case_text: So far as the United Kingdom is concerned, the consensus between the parties was that, though provision is made by and under the Foreign Judgements (Reciprocal Enforcements) Act 1933 (UK) for the registration of, materially, judgments of this Court or of the Supreme Court of a State, an exception prevails in respect of "a sum payable in respect of taxes or other charges of a like nature" (see s 1(2)). That being so and having regard to Government of India v Taylor [1955] AC 491 , it was common ground that a judgment obtained here in respect of a revenue debt could not be enforced in the United Kingdom. Accepting this though, the conclusion reasonably to be drawn on the whole of the evidence that existed when the DPO was made was that the prospect of Mr Pattenden's returning to the United Kingdom for anything other than short term visits was remote. Further, there was no evidence that he had any assets of any significance in that country. 96 There was no evidence before me as to the position which prevails in relation to the enforcement of an Australian revenue debt in Vanuatu. If there were some benign feature of the law there that would permit the enforcement of an Australian revenue debt judgment there it was for Mr Pattenden to prove that. Mr Pattenden does, it seems, have assets there, but the impression reasonably to be formed on the evidence of his situation in May this year was that, in his retirement, he is increasingly likely to spend less time there than he does in New Zealand. Mr Pattenden's physical presence in Australia can have no effect on the position which prevails under Vanuatu law in relation to the enforcement of an Australian revenue debt judgment. 97 So far as New Zealand is concerned, it appears that the common law public policy against the enforcement of a foreign revenue debt judgment as described in Government of India v Taylor has been reversed by domestically enacted treaty. In 2006 the TAA was amended so as to include in Sch 1 a new Div 263 "Mutual assistance in the collection of foreign tax debts": s 3 and Sch 1, item 8, International Tax Agreements Amendment Act (No 1) 2006 (Cth). The new Division makes provision for bilateral enforcement treaties for tax debts. The first country with which Australia entered into treaty relations for bilateral enforcement of tax debts was New Zealand. This was achieved by the inclusion of a newly numbered Article 27 into the Double Taxation Agreement between the two countries. That Protocol was included in Schedule 4A to the International Tax Agreements Act 1953 (Cth) by the International Tax Agreements Amendment Act (No 1) 2006 (Cth). The Protocol entered into force on 22 January 2007. Any Australian revenue law judgment in respect of Mr Pattenden's Australian tax liability could be enforced in New Zealand against assets which he has there. 98 Mr Pattenden's history is one of attending requests made by the ATO for interviews. He has known that he and companies in the ACBF Group were the subject of increasing scrutiny by the ATO for some five years. He had ample opportunity, prior to the making of the amended assessments in January 2008, to depart Australia permanently and to send his wealth abroad. One might reasonably apprehend that he could have adopted a like attitude to divorce proceedings here. There is no evidence that he did. For all of that time, he has held a British passport. Notwithstanding this, he has resisted the temptation either to "flee" there (to adapt the language of the ATO in the DPO submission) or to retire there. Instead, the only temptation to which he has succumbed is to retire to New Zealand, a country in which the recovery of Australian tax is readily possible. 99 Further, in terms of assets against which recovery in respect of the liabilities noted in the schedule to the DPO might readily be possible, he has shares in the ACBF Group worth some $4M, a luxury unit at Runaway Bay (by inference on the available evidence worth in the order of $1M) and his residence in New Zealand.


case_outcome: considered

case_text: In terms of Australian jurisprudence, the lawfulness in particular circumstances of a practice within public administration of delegates of a responsible Minister or permanent head or equivalent such as the Commissioner authorising subordinates to exercise delegated powers in their name finds recognition at ultimate appellate level in O'Reilly v State Bank of Victoria Commissioners [1983] HCA 47 ; (1982-1983) 153 CLR 1 at 12-14 per Gibbs CJ, Murphy J agreeing in this regard and at 30-33 per Wilson J. It is also the subject of an influential advisory opinion given by Brennan J in his Honour's then capacity as President of the Administrative Appeals Tribunal in Re Reference under Ombudsman Act s 11 (1979) 2 ALD 86. These, in turn, give local recognition to a principle of public law in the United Kingdom in relation to the administration of large Departments of State which has come to be known as "the Carltona principle", so named for a leading authority on the subject in that country, Carltona Ltd v Commissioners of Works [1943] 2 All E R 560. These and other authorities on the subject are helpfully collected and discussed in Aronson, Dyer and Groves, Judicial Review of Administrative Action , 3rd Edition, at pp 310-318.


