a central aspect of the Applicant's claim, which was that the Applicant worked as a journalist for the Gujarat daily, and published numerous articles with his byline attached, which supported his claims to be a Muslim activist, targeted by the authorities in India ( Tickner v Bropho [1993] FCA 208 ; (1993) 40 FCR 183 , at 197-199). Particulars. 1.1 A simple inquiry of the editor of the Gujarat Daily, as requested by the Applicant, would have revealed that the Applicant had worked for the Gujarat Daily as claimed. 1.2 The Tribunal's own request that DFAT in India verify that the form of the press card held by the Applicant was consistent with the press cards issued by the Gujarat Daily newspaper had not been complied with, and could simply have been followed up. 1.3 The form of DFAT's response to the Tribunal request that it attempt to verify these claims central to the Applicant's case was sufficient to alert the Tribunal to an obvious obscurity or problem with the inquiries made by DFAT; the source was clearly either unco-operative or not sufficiently informed. Ground two. The Tribunal failed to comply with section 425 of the Migration Act 1958 , and failed to give the applicant a proper opportunity to appear before the Tribunal and present evidence and argument in relation to the issues upon which the case turned in refusing to accept the tender of articles written by the Applicant in the Gujarat Daily newspaper, which were relevant because they could easily have been authenticated through DFAT in India. The Minister was called upon to show cause why relief should not be granted on these Grounds . The Federal Magistrates Court dismissed the Application before it on 25 June 2009: SZMXS v Minister for Immigration and Citizenship [2009] FMCA 537. Before the Federal Magistrates Court the now Appellant was represented by Counsel. A Notice of Appeal was thereafter filed in this Court on 14 July 2009. The Grounds of Appeal provide as follows (without alteration): In term of false case the Respondent said that there is no charges against appellant. There is no basis of this as such the Respondent made an error in making this decision The Respondent committed jurisdictional error of LAW by failing to consider an integer of Appellant's claim: (a) that Appellant no provide documents which was relied in making the decision (b) about enquiries to the GUJRAT DAILY employment. The Respondent made irrelevant consideration in deciding the case and Respondent founding was based on wrong footing and no basis in making this decision The Tribunal thus made some inquiries. No jurisdictional error is exposed by the Tribunal not making further inquiries or not causing further inquiries to be made. Nor is an error exposed in the reasons for decision of the Federal Magistrate in rejecting arguments founded upon any alleged failure to make inquiries: [2009] FMCA 537 at [14] to [26]. As with the previous Ground of Appeal , this Ground too suffers from the defect that it does not identify any appellable error said to have been committed by the Federal Magistrate. But it, too, can be construed as a contention that the Federal Magistrate erred in rejecting a comparable argument with respect to the Tribunal's decision. So construed, the Ground was understood to relate to the myriad newspaper articles sought to be relied upon by the now Appellant when appearing before the Tribunal. Although the Ground refers to the Tribunal " refusing to accept the tender of articles ", that may not be an accurate manner in which to describe what happened.


case_text: leave may be granted to rely upon an argument raised for the first time on appeal, leave should not too readily be granted — especially where it is not evident that the grant of leave is necessary in the interests of the administration of justice: SZNSC v Minister for Immigration and Citizenship [2009] FCA 1436. In refusing leave in the present proceeding to depart from the manner in which the case was advanced before the Federal Magistrate, particular reliance has been placed upon the fact that the now Appellant was previously represented by Counsel and the apparent lack of merit in the argument now sought to be advanced. Although the second Ground of Appeal suffers from the defect that it alleges no error said to have been committed by the Federal Magistrate, it has been construed as an argument that the Federal Magistrate erred in rejecting a comparable argument. So construed, it is a Ground without merit.


case_outcome: considered

case_text: there may be no requirement imposed upon the Tribunal to secure the translation of even a particular document. But, if a document that has not been translated is to be relied upon, there may be a necessity to inform a claimant that the Tribunal will not take that document into account because a translation has not been furnished: X v Minister for Immigration and Multicultural Affairs [2002] FCA 56 , 116 FCR 319. There in issue was a diary obtained from Burma. The Tribunal affirmed the decision under review and concluded that it could not take the diary into account as it had not been translated. Moore J there observed: [53] The point addressed by the Full Court in Cabal v Minister for Immigration and Multicultural Affairs [2001] FCA 546 was whether the Tribunal was under a general obligation to obtain for itself a translation of documents furnished by an applicant. The issue in this appeal is slightly different. I do not suggest that the Tribunal was obliged to obtain a translation of the diary itself nor that it was obliged to defer deciding the appellant's application until the appellant had provided a translation. What it did not do was inform the appellant that it would not take into account the contents of the diary because a translation had not been furnished. Generally, an applicant would be likely to know what a document relied on said and its significance. Both matters could be explained by the applicant if comment was invited before the document was effectively rejected. The Tribunal is not bound by any "best evidence" rule and can rely on secondary evidence, as it is described in curial proceedings, of the contents of documents: see s 420(2). Moreover, it is open to the Tribunal to request (as it routinely does) that an applicant provide translations of documents on which he or she relies particularly if the applicant says the document is significant or the Tribunal believes it may be. If a translated document provided by an applicant bears upon the claim of the applicant and the Tribunal is to have regard to it, the Tribunal can either accept the translation or independently seek to verify its accuracy. It is improbable that the statutory scheme would require the Tribunal ordinarily to obtain a translation if none was provided, after invitation, by the applicant: see Cabal v Minister for Immigration and Multicultural Affairs . However, equally, it is unlikely that the statutory scheme authorised the Tribunal to disregard the contents of a document relied on by an applicant simply because it was not in English, when the applicant was not put on notice that the contents would be disregarded without a translation being provided, before the decision was made to reject the application for a protection visa. Both Gray and Moore JJ concluded that the Tribunal could not decline to consider the document simply because it was not in English. Gray J further found that the present case was one where a translation should have been obtained. His Honour relevantly concluded: [30] ... The appellant's diary was the only document tendered. It related only to 1988. Its relevance to the issue of the appellant's involvement in political activities in 1988 was explained (in the sense that the appellant had submitted, and the Tribunal understood, that this was what the diary was relevant to). This was an occasion on which the Tribunal was "under an obligation to obtain a translation of a particular document which is in a foreign language and whose relevance has been explained" to it. To fail to do so was to act without power, because the Migration Act should be construed as not permitting the Tribunal to distinguish against the appellant on the ground of his race, language, or national or social origin, by refusing to take into account a document of his making because it is not in the English language. It is one thing for the Tribunal to request that documents be translated into English. It is quite another to refuse to take into account a document that is asserted to be relevant to a specific issue on the ground that it has not been so translated. O'Loughlin J dissented. In doing so, however, His Honour observed that " [t]here is room for a variety of views — so much so that I do not think it appropriate for this Court to lay down inflexible guidelines ": [2002] FCA 56 at [44] , 116 FCR at 331.


case_text: The Minister submitted that it is clearly established that it is for the appellant to make out his case before the Tribunal: Abebe v Commonwealth [2004] HCA 32 ; (1999) 197 CLR 510 at 576 [187] per Gummow and Hayne JJ. If the Tribunal cannot be satisfied on the basis of the material presented that the appellant's claims are genuine it does not have any duty to make further inquiries: Minister for Immigration & Multicultural Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 at [19] per Gleeson CJ, at [43] per Gummow and Hayne JJ, at [124] per Callinan J, or to investigate the appellant's claims: NAYU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 528 at [18] [21] per Jacobson J. The Minister submitted that, for these reasons and those outlined in [9] [11] above, the findings of the Tribunal and the Federal Magistrate's Court reveal no error.


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


case_title: NAYU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 528


case_text: The notice of appeal filed on 2 May 2008 contains four grounds of appeal. As was the case in the court below, the grounds of appeal do not appear to relate to the Tribunal's decision. The grounds are cast in very general terms and lack particulars. Moreover, apart from the first ground, they fail to identify any error in the judgment of his Honour below which is properly the subject of the appeal. Instead, they invite this Court to re-consider the reasons of the Tribunal: Sathiyanathan v Minister for Immigration & Multicultural Affairs [2000] FCA 210 at [10] . 14 The Minister filed written submissions dealing with each of the grounds of appeal in the terms set out in [15] [20] below. 15 The first ground of appeal asserts that his Honour erred in failing to find that the Tribunal erred when it 'wrongly applied the law to the facts as found in relation to the seriousness of harm that constitutes persecution as a member of a particular social group or religious persecution'. As his Honour noted, this allegation appeared to relate to another case, as the appellant did not make claims to fear persecution on the basis of his religion or membership of a particular social group. Further, the Tribunal did not make any findings as to the seriousness of the harm the appellant claimed to fear, because it could not be satisfied, on the limited evidence before it that the claimed harm had in fact occurred. The Minister submitted that it was for the appellant to make out his case to the Tribunal, but he failed to do so. 16 The second ground of appeal appears to raise three complaints. First, the appellant claims that the Tribunal failed to provide 'more opportunity to respond'. The appellants did not appear at the scheduled Tribunal hearing on 17 August 2007 and did not request that the hearing be adjourned or re-scheduled. In any event, the Tribunal complied with the statutory requirements and was entitled to determine the matter pursuant to s 426A of the Act. 17 The second ground of appeal also alleges that the Tribunal generalised the appellant's claims and failed to carry out the 'real chance' test. The essential basis of the Tribunal's decision was the inability of the Tribunal to reach the state of satisfaction to grant the appellant a protection visa as required by s 36(2) and s 65(1) of the Act. The Minister submitted that the Tribunal clearly set out and considered the claims advanced by the appellant and ultimately rejected them because it was unable to reach the requisite state of satisfaction required by the Act.


case_text: The second ground could also be seen as an allegation that the Tribunal failed to comply with the requirements of s 424A of the Act. As was the case before his Honour below, the Minister submitted that the appellant has failed to identify any 'information' for the purposes of s 424A. The reason for the Tribunal's decision was simply the general nature of the appellant's claims and lack of details identifying that the appellant had suffered any harassment, persecution or harm for a Convention related reason. Such matters are thought processes and not within the scope of s 424A(l): SZBYR v Minister for Immigration & Citizenship [2007] FCA 26 ; (2007) 235 ALR 609 at [18] ; SZEFM v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 78 at [23] per Bennett J and cases there cited.


case_title: SZEFM v Minister for Immigration & Multicultural& Indigenous Affairs [2006] FCA 78


case_outcome: applied

case_text: An account of profits is an alternative remedy to damages: see Patents Act 1990 , s 122(1). Its purpose is not to compensate the patentee, nor to punish the infringer, but rather to prevent the unjust enrichment of the infringer at the expense of the patentee: Dart Industries Inc v Décor Corporation Pty Ltd [1993] HCA 54 ; (1993) 179 CLR 101 at 110-111. By reference to the judgment in Dart v Décor [1993] HCA 54 ; 179 CLR 101 and the cases there cited, I have approached the calculation of the account of profits in this case on the following basis. The infringers should account for the actual profit that they have gained from the infringement. In calculating those profits, it is appropriate to deduct costs directly attributable to selling and delivering infringing articles from the revenue made from such sales and deliveries. It may be appropriate to deduct a proportion of general overhead costs such as plant, equipment and managerial costs. The deduction of such costs depends upon their being shown to have been attributable to the sales, the onus for which demonstration is upon the infringers. The account of profits is a discretionary remedy and the Court may decline to grant the remedy in respect of profits made by the infringer during the period in which it was unaware of the applicant's rights. In this latter respect, see in particular Colbeam Palmer v Stock Affiliates Pty Ltd [1968] HCA 50 ; (1968) 122 CLR 25 at 33-36 and the Patents Act 1990 , s 123 which is in the following terms: (1) A court may refuse to award damages, or to make an order for an account of profits, in respect of an infringement of a patent if the defendant satisfies the court that, at the date of the infringement, the defendant was not aware, and had no reason to believe, that a patent for the invention existed. (2) If patented products, marked so as to indicate that they are patented in Australia, were sold or used in the patent area to a substantial extent before the date of the infringement, the defendant is to be taken to have been aware of the existence of the patent unless the contrary is established. (3) Nothing in this section affects a court's power to grant relief by way of an injunction. 78 There are two possible reasons why these money sums should be varied. The first is one recognised by Colbeam v Palmer [1968] HCA 50 ; 122 CLR 25 and the Patents Act , s 123. The applicant's solicitors first wrote to the respondents on 23 February 2005, informing them of the patent and requiring undertakings. If one took 23 February 2005 as the date from which to calculate the profits, there would be no claim against the second and third respondents, the claim against the fourth respondent would be $25,051, the claim against the first respondent would be the same $83,089 and the claim against the sixth respondent would be the same $54. 79 It is important to note that in Colbeam v Palmer [1968] HCA 50 ; 122 CLR 25 , it was stated that it was for the moving party to prove the unconscionability of the profits, and therefore for the moving party that the defendant knew of the moving party's rights. The Patents Act 1990 , s 123 clearly involves discretion as to the question of refusing or discounting the award for the matters there identified. Also, s 123(2) makes plain that the defendant is to be taken to have been aware of the existence of the patent unless the contrary is shown, if patented products marked so as to indicate they are patented in Australia were sold or used in the patent area to a substantial extent before the date of the infringement. 80 The evidence discloses that the applicant's floor materials embodying the invention the subject of the patent had been distributed in Australia since late 1997. The evidence discloses that the introduction of those panels revolutionised the trade in laminated flooring and greatly expanded the market for such flooring. The evidence discloses that by 2003, when the relevant infringements commenced, the applicant's floor panels, or imitations of them, commanded over 75% of the Australian market for laminated panels. The evidence discloses that in 2003, the applicant's Australian agent and distributor sold about 312,000 packs of the floor panels, amounting to over 560,000 square metres of flooring. The evidence discloses that the panels were described as the "industry standard" in the October 2004 issue of a publication called " Flooring Australia and New Zealand ". The evidence discloses that the packs of the applicant's panels were, and have been since prior to 2003, clearly marked with the words "patented technology", with the individual panels bearing the number of the applicant's European and United States patents. The evidence discloses that since the grant of the Australian patent on 23 November 2003, the relevant promotional material has also carried the number of the Australian patent. The evidence discloses that the fact that the applicant's floor panels are patented has always been a prominent and important feature of promotions of the panels through sales representatives, exhibitions and distribution of catalogues and brochures. The evidence discloses that the website of the applicant's Australian agent and distributor has promoted the applicant's relevant patent rights since at least early 2003. 81 The Huili respondents have not adduced any evidence in respect of the above matters. They have not established that they were not aware of the applicant's rights prior to the receipt of the letter of demand of 23 February 2005. A general assertion was made in a letter in March 2005, sent in response to the letter of demand, but that statement has not been supported in these proceedings by any direct evidence. Further, the first to fourth respondents did not plead any such lack of knowledge in their defence, which was prepared when they were represented in the proceeding by solicitors and, for a time, by experienced patent counsel. This was to be contrasted with the defence of the fifth respondent, which was prepared earlier and which was available to the first to fourth respondents and which did raise the issue. 82 In all the above circumstances, I am satisfied that under s 123 I should not make any discount by reason of innocent infringement. Indeed, if the matter were to be judged by Colbeam v Palmer [1968] HCA 50 ; 122 CLR 25, I would be prepared to conclude, based on inferences from all the above matters, that the first to fourth and sixth respondents were aware of the patent of the applicant during the course of infringement. My willingness to draw these inferences is in part based on the lack of any evidence brought forward on behalf of any of the first to fourth and sixth respondents of their ignorance prior to February 2005. 83 Also, given the state of the documentation provided by the respondents to which I have earlier referred, to the extent that there is a discretion within s 123 to deal with innocent infringement and to reduce the account of profits by the reason thereby, I am not able to be confident that the respondents have so approached the conduct of this case that they should be entitled to any discount under s 123. This last consideration is a separate consideration from the matters of proof and evidence to which I have earlier referred. 84 The second possible basis for reduction of the profits is the claim made by Mr Sun that the fifth respondent owes him or the first respondent sums of money as reflected in the cross-claim. During the course of the hearing, Mr Sun made no attempt to contest any aspect of the report of Mr Dunstan. He concentrated his submissions on what he said was the injustice of being held liable for an account of profits in circumstances where he has not been paid for a significant amount of the supplies which he or his associated entities gave to the fifth respondent. In this respect, Mr Sun made reference to the detailed material and identified a series of invoices totalling $138,901. They were as follows: Invoice Amount (ex GST) S134 $20,505 S136 $23,275 S163 $22,959 S166 $25,362 4094 $23,396 S190 $23,404 85 This total differs from the $158,000 referred to by Mr Sun in the hearing and also differs from the sum alleged in the cross claim. 86 The Huili respondents are liable to account for the profits made at the wholesale level of sales. The fifth respondent was liable to account for its profit at the next level of sale, retail sale. The fifth respondent has accounted for those profits in the order which it submitted to by consent on 22 March 2007. There is no reason in principle why the applicant should not be entitled to both the wholesale profit and the retail profit if attributable, as they are, to the infringement.