case_outcome: applied

case_text: Though termed an "appeal", a proceeding under s 14V of the TAA either in this Court or a State or Territory Supreme Court, each of which is concurrently invested with Federal jurisdiction for this purpose, is a proceeding in the original jurisdiction. Features of such an appeal were considered by the Full Court in Poletti v Commissioner of Taxation (1994) 52 FCR 154 (Poletti's Case). Poletti's Case remains the only appellate authority in relation to such appeals. Not all of the decisions in the exercise of original jurisdiction which preceded Poletti's Case are readily reconcilable with that case or each other in relation to the nature of an appeal under s 14V. 8 The following propositions emerge from Poletti's Case in relation to this type of "appeal": (a) the appeal is not a hearing de novo , which means that there is no retrial of all the issues and what the Commissioner considered and did in making the DPO decision is not irrelevant (at 160); (b) neither is an appeal against the making of a DPO confined to a question of law in the way in which is an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (at 160); (c) nor is the appeal one confined to administrative law error grounds in a way in which would be a challenge under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (at 160); (d) administrative law error grounds or a question of law may nonetheless permissibly be advanced on an appeal which, to this extent, overlaps with a judicial review proceeding (at 160); (e) it is for an appellant to make good the challenge; no onus of proof lies on the Commissioner (at 160-161); (f) the documentary material before the Commissioner at the time when the decision was made should be produced by him to the Court (at 161); (g) other material then in existence, be it on the Commissioner's files or otherwise, is relevant and can be produced to the Court to enable the Court to decide whether the belief of the Commissioner was held on reasonable grounds (at 162); (h) material which comes to light after the making of the DPO decision and which did not exist at that time is of doubtful relevance (at 162). 9 In Poletti's Case at 160, the Full Court considered that an appeal against the making of a DPO involves the determination by the Court of three principal questions (or such one or more of them as are in issue in the appeal): (a) whether the person is subject to a tax liability; (b) whether the Commissioner held the belief of which s 14S(1)(b) speaks; and (c) whether reasonable grounds existed for the formation by the Commissioner of the requisite belief? There questions provide a convenient framework within which to commence consideration of the merits of this appeal.


case_outcome: cited

case_text: Even assuming that a "residual discretion" for the Court existed, Mr Pattenden's reliance on another part of the Receivables Policy (Exhibit 5 Part B, section 28 of the Policy) directed to the subject of "Recovering Disputed Debts", which was said to give rise to "legitimate expectations" (a term the use of which in administrative law is hardly to be encouraged: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1 at [81] [83] per McHugh and Gummow JJ, at [121] per Hayne J and at [140] [150] per Callinan J) which were not honoured by the Commissioner in making the DPO was doomed to fail at the outset. That part of the policy is patently not relevant to the making of a DPO. 119 Given the answers reached in respect of the questions derived from Poletti's Case, it is unnecessary to devote any further attention to the "residual discretion" submission. 120 The appeal should be allowed. The departure prohibition order of 21 May 2008 should be set aside. The Commissioner should pay Mr Pattenden's costs. I certify that the preceding one hundred and twenty (120) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 24 October 2008 Counsel for the Applicant: Mr M Robertson Solicitor for the Applicant: Small Myers Hughes Lawyers Counsel for the Respondent: Mr P Bickford Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 24 - 25 July 2008 and 11 - 12 August 2008 Date of Judgment: 24 October 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1590.html