case_text: An account of profits is an alternative remedy to damages: see Patents Act 1990 , s 122(1). Its purpose is not to compensate the patentee, nor to punish the infringer, but rather to prevent the unjust enrichment of the infringer at the expense of the patentee: Dart Industries Inc v Décor Corporation Pty Ltd [1993] HCA 54 ; (1993) 179 CLR 101 at 110-111. By reference to the judgment in Dart v Décor [1993] HCA 54 ; 179 CLR 101 and the cases there cited, I have approached the calculation of the account of profits in this case on the following basis. The infringers should account for the actual profit that they have gained from the infringement. In calculating those profits, it is appropriate to deduct costs directly attributable to selling and delivering infringing articles from the revenue made from such sales and deliveries. It may be appropriate to deduct a proportion of general overhead costs such as plant, equipment and managerial costs. The deduction of such costs depends upon their being shown to have been attributable to the sales, the onus for which demonstration is upon the infringers. The account of profits is a discretionary remedy and the Court may decline to grant the remedy in respect of profits made by the infringer during the period in which it was unaware of the applicant's rights. In this latter respect, see in particular Colbeam Palmer v Stock Affiliates Pty Ltd [1968] HCA 50 ; (1968) 122 CLR 25 at 33-36 and the Patents Act 1990 , s 123 which is in the following terms: (1) A court may refuse to award damages, or to make an order for an account of profits, in respect of an infringement of a patent if the defendant satisfies the court that, at the date of the infringement, the defendant was not aware, and had no reason to believe, that a patent for the invention existed. (2) If patented products, marked so as to indicate that they are patented in Australia, were sold or used in the patent area to a substantial extent before the date of the infringement, the defendant is to be taken to have been aware of the existence of the patent unless the contrary is established. (3) Nothing in this section affects a court's power to grant relief by way of an injunction.


case_text: Moore J did not agree with the majority on the question of futility of enforcement. His Honour was of the opinion that both long-standing common law authorities and recent High Court dicta support the proposition that relief should not be granted unless it would be effectual (or unless it there are reasonable grounds to believe an injunction will be effacious in the future). In support of this proposition, Moore J cited the following authorities: Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510 at [31] per Gleeson CJ and McHugh J: The term "matter" has meaning only in the context of a legal proceeding, as the passages from South Australia v Victoria , Re Judiciary and Navigation Acts, Stack v Coast Securities (No 9) Pty Ltd and Attorney-General (NSW) v Commonwealth Savings Bank demonstrate. A "matter" cannot exist in the abstract. If there is no legal remedy for a "wrong", there can be no "matter". A legally enforceable remedy is as essential to the existence of a "matter" as the right, duty or liability which gives rise to the remedy. Without the right to bring a curial proceeding, there can be no "matter". If a person breaches a legal duty which is unenforceable in a court of justice, there can be no "matter". Such duties are not unknown to the law. For example, in Australian Broadcasting Corp v Redmore Pty Ltd , this court had to consider the effect on a contract of a statutory provision which prohibited the making of the contract without the approval of a minister. The prohibition arose in a context where s 8(1) of the relevant Act imposed a duty on the board of the appellant to ensure that it did not contravene any provision of the Act but s 8(3) provided that "[n]othing in this section shall be taken to impose on the Board a duty that is enforceable by proceedings in a court". Although the point did not arise for decision, it is plain that breach of the prohibition was incapable of giving rise to a "matter". (footnotes omitted) Truth About Motorways v Macquarie Infrastructure Investment Management Ltd [2000] HCA 11 ; (2000) 200 CLR 591 at [49] per Gaudron J: Absent the availability of relief related to the wrong which the plaintiff alleges, no immediate right, duty or liability is established by the court's determination. Similarly, if there is no available remedy, there is no administration of the relevant law. Thus, as Gleeson CJ and McHugh J pointed out in Abebe v Commonwealth , "[i]f there is no legal remedy for a `wrong', there can be no `matter' ". Bass v Permanent Trustee [1999] HCA 9 ; (1999) 198 CLR 334 at [47] : Because the object of the judicial process is the final determination of the rights of the parties to an action, courts have traditionally refused to provide answers to hypothetical questions or to give advisory opinions. The jurisdiction with respect to declaratory relief has developed with an awareness of that traditional attitude. In Re F (Mental Patient: Sterilisation ), Lord Goff of Chieveley said that: a declaration will not be granted where the question under consideration is not a real question, nor where the person seeking the declaration has no real interest in it, nor where the declaration is sought without proper argument, for example, in default of defence or on admissions or by consent. By "not a real question", his Lordship was identifying what he called the "hypothetical or academic". The jurisdiction includes the power to declare that conduct which has not yet taken place will not be in breach of a contract or a law and such a declaration will not be hypothetical in the relevant sense. Barwick CJ pointed this out in Commonwealth v Sterling Nicholas Duty Free Pty Ltd. However, that is not the present case. (footnotes omitted)


case_title: Bass v Permanent Trustee [1999] HCA 9 ; (1999) 198 CLR 334


case_text: Further, one cannot ignore the public interest nature of the claim and the complete recognition by the Parliament of that type of claim and of the lack of wide international recognition of Australia's claim to the relevant part of Antarctica: see the majority of the Full Court reasons at [2006] FCAFC 116 ; 154 FCR 425 and [21] [24]; and see also Citron v Zündel (No 4) (2002) 41 CHRR D/274 at [298] [301]. 53 In the light of the reasons of the majority of the Full Court, I cannot conclude that the practical difficulty (if not impossibility) of enforcement is a reason to withhold relief. 54 On the material placed before the Court, I am satisfied that the respondent has contravened ss 229, 229A, 229B, 229C, 229D and 230 of the EPBC Act in relation to Antarctic minke whales and fin whales by killing, injuring, taking and interfering with them and the treating and possessing of them and by injuring, interfering with and treating and possessing humpback whales and that, unless restrained, it will continue to kill, injure, take and interfere with them, and treat and possess them.


case_text: Australia's claim to sovereignty over the Australian Antarctic Territory is recognised only by four nations (New Zealand, France, Norway and the United Kingdom), themselves with asserted (and otherwise disputed) claims over various parts of the Antarctic land mass. Japan rejects Australia's purported exercise of jurisdiction over waters that are considered by Japan to be the high seas. This is not a ground for invalidity of the EPBC Act: the sovereign claim by Australia to the Australian Antarctic Territory is not a matter capable of being questioned in this Court in this proceeding: cf Mabo v Queensland (No 2) [1992] HCA 23 ; (1992) 175 CLR 1. These matters of sovereignty and international recognition (and lack of extensiveness thereof) can be taken to have been before, and well recognised by, Parliament when it enacted the EPBC Act.


case_text: The applicant submitted that a broad range of remedies are appropriate in attempting to enforce an order for contempt. In this regard, the applicant cited the case of Simonton v Australian Prudential Regulation Authority [2006] FCAFC 118 ; (2006) 152 FCR 129, in particular [70] [74].


case_title: Truth About Motorways v Macquarie Infrastructure Investment Management Ltd [2000] HCA 11 ; (2000) 200 CLR 591


case_title: Vincent v Peacock [1973] 1 NSWLR 466

case_text: The question of futility can, however, also be seen from a perspective of disobedience. To do so requires the setting to one side of the refusal by Japan to recognise Australia's claim to Antarctica. It is not for this Court to question Australia's claim or Parliament's mandate in the EPBC Act, which is based on Australia's claim. Thus, this perspective can be seen to be relevant for this Court to take into account (even if from another perspective, for instance that of Japan, the perspective is flawed). So viewed, it (futility arising from disobedience and an inability to bring about obedience) may bring to mind what was said by Hardie, Hutley and Bowen JJA in Vincent v Peacock [1973] 1 NSWLR 466 at 468: In our opinion, it is not a ground for refusing an injunction that it would not have a practical effect, where its failure to have a practical effect is because the defendant disobeys it.


case_outcome: related

case_text: In their written submissions the respondents submitted that, for the proper attainment of justice and enforcing the respondents' rights in these proceedings, it was appropriate for the respondents to have: (a) retained and incurred the fees of both senior and junior counsel; (b) engaged and incurred the costs of the expert forensic accountant, Mr Lytras; (c) engaged and incurred costs of the expert valuer, Mr Harrison. These submissions are not disputed by the applicants. Indeed I note that both applicants and respondents retained senior counsel, and engaged experts to provide expert evidence including forensic and valuation evidence. However, whether these costs were incurred for the proper attainment of justice and enforcing the respondents' rights is, in default of agreement, a matter for the taxing officer under O 62 r 19 Federal Court Rules rather than this Court: Fubilan Catering Services Ltd v Compass Group (Australia) Pty Ltd [2007] FCA 1497 at [2] . Issues requiring consideration 5 Three issues remain in dispute between the parties. These issues are: 1. The basis upon which the respondents' costs, payable by the applicants, should be assessed. The respondents have submitted that the applicants should be ordered to pay the costs of the respondents in the proceedings, including the cross-claim which was defended on the basis of the misrepresentation case, and including any reserved costs, on an indemnity basis. The applicants have submitted that these costs should be paid on the standard basis, namely party to party. 2. Liability for costs related to the orders of 18 July 2006 ( Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd [2006] FCA 920) and the directions hearing of 21 July 2006. 3. Release of the cheque of $150,000 and bank guarantee of $75,000 provided by the first and third applicants as security for the respondents' costs. 21 The proximate reason for the adjournment of the trial on 18 July 2006 was, as I explained in Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd [2006] FCA 920 , the inability of the applicants to properly consider additional witness statements totalling some 3785 pages in length, delivered over 10 days in the lead up to the scheduled commencement of the trial. While I note the late completion of Mr Robertson's expert reports, there is, in the absence of evidence, no basis for the respondents' claim (in considerable hindsight) that the absence of those reports meant that the applicants were not in a position to prove their case had the hearing proceeded as scheduled on 17 July 2006. The practical effect of the vacation of the trial dates was that both applicants and respondents were able to file, at later dates, supplementary evidence including further expert reports as permitted by my orders of 9 August 2006. Indeed I also note that, in accordance with my orders of 9 August 2006, the respondents filed considerable additional evidence upon which they relied at trial, including an affidavit of Mr Burns (filed 28 July 2006), affidavits of Mr Strahley (filed 11 August 2006 and 18 August 2006), and affidavits of Mr Harrison, Mr Breed and Mr Bailey (filed 18 August 2006). 22 In my view the appropriate order is that the applicants should have their costs thrown away by the adjournment of the trial on 18 July 2006 on a party to party basis, as well as the costs of the hearing of 21 July 2006. 23 The respondents have submitted that they should have the benefit of a cheque and bank guarantee in the combined amount of $225,000 as security for their costs pursuant to the orders made on 1 June 2006 in the sum of $150,000 and on 5 December 2006 in the sum of $75,000. The applicants have submitted that the moneys paid into Court as security for costs should not be released without the ascertainment of the actual costs payable by the applicants to the respondents.