case_title: Re Reference under Ombudsman Act s 11 (1979) 2 ALD 86


case_text: Upon the production and tender of the authenticated copies of the amended and other assessments, that Mr Pattenden was subject to a taxation liability became a given in this appeal. Section 177 of the ITAA36 operated "to change what would otherwise be the operation of the relevant laws of evidence": Commissioner of Taxation v Futuris Corporation Ltd [2008] HCA 32 ; (2008) 82 ALJR 1177 at 1191, [65] . In these circumstances and to adapt, in light of subsequent legislative changes to the forums in which taxation appeals or reviews are heard, language employed by Lee J of the New South Wales Supreme Court in 1985 in Winter v Commissioner of Taxation (1985) 16 ATR 977 at 981, one of the first appeals of the present kind, it is not for a court entertaining an appeal against a DPO to usurp the function of the Federal Court or the Administrative Appeals Tribunal when deciding an appeal against or, as the case may be, when reviewing, an objection decision in respect of an assessment. There was, even in 1985, nothing new in such a conclusion. A like position prevailed by virtue of the effect of s 177(1) of the ITAA36 in respect of recovery related proceedings arising under the earlier regime for the restriction of the departure from Australia of taxation debtors: Re Scottish Loan & Finance Co Ltd (1944) 44 SR (NSW) 461 at 466-467 (Nicholas CJ in Eq).


case_text: Having reflected on the language employed in s 14S(1)(b) of the TAA and on what was said of that provision by Young J in Dalco v Commissioner of Taxation (1987) 19 ATR 443 at 447-448 (later endorsed by Einfeld J in Edelsten v Commissioner of Taxation (1989) 85 ALR 226 at 230) and by Pincus J (as his Honour then was) in Skase v Commissioner of Taxation [1991] FCA 226 ; (1991) 32 FCR 206 , at 209 and 211, Jessup J in Troughton v Deputy Commissioner of Taxation (2008) 166 FCR 9 at 17, [22] [23] recently offered the following summary of how that provision falls to be construed: 22 It follows that s 14S(1)(b) should be read not literally, but as though it referred to a belief by the Commissioner (on reasonable grounds) that it was desirable that the person not leave Australia without discharging the tax liability or making the arrangements there referred to. Thus it is not to be taken as a given that, in every case, the departure of the person from Australia will make it unlikely, or at least less likely, that the tax liability will be discharged, or that the ability of the Commissioner to recover the tax will be impaired. These are things which must be considered by the Commissioner in every case. The purpose of s 14S, and accordingly a central purpose of Part IVA , is not the prevention of persons (owing tax) from leaving Australia simpliciter: it is the prevention of such persons from leaving Australia where, in the Commissioner's belief reasonably arrived at, the recovery of tax would or might thereby be impaired. 23 In that result, at least so far as revealed by s 14S, the general scope and objects of Part IVA of the Administration Act are as contended for by both sides in the present case. As contended for by the Commissioner, they are the protection of the revenue. As contended for by the applicant, they are the prevention of persons (owing tax) from leaving Australia where that would affect the recoverability thereof.


case_title: Troughton v Deputy Commissioner of Taxation (2008) 166 FCR 9


case_title: Winter v Commissioner of Taxation (1985) 16 ATR 977


case_text: There is authority that the ability of a subordinate to exercise in the name of a Minister of State a statutory power conferred on the Minister need not be found in a formal instrument of authority but may permissibly be found in departmental practice: Woollett v Minister of Agriculture and Fisheries [1955] 1 QB 103, at 125 per Jenkins LJ and at 136 per Morris LJ. In this case the delegate has executed a formal instrument of authority. That instrument carefully delineates the extent to which particular subordinates are entitled to exercise delegated power in the name of the delegate. It is necessarily to be inferred that the instrument evidences a considered decision by a Deputy Commissioner of Taxation as to which subordinates, having regard to the knowledge and experience required to hold particular subordinate positions, ought responsibly to be given authority to make a particular type of decision in the name of that Deputy Commissioner. The instrument of authorisation gives a desirable certainty of authority to subordinates, as opposed to consigning such matters to informal practice and to the uncertainty of whether that practice would be regarded as acceptable having regard to the nature of the power and the level at which authority was exercised. The deliberate exclusion in the instrument of persons of lesser seniority than Mr Benson from having authority to decide on behalf of the delegate to issue a DPO tells against such persons possessing any authority by informal practice.