case_text: The following issues do not appear to be in contention: 1. The applicants in their written submissions conceded the general principle that costs follow the event, and that subject to consideration of a number of issues the applicants are not in a position to argue against an order that they pay the respondents' costs in these proceedings, including reserved costs. 2. On 4 August 2006 I made orders determining two notices of motion, one brought by each party, concerning further disclosure ( Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 2) [2006] FCA 1001). Each party had success on its motion. I reserved the costs of both notices of motion, and the applicants submit that no costs order should be made on either notice of motion. This approach is not contested by the respondents, and I propose to adopt it. 3. In relation to the hearings of 6 and 9 November 2006: • On 6 November 2006 I made directions to facilitate the bringing of an application for security for costs by the respondents, and reserved the costs of that directions hearing. • On 9 November 2006 I dismissed the application for security for costs brought by the respondents, and ordered that costs be reserved: Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 3) [2006] FCA 1498. • The applicants submitted that the security for costs application was a discrete application lost by the respondents and that they should have the costs of the directions hearing on 6 November and the costs of the application for security for costs having regard to the order of 9 November 2006. This submission is not contested by the respondents in their written submissions. I accept the submissions of the applicants and order that the costs of the applicants of the hearings of 6 November 2006 and 9 November 2006 be paid by the first and second respondents on a party to party basis. 4. In their written submissions the applicants also conceded that they were not in a position to resist an order that they pay the respondents' costs for the remaining interlocutory hearings, with the exception of costs associated with orders made on 18 July 2006 and 21 July 2006. I will deal with these costs later in the judgment.


case_title: Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 3) [2006] FCA 1498


case_text: The respondents made detailed submissions in support of their contention that the applicants should be ordered to pay the costs of the respondents on an indemnity basis. In summary the respondents submitted that assessment of costs on an indemnity basis was warranted in the circumstances of this case because: a. the proceedings were based on serious unfounded assertions of impropriety, lies and deceit against the first and second respondents, including a very serious assertion against the second respondent that he attempted to destroy relevant records. These assertions were maintained by the applicants throughout the proceedings, notwithstanding that there was no evidentiary or factual foundation for them; b. relief was sought against the second respondent as knowingly concerned in the alleged misleading and deceptive conduct when no proper case was pleaded for such relief, and indeed the Court found that that case failed at the threshold; c. the applicants sought to maintain the serious allegations in para 19 of the Further Amended Statement of Claim upon a distorted record produced on the instructions of the second applicant; d. this is a case warranting the making of an order for indemnity costs within the principles articulated in Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 at 232-234; e. it is a fundamental premise that serious allegations of propriety should not be made in the absence of any evidentiary or factual foundation for them; f. it is not enough that there is some hope to prove such serious allegations out of the mouths of the witnesses for the respondents; g. the only characterisation of the conduct of the applicants is that they chose to deliberately adopt the course of making serious and wanton assertions of impropriety to attack the first and second respondents. 8 The applicants submitted that indemnity costs were not warranted in the circumstances of this case because, in summary: a. in all matters in which a failure to disclose relevant information is alleged under s 52 Trade Practices Act 1974 (Cth) ("the Act ") there will be elements of impropriety and deceit; b. had the Court accepted the second applicant's version of events in relation to the provision of Block Summary data, actionable deception would have been found; c. no allegation of fraud was pleaded against the respondents; d. the purpose of an award of indemnity costs is not to punish an unsuccessful litigant because the case was lost on the basis of adverse findings of credit or fact; e. the applicants did have evidentiary or factual foundations in making the allegations contained in the Further Amended Statement of Claim, namely the packing shed records and the various scenarios. The applicants failed because of factual findings relating to those issues; f. to the extent that the respondents' claim for indemnity costs relies upon a claim that the applicants ought never have made the relevant allegations, this imports a notion of pre-knowledge on the part of the unsuccessful litigant that the allegation advanced by the litigant is not only false but known by him to be false. This was not the case here because the allegations advanced by the applicants were not simply allegations of oral conversations, but were mixed allegations relying upon documents, conduct and oral representations. It could not be said that the allegations pleaded were "groundless" because the ultimate proof of the allegations depended upon a finding by the Court as to the context of certain oral representations alleged; g. accordingly, costs of the action should be awarded to the respondents on a party to party basis. 9 The discretion of the Court to award costs is found in s 43 Federal Court of Australia Act 1976 (Cth) which provides as follows: (1) Subject to subsection (1A), the Court or a Judge has jurisdiction to award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs shall not be awarded. ...... (2) Except as provided by any other Act , the award of costs is in the discretion of the Court or Judge. 10 Principles applicable to the award of indemnity costs have been considered on numerous occasions in this Court, including by the Full Court. As observed by the Full Court in De Alwis v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 77: [6] The purpose of an order for costs is to indemnify or compensate the person in whose favour it is made, not to punish the person against whom it is made: see Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534 ; Ohn v Waltob (1995) 36 NSWLR 77 at 79 per Gleeson CJ. The usual rule is that costs should be on a party-party basis, but that the Court has a wide and unfettered discretion to award costs on an indemnity basis in appropriate cases in particular circumstances: see Colgate-Palmolive v Cussons (1993) 46 FCR 225 at 231-234. [7] In deciding whether to award indemnity costs each exercise of discretion depends on the particular facts. Indemnity costs can be awarded where it appears that a proceeding is commenced or continued in circumstances where the applicant properly advised should have known there was no chance of success... 11 Circumstances warranting the Court in departing from the usual course of ordering costs on a party to party basis were described by Sheppard J in Colgate-Palmolive at 233 as including: • making allegations of fraud knowing them to be false; • making irrelevant allegations of fraud; • evidence of particular misconduct that causes loss of time to the Court and to other parties; • the fact that proceedings were commenced or continued for some ulterior motive or in wilful disregard of known facts or clearly established law; • the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions; and • an imprudent refusal of an offer to compromise.


case_text: Principles applicable to the award of indemnity costs have been considered on numerous occasions in this Court, including by the Full Court. As observed by the Full Court in De Alwis v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 77: [6] The purpose of an order for costs is to indemnify or compensate the person in whose favour it is made, not to punish the person against whom it is made: see Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534 ; Ohn v Waltob (1995) 36 NSWLR 77 at 79 per Gleeson CJ. The usual rule is that costs should be on a party-party basis, but that the Court has a wide and unfettered discretion to award costs on an indemnity basis in appropriate cases in particular circumstances: see Colgate-Palmolive v Cussons (1993) 46 FCR 225 at 231-234. [7] In deciding whether to award indemnity costs each exercise of discretion depends on the particular facts. Indemnity costs can be awarded where it appears that a proceeding is commenced or continued in circumstances where the applicant properly advised should have known there was no chance of success...


case_title: Derry v Peek (1889) 14 App Cas 337

case_text: Turning now to the case before me, I do not accept the submission of the applicants that in all matters in which a failure to disclose relevant information is alleged under s 52 of the Act there will be elements of impropriety and deceit. It is well settled that, unlike in relation to a claim of fraud ( Derry v Peek (1889) 14 App Cas 337), the intent of a representor is not relevant in the context of a s 52 claim (Stephen J in Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216 at 228, Gibbs CJ in Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191 at 197). Although as observed by Miller the courts have been more ready to find a breach of s 52 where an intention to mislead can be inferred (see cases cited in Miller RV, Miller's Annotated Trade Practices Act (28th ed, Thomson, 2007) at [1.52.35]), proof of an intent to deceive is not required under s 52.


case_text: In relation to the claims of the applicants against the second respondent, Mr Strahley, I also consider that, on balance, the case did not exhibit special or unusual features warranting the Court exercising its discretion to award indemnity costs. While the applicants' claim against the second respondent for accessorial liability pursuant to s 75B of the Act failed at the threshold, and while I consider that the applicants' assertions against Mr Strahley with respect to his alleged attempts to destroy packing shed records were without foundation, nonetheless: 1. As a general proposition it is not uncommon in a claim for misleading or deceptive conduct against a corporation that a claim for accessorial liability against the managing director of that corporation will be commenced, as occurred in this case. 2. The applicants' case against Mr Strahley was intertwined with their case against the first respondent an inevitable approach in my view given Mr Strahley's position as managing director of the first respondent. 3. Although throughout the proceedings the applicants (in particular the second applicant) made what I consider to be unnecessarily dramatic and inaccurate declarations of impropriety on the part of the second respondent with respect to the alleged attempts of the second respondent to destroy records, these assertions were, although serious, not pleaded as part of the case the respondents had to meet. This point was also made by Counsel for the applicants during the proceedings (TS 17 July 2006 p 11 ll 8-13). 4. I do not consider that the applicants, in making assertions of impropriety against the second respondent, did so with an ulterior motive or in the knowledge that the assertions were false. 5. This is not a case where the applicants, although alleging accessorial liability, did not press their claims against the second respondent so as to warrant indemnity costs for failure to properly abandon the claims (cf Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602). 17 Accordingly, I am not persuaded that the circumstances warrant the costs of the second respondent being paid on an indemnity basis. 18 On 18 July 2006 I ordered that the trial of the substantive proceedings be adjourned until Friday 21 July 2006 at 10.15 am for further directions, and that costs be reserved.


case_text: In their written submissions the respondents submitted that, for the proper attainment of justice and enforcing the respondents' rights in these proceedings, it was appropriate for the respondents to have: (a) retained and incurred the fees of both senior and junior counsel; (b) engaged and incurred the costs of the expert forensic accountant, Mr Lytras; (c) engaged and incurred costs of the expert valuer, Mr Harrison. These submissions are not disputed by the applicants. Indeed I note that both applicants and respondents retained senior counsel, and engaged experts to provide expert evidence including forensic and valuation evidence. However, whether these costs were incurred for the proper attainment of justice and enforcing the respondents' rights is, in default of agreement, a matter for the taxing officer under O 62 r 19 Federal Court Rules rather than this Court: Fubilan Catering Services Ltd v Compass Group (Australia) Pty Ltd [2007] FCA 1497 at [2] . Issues requiring consideration 5 Three issues remain in dispute between the parties. These issues are: 1. The basis upon which the respondents' costs, payable by the applicants, should be assessed. The respondents have submitted that the applicants should be ordered to pay the costs of the respondents in the proceedings, including the cross-claim which was defended on the basis of the misrepresentation case, and including any reserved costs, on an indemnity basis. The applicants have submitted that these costs should be paid on the standard basis, namely party to party. 2. Liability for costs related to the orders of 18 July 2006 ( Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd [2006] FCA 920) and the directions hearing of 21 July 2006. 3. Release of the cheque of $150,000 and bank guarantee of $75,000 provided by the first and third applicants as security for the respondents' costs.


case_title: Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216


case_text: Notwithstanding this point however, I am not persuaded that the circumstances of this case are such as to warrant a departure from the usual practice of the Court in awarding costs so far as the costs of the first respondent are concerned. I form this view because: 1. I do not consider that this case exhibited special or unusual features so as to justify the court exercising its discretion in this way. 2. I accept the submission of the applicants that the case turned on factual findings, which in this case were against the applicants. To that extent I do not consider that the applicants' case against the first respondent was "hopeless" or had no chance of success. 3. I accept the submission of the applicants that their case was based on evidentiary or factual foundations, although as my judgment in the substantive case demonstrates, I was not persuaded by the applicants' submissions. 4. I consider that, as against the first respondent, the applicants, in particular the second applicant, had an honest belief in the soundness of their case (cf Ian David Morwood v Chemdata Pty Ltd [1998] FCA 194).


case_text: In InterTAN Inc v DSE (Holdings) Pty Ltd [2005] FCAFC 54 at [11] , the Full Court noted additional categories of cases in which indemnity costs can be awarded as including: • where the bringing of an application is "high-handed"; • where an application has "no chance of success" or "hopeless"; • where an application is "unnecessary"; • where an application is brought and prosecuted "not for the bona fide purpose of protecting and enforcing a legal right, but to achieve an ulterior or extraneous purpose"; • where there has been "some relevant delinquency on the part of the unsuccessful party"; and • where the justice of the case warrants such an order. 13 The categories of cases I have listed are not exhaustive. The Court may exercise its discretion to award indemnity costs in circumstances falling outside these categories where there are some special or unusual features in a case so as to justify the Court exercising its discretion in this way ( InterTAN Inc [2005] FCAFC 54 at [11] ).


case_title: Latoudis v Casey [1990] HCA 59


case_title: Ohn v Waltob (1995) 36 NSWLR 77


case_title: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191


case_text: is possible, I suppose, that work as purportedly invoiced was indeed undertaken and that the omission of Vanuatu client income might be referable to an innocent mistake as to a requirement to declare the same in New Zealand. In the absence of corroboration, I am not though prepared to find these facts proved. In so concluding I accept that Mr Russell is not at all obliged to prove to demonstration that Ancath undertook such work, only on the balance of probabilities that it did so. Nor is it the law that an appellant taxpayer can only discharge the onus of proof, even on the balance of probabilities, by the tendering of corroborated evidence: Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1. It is just that, recalling on whom the onus lies and applying that standard of proof, I did not regard Mr Russell's uncorroborated evidence on the subject as sufficiently reliable to admit of a conclusion that these facts were proved. I have reached these conclusions without taking into account Mr Russell's New Zealand criminal history, an official copy of which was tendered by the Commissioner in the course of Mr Russell's cross examination. Mr Russell has been convicted in that country of numerous offences of dishonesty including using a document with intent to defraud and forgery. He was, I thought, reluctant to acknowledge his criminal past in cross examination although his statement that it concerned an era in his life that he had sought to put behind him and forget was understandable enough. He also voiced disagreement with his having been truly guilty of some at least of the offences in respect of which convictions were recorded. Mr Russell's criminal history in its own right does give pause for thought about his credibility. However, the divergence in accounts as between evidence in the Industrial Commission and this Court with regard to his control over Ancath engendered in any event my disposition not to act on his uncorroborated testimony as to Ancath's undertaking work for Vanuatu based clients. For completeness, I should record that Mr Russell exhibited to one of his affidavits a letter dated 11 January 2008 addressed to Ancath (by its new name, Juan International) marked for Mr Miedema's attention from the National Bank of New Zealand which stated that a debit card issued on 24 November 2004 for use by Mr Russell had never been used. The letter says nothing as to the position in relation to the use of such a debit card during the period of interest in the appeals. Further, the letter is addressed not to any New Zealand address associated with Ancath or Mr Miedema but rather to the company in Australia at a post office box at Sarina. I did not therefore regard the letter as offering any corroboration with respect to the account Mr Russell gave concerning Ancath's affairs and the role he played.