case_text: The High Court in Gattellaro v Westpac Banking Corporation [2004] HCA 6 ; (2004) 78 ALJR 394 said (at [17]): In New South Wales there would appear to be no room for the operation of the common law doctrine of judicial notice, strictly so called, since the enactment of the Evidence Act 1995 (NSW), s 144. That observation was made in a case in which the question whether s 144 of the New South Wales Act displaced the common law was not before the Court. A majority of the Court of Appeal of New South Wales had taken judicial notice of the fact that banking institutions such as Westpac used standard forms of guarantee. The High Court held that to be erroneous. The error was not defended before the High Court and nothing turned on any difference between the common law and s 144. 115 The relationship between s 144 and the common law was not agitated in these proceedings. I am content to act upon the basis that the section states the applicable law, authorising this Court to take judicial notice of matters of common general knowledge. 116 The Court is invited to take judicial notice of the disadvantage of women practitioners in the legal profession as a matter of "common knowledge ... generally" within the meaning of s 144(1)(a). VWL, in its written submissions, identified the social fact for which it contended. The Commissioner was thereby on notice and not unfairly prejudiced were the Court to act upon the submission. The social fact propounded was the historical and persisting disadvantage of women in relation to their participation and career advancement within the legal profession. At that level of generality there was no dispute. I am prepared to take judicial notice of it. It informs a consideration of whether the VWL was "established for community service purposes" or otherwise met the public benefit requirement of the common law understanding of a charitable institution. It is not, however, critical to the characterisation of the association for the purposes of the ITAA. Characterisation depends primarily upon the objects and, to a degree, upon the activities of VWL in the relevant years of income.


case_text: The concept of charitable purposes was elaborated in a passage, which has literally acquired statutory status, from the judgment of Lord Macnaghten in Commissioners for Special Purposes of Income Tax v Pemsel [1891] AC 531 at 583. That case concerned the Income Tax Act 1842 (UK) 5 and 6 Vict. c 35 which provided for special allowances in relation to income tax on rents and profits of lands vested in trustees for charitable purposes so far as they were applied to charitable purposes. Lord Macnaghten said (at 583): "Charity" in its legal sense comprises four principal divisions: trusts for the relief of poverty; trusts for the advancement of education; trusts for the advancement of religion; and trusts for other purposes beneficial to the community, not falling under any of the preceding heads. The trusts last referred to are not the less charitable in the eye of the law, because incidentally they benefit the rich as well as the poor, as indeed, every charity that deserves the name must do either directly or indirectly. It is accepted that purposes which are "beneficial to the community" must also be "within the spirit and intendment of the preamble to the Statute of Elizabeth". 126 The High Court recently reaffirmed the application of the technical meaning to the word "charity" and its derivatives used in statutes unless a contrary intention is evident. In Central Bayside General Practice Association Ltd v Commissioner of State Revenue [2006] HCA 43 ; (2006) 229 ALR 1 , Gleeson CJ, Heydon and Crennan JJ referred, in a footnote, to the technical legal sense of "charitable" as that defined by Lord Macnaghten in Pemsel [1891] AC 531 "by reference to the spirit and intendment of the preamble to the Statute of Charitable Uses Act 1601 (UK)". Their Honours referred also to "... the general rule that, the word "charitable" being a word that has a technical legal meaning, when it is used in a statute it should be understood in its legal sense unless a contrary intention appears". They noted that the general rule has been accepted as the law of Australia at least since the decision of the Privy Council in Chesterman v Federal Commissioner of Taxation [1925] UKPCHCA 2 ; (1925) 37 CLR 317. They further said (at [18] fn 6): The word is commonly used in statutes. It is reasonable to assume that parliamentary counsel, taxpayers, revenue authorities, settlors, testators and others have acted on the faith of an understanding that the general rule applies. The Full Court of the Federal Court in Commissioner of Taxation v Word Investments Ltd (2007) 164 FCR 194 at [8] accepted, and there was no dispute before it, that the word "charitable" in the relevant provisions of the ITAA 1997 bears its technical legal meaning. It relied upon Bayside [2006] HCA 43 ; 229 ALR 1 for that purpose. 133 For an association to be characterised as a charitable institution it must exist for a public benefit as distinct from the creation of private benefits. The fourth class of charitable trust in Pemsel [1891] AC 531 brings in the public benefit requirement through the words "beneficial to the community". As Kenny J said in The Triton Foundation 147 FCR at [22]: The public may, however, include a section of the public. An association may have a public benefit purpose although some of its subsidiary or ancillary functions may benefit particular persons such as members of a profession: Royal Australian College of Surgeons v Federal Commissioner of Taxation [1943] HCA 34 ; (1943) 68 CLR 436 at 447 and other authorities cited in The Triton Foundation 147 FCR at [23]. 142 The Commissioner contended that VWL was not a charitable institution. He argued that not all purposes which are beneficial to the public are in fact charitable. A trust of the fourth class in Pemsel [1891] AC 531 must be of direct and general benefit to the public. The mere fact that it is for purposes which may tend to be of general public utility would not be sufficient. He cited Taylor v Taylor [1910] HCA 4 ; (1910) 10 CLR 218 at 237 and Barby v Perpetual Trustee Co Ltd [1937] HCA 64 ; (1937) 58 CLR 316 at 324. He did not dispute that a trust for the promotion of the mental or moral improvement of the community could sometimes fall within the fourth class. The requirement of benefit to the public was said to commonly exclude from the status of charitable institutions organisations such as professional bodies established to help those persons who furnish the organisation's funds. These would usually be members or persons eligible for membership but could also be contributors or sponsors. If the main objects of an institution were the protection and advancement of persons practicing in a particular profession, the institution would not be regarded as charitable because the element of direct public benefit was lacking.