case_text: the institution of an appeal against an objection decision by the Commissioner, the Court is "seized of the decision in its entirety": Commissioner of Taxation v ANZ Savings Bank Ltd [1994] HCA 58 ; (1994) 181 CLR 466 at 476 (ANZ Savings Bank Case). In that same case (ibid) it was said of a statutory predecessor of s 14ZZP of the TAA, s 199 of the ITAA 1936 that: This power is expressed in the widest terms. An appeal relates to the objection decision made by the Commissioner albeit a taxpayer is dissatisfied with only part of that decision. A power to make such order as the Court thinks fit is clearly not unconstrained but there is nothing in s 199 to suggest that the Federal Court may not make such order in relation to the objection decision as is appropriate in all the circumstances once the subject matter of the taxpayer's dissatisfaction with the assessment has been resolved. At the time those remarks were made, the language of s 199 of the ITAA 1936 was in materially identical terms to those of s 14ZZP of the TAA. Section 199 came to be in that form following amendments made to that section by s 88 of the Taxation Boards of Review (Transfer of Jurisdiction) Act 1986 (Cth). In the ANZ Savings Bank Case (at 479) it was further observed: The question for the Court hearing an appeal is not whether the grounds of objection have been made out but whether the taxpayer has satisfied the burden cast by s.190(b) of proving that the assessment is excessive. ... Since the Court is concerned to determine whether the amounts assessed as taxable income are excessive , the Commissioner must be able to raise for the Court's determination the deductions properly to be allowed in the light of the Court's decision as to assessable income. [Emphasis added] The burden once cast on an appellant by s 190(b) of the ITAA 1936 is now the subject of like provision by s 14ZZO(b) of the TAA. Here, I have resolved, adversely to him as it transpires, the subject matter of Mr Russell's dissatisfaction with the 2001 year income tax assessment and I have determined that that assessment is not excessive. What then becomes the appropriate order to make in all of the circumstances bearing in mind that the power, though expressed in the widest terms, is not unconstrained?


case_text: being so, the "results test" then falls to be answered. That test is found in s 87 - 18 of the ITAA 1997. In IRG Technical Services Pty Ltd v Commissioner of Taxation [2007] FCA 1867 ; (2007) 165 FCR 57 at 70, [36] , Allsop J (as his Honour then was) observed of that section that its elements "were to be understood against the background of the jurisprudence concerning independent contractors". In so doing, his Honour referred with approval to an earlier observation made by Lindgren J in Commissioner of Taxation v Metaskills Pty Ltd [2003] FCA 766 ; (2003) 130 FCR 248 at 254, [28] , that, "Broadly speaking, an individual or entity, who or which is an 'independent contractor' under traditional concepts should meet the results test.". Their Honours were not in these cases promoting the use of the common law as a substitute for the language of the statute, for that would clearly be erroneous. It is just that, for example, the phrase "the income is for producing a result" in s 87 - 1 (a) and s 87 - 18 (3)(a) of the ITAA 1997 obviously draws upon one of the traditional touchstones for distinguishing between a contract for service and a contract of service. Thus guidance offered by cases decided at common law as to whether a payment is or is not for the production of a result is relevant. That this is what Parliament intended is confirmed by recourse to secondary materials, as Allsop and Lindgren JJ note in their respective judgements. Approaching the matter this way, I respectfully agree with their Honours observations in relation to s 87 - 18 . As to the 80% rule, Lindgren J made the following observation in Commissioner of Taxation v Metaskills Pty Ltd [2003] FCA 766 ; (2003) 130 FCR 248 at 253, [26] , with which I respectfully agree: Subsection 87-15(3) distinguishes between two situations, namely, where less than 80% of an individual's personal services income (not including certain specified classes of income not presently relevant) is income from the same entity, and where 80% or more of an individual's personal services income is income from the same entity. In the former case (less than 80% from the same entity), if any one or more of the four personal services business tests is satisfied, the personal services income is taken to be from a personal services business, and it is not necessary to apply for a personal services business determination. In the latter case (80% or more from the same entity), if the results test is satisfied, the personal services income is taken to be from a personal services business, and it is not necessary to apply for a personal services business determination. But otherwise, it is necessary for there to be a personal services business determination in force, if the personal services income is to be taken to be from a personal services business. On the findings I have made with respect to the purported Vanuatu invoices and his evidence concerning them, Mr Russell has failed to prove that, in any of the income years in question, more than 80% of Ancath's income did not come from the one source. During those income years Tradecorp was the source of Ancath's income and that income in turn was a reflection of Mr Russell's efforts or skills. For completeness, I should record that Mr Russell did not lead any evidence which would admit of a conclusion that either the unrelated clients test found in s 87 - 20 , the employment test found in s 87 - 25 or the business premises test found in s 87 - 30 of the ITAA 1997 were satisfied.


case_text: Russell also alleged that the Commissioner's staff had not given him notice that an income tax audit in respect of his personal, as opposed to the partnership's taxation affairs was being conducted, that this was a breach of the "Taxpayer's Charter" and that, accordingly, the Commissioner was "estopped" from issuing amended assessments. It is not necessary to explore the merits of the factual substratum of this allegation. Even if true, no conduct on the part of the Commissioner can affect the operation of a taxing statute in respect of facts the occurrence of which gives rise to a taxation liability: Commissioner of Taxation v Wade [1951] HCA 66 ; (1951) 84 CLR 105 at 117 per Kitto J. Mr Russell further advanced in his written submissions that there was no lawful ability to "reopen", ie issue amended assessments in respect of the 2001 and 2002 income years. This was not raised as a ground of objection in respect of the assessments. He is confined to those grounds in the absence of a grant of leave to amend. I decline to grant any such leave. So to do after the close of evidence would not be fair to the Commissioner who did not as the objection stood choose or need to lead evidence in respect of the formation of an opinion that in these income years there had been an avoidance of tax due to fraud or evasion. The Court's powers on the hearing of a taxation appeal are set out in s 14ZZP of the TAA. It is there provided that: "the Court may make such order in relation to the decision as it thinks fit, including an order confirming or varying the decision". The "decision" referred to in this section is the Commissioner's objection decision.