case_text: The High Court recently reaffirmed the application of the technical meaning to the word "charity" and its derivatives used in statutes unless a contrary intention is evident. In Central Bayside General Practice Association Ltd v Commissioner of State Revenue [2006] HCA 43 ; (2006) 229 ALR 1 , Gleeson CJ, Heydon and Crennan JJ referred, in a footnote, to the technical legal sense of "charitable" as that defined by Lord Macnaghten in Pemsel [1891] AC 531 "by reference to the spirit and intendment of the preamble to the Statute of Charitable Uses Act 1601 (UK)". Their Honours referred also to "... the general rule that, the word "charitable" being a word that has a technical legal meaning, when it is used in a statute it should be understood in its legal sense unless a contrary intention appears". They noted that the general rule has been accepted as the law of Australia at least since the decision of the Privy Council in Chesterman v Federal Commissioner of Taxation [1925] UKPCHCA 2 ; (1925) 37 CLR 317. They further said (at [18] fn 6): The word is commonly used in statutes. It is reasonable to assume that parliamentary counsel, taxpayers, revenue authorities, settlors, testators and others have acted on the faith of an understanding that the general rule applies. The Full Court of the Federal Court in Commissioner of Taxation v Word Investments Ltd (2007) 164 FCR 194 at [8] accepted, and there was no dispute before it, that the word "charitable" in the relevant provisions of the ITAA 1997 bears its technical legal meaning. It relied upon Bayside [2006] HCA 43 ; 229 ALR 1 for that purpose.


case_text: The High Court recently reaffirmed the application of the technical meaning to the word "charity" and its derivatives used in statutes unless a contrary intention is evident. In Central Bayside General Practice Association Ltd v Commissioner of State Revenue [2006] HCA 43 ; (2006) 229 ALR 1 , Gleeson CJ, Heydon and Crennan JJ referred, in a footnote, to the technical legal sense of "charitable" as that defined by Lord Macnaghten in Pemsel [1891] AC 531 "by reference to the spirit and intendment of the preamble to the Statute of Charitable Uses Act 1601 (UK)". Their Honours referred also to "... the general rule that, the word "charitable" being a word that has a technical legal meaning, when it is used in a statute it should be understood in its legal sense unless a contrary intention appears". They noted that the general rule has been accepted as the law of Australia at least since the decision of the Privy Council in Chesterman v Federal Commissioner of Taxation [1925] UKPCHCA 2 ; (1925) 37 CLR 317. They further said (at [18] fn 6): The word is commonly used in statutes. It is reasonable to assume that parliamentary counsel, taxpayers, revenue authorities, settlors, testators and others have acted on the faith of an understanding that the general rule applies. The Full Court of the Federal Court in Commissioner of Taxation v Word Investments Ltd (2007) 164 FCR 194 at [8] accepted, and there was no dispute before it, that the word "charitable" in the relevant provisions of the ITAA 1997 bears its technical legal meaning. It relied upon Bayside [2006] HCA 43 ; 229 ALR 1 for that purpose. 130 The general nature of the inquiries to be undertaken in ascertaining whether an entity is a charitable institution was discussed by Allsop J in Word Investments Ltd 164 FCR 194. His Honour referred to Royal Australian College of Surgeons v Federal Commissioner of Taxation [1943] HCA 34 ; (1943) 68 CLR 436 and the analysis of the judgments in that case by Lockhart J in Cronulla Sutherland Leagues Club Ltd v Commissioner of Taxation (1990) 23 FCR 82 at 90-93. These authorities demonstrated that the question as to the true nature or character of the entity is to be assessed having regard to its objects, purposes and activities (at [11]). Allsop J formulated the task of characterisation thus (at [14]): The relevant task, as stated in the Surgeons' Case is to assess the true character or nature of the entity by reference to its objects, purposes and activities. It is an integrated, holistic enquiry directed to whether a body of facts and circumstances satisfies a legal category or conception. 131 Importantly, the Commissioner had submitted to the Full Court that a charitable institution could conduct commercial activities but only as incidental or ancillary to its charitable activities. After referring to relevant authorities, Allsop J observed that the cases did not support the submission. He cited Scottish Burial Reform and Cremation Society Ltd v Glasgow City Corporation [1967] UKHL 3 ; [1968] AC 138 and The Incorporated Council of Law Reporting of the State of Queensland v Commissioner of Taxation [1971] HCA 44 ; (1971) 125 CLR 659 and said (at [18]): ... both stand as authority for the proposition that the making of a profit from the conduct of the charitable activity does not necessarily destroy the charitable nature of the purpose exhibited by the activity. Stone J agreed with Allsop J.


case_text: Charitable purposes generally do not include political purposes. Dal Pont observes that the limitation is largely a product of 20 th century jurisprudence emanating principally from the dictum of Lord Parker in Bowman v Secular Society Ltd [1917] AC 406 at 442: a trust for the attainment of political objects has always been held invalid, ... because the Court has no means of judging whether or not a proposed change in the law will or will not be for the public benefit, and therefore cannot say that a gift to secure the change is a charitable gift.


case_text: The political purposes limitation is not well defined and is more difficult of application today having regard to the change in social conditions since 1917 and the involvement of legislatures in areas unthought of at that time: see Santow GFK , " Charity in its Political Voice A Tinkling Cymbal or a Sounding Brass?" (1999) 18 ABR 225. In Public Trustee v Attorney-General (1997) 42 NSWLR 600 at 602, Santow J observed of the High Court decision in Royal North Shore Hospital of Sydney v Attorney-General (NSW) [1938] HCA 39 ; (1938) 60 CLR 396 at 426: The High Court's formulation suggests that a trust may survive in Australia as charitable where the object is to introduce new law consistent with the way the law is tending. In his paper in the Australian Bar Review, Santow J also observed that a trust which has an undoubtedly charitable object does not lose its charitable status simply because it also has an object of changing the law or reversing policy (at 248): The question is always whether that "political object" precludes the trust satisfying the public benefit requirement. 139 In relation to the political purposes question, VWL submitted that it was not formed for the purpose of changing a specific law or laws or government policy. One of its primary activities have been directed to maintaining and educating the community about and enforcing existing laws. The promotion of humanitarian objects and those relating to basic human rights were said to be charitable even though, on occasion, (although not in this case) they might involve or require a change in policy or law. The judgment of Santow J in Public Trustee v Attorney-General (1997) 42 NSWLR 600 was cited and, in particular, his Honour's observation that: There is a range of activity from direct lobbying of the government, to education of the public on particular issues, in the interests of a climate conducive to political change. The line between an object directed at legitimate educative activity compared to illegitimate political agitation is a blurred one, involving at the margin matters of tone and style. VWL submitted that, to the extent to which any of its purposes could be regarded as political, they were incidental to its principal objects. The organisation would not be eviscerated if any reference to legislative change were removed from its constituent documents.


case_text: The political purposes limitation is not well defined and is more difficult of application today having regard to the change in social conditions since 1917 and the involvement of legislatures in areas unthought of at that time: see Santow GFK , " Charity in its Political Voice A Tinkling Cymbal or a Sounding Brass?" (1999) 18 ABR 225. In Public Trustee v Attorney-General (1997) 