case_text: is nothing in the judgements delivered in the Full Court which would call into question the correctness of her Honour's conception of what constitutes "intentional disregard". I respectfully agree with her Honour's observations. They serve to confirm what a reading in context of "results from intentional disregard" would otherwise suggest. Within s 290-40 of Schedule 1 to the TAA, Parliament has specified gradations of increasing severity in terms of conduct by a taxpayer or his, her or its agent which has resulted in a tax shortfall. Of these, "intentional disregard" is the most serious in terms of the infliction of a base penalty. It is intended to be qualitatively different to and more severe than "recklessness". That suggests that wilful blindness of a kind which in other contexts has been regarded as sufficient to supply the mental element in adverbial qualifications such as "knowingly" or "wilfully", q.v. Iannella v. French [1968] HCA 14 ; (1968) 119 CLR 84 at 95-96 per Barwick CJ and Comptroller-General of Customs v Woodlands Enterprises Pty Ltd [1996] 1 Qd R 589 at 602-603 per Pincus JA, McPherson JA agreeing, is insufficient to supply the mental element in "intentional disregard". Rather, conduct of that wilfully blind kind would fall under the rubric of "recklessness" for base penalty purposes.


case_text: Cornell v Deputy Commissioner of Taxation [1920] HCA 65 ; (1920) 29 CLR 39 and at a time when s 38(1) of the Income Tax Assessment Act 1915 (Cth) (ITAA 1915) was in a form not materially distinguishable from s 199(1) of the ITAA 1936 as it stood prior to its amendment in 1986, i.e. the words "increase or vary" were employed in relation to the assessment, it was opined (at 48) in a joint judgement of six judges that "the fact that an assessment is for too small an amount is [not] any reason for setting aside the assessment at the instance of the person assessed". That judgement is silent as to whether the assessment might have been increased at the instance of the Deputy Commissioner, had positions been reversed, although the express conferral of a power to increase the assessment suggests that such an order could lawfully then have been made.


case_title: Ell v Commissioner of Taxation 2006 ATC 4098

case_text: recently, but no less helpfully, Emmett J had this to say on the subject in Ell v Commissioner of Taxation (2006) ATC 4098 at [111]-[114]: [111] Although not determinative, intention is relevant where, for example, a particular activity produces no income (see John v FCT [1989] HCA 5 ; (1989) 166 CLR 417) or where the first step in a business is undertaken (see Fairwell States Pty Ltd v FCT [1970] HCA 29 ; (1970) 123 CLR 153). It is necessary to examine the activities engaged in, including their nature and extent (see Martin v FCT [1953] HCA 100 ; (1953) 90 CLR 470 at 474). Activities may constitute the carrying on of a business even though the activities are carried on in a small way and it is not for the Commissioner to dictate to a taxpayer in which business the taxpayer engages or how to run a business profitably or economically (see Tweedle v FCT [1942] HCA 40 ; (1952) 180 CLR 1). Provided that an activity said to constitute carrying on business is engaged in for the purpose of profit on a continuous and repetitive basis, that activity may constitute the carrying on of business (see Hope v Bathurst City Council [1980] HCA 16 ; (1980) 144 CLR 1). [112] If there were no real expectation of a profit from engaging in a particular activity, there will be real doubt as to whether engaging in that activity can be said to be the carrying on of a business. Where the expenses and outgoings of an activity are disproportionate to any income that might reasonably have been expected from engaging in the activity that involved incurring those expenses and outgoings, it may be legitimate to draw an inference that the expenses and outgoings were not incurred in gaining or producing the relevant assessable income but were incurred for some other purpose. [113] Where expenses and outgoings claimed as deductions are disproportionate to the assessable income produced, subjective factors, including the direct and indirect objects of a taxpayer, may become determinative (see Fletcher v FCT [1991] HCA 42 ; (1991) 173 CLR 1 at 17 19). Where an expense or outgoing claimed as an expense or outgoing of a business is disproportionate to any assessable income that may be gained, it will not be as easy to conclude that the expense or outgoing was incurred in gaining or producing that income (see Spassked Pty Ltd v Commissioner of Taxation [2003] FCAFC 282 ; (2003) 136 FCR 441 at [64]). [114] The state of mind or intention of a taxpayer may be relevant to the question of whether or not that taxpayer is carrying on a business. Even where a transaction produces no income, if the intention of the relevant taxpayer is that the transaction is the first step in a business, that subjective state of mind may be relevant. The acquisition of Athena was, the Taxpayers say, the first step in the carrying on of a business (see Fairway Estate Pty Ltd v FCT [1970] HCA 29 ; (1970) 123 CLR 153 at 166.8). Further, it is not for the Commissioner to dictate to a taxpayer in what way a business should be run. A business may be carried on even though it is not profitable or economical (see Tweedle v FCT [1942] HCA 40 ; (1952) 180 CLR 1) , provided it is carried on with the purpose of making a profit (see FCT v Stone (2005) ATC 4234 at 4243). The Taxpayers say that they had a profit making purpose or intention in relation to the use of Athena. As is clear from the definition of "enterprise", an activity which would not under these general conceptions be regarded as a business, eg an isolated venture in the nature of trade, can nonetheless fall within the definition. One must therefore be careful not wholly to assimilate the concept of a business for income tax law purposes with the concept of an "enterprise" for GST law purposes. In the present case though the extensions beyond "business" evident in the definition of "enterprise" are not raised on the facts. Was an "enterprise" in the form of an accounting practice carried on by the partnership in the period from 1 July 2000 to the date of its dissolution on 23 February 2004? Mr Russell's evidence was that, under the name AW Russell and Co, an accountancy practice was carried on. His oral evidence was that there was "nothing much" by way of clients for such a practice in this period apart from Ancath. There was likewise "nothing much" in any other evidence would suggest that the partnership had any wider clientele during the period prior to 23 February 2004. Mr Russell introduced in evidence what purported to be a written agreement made between the partnership and Ancath in August 2000 for the provision of services to Ancath by the partnership. Mr Russell instanced his being made available to Tradecorp to fulfil Ancath's obligation to Tradecorp under the Tradecorp Agreement as the provision of services to Ancath by the partnership.


case_text: observations made by Bowen CJ and Franki J on the subject in Ferguson v Commissioner of Taxation [1979] FCA 29 ; (1979) 37 FLR 310 at 314 are of general assistance: There are many elements to be considered. The nature of the activities, particularly whether they have the purpose of profit-making, may be important. However, an immediate purpose of profit-making in a particular income year does not appear to be essential. Certainly it may be held a person is carrying on business notwithstanding his profit is small or even where he is making a loss. Repetition and regularity of the activities is also important. However, every business has to begin, and even isolated activities may in the circumstances he held to be the commencement of carrying on business. Again, organization of activities in a business-like manner, the keeping of books, records and the use of system may all serve to indicate that a business is being carried on. The fact that, concurrently with the activities in question, the taxpayer carries on the practice of a profession or another business, does not preclude a finding that his additional activities constitute the carrying on of a business. The volume of his operations and the amount of capital employed by him may be significant. However, if what he is doing is more properly described as the pursuit of a hobby or recreation or an addiction to a sport, he will not be held to be carrying on a business, even though his operations are fairly substantial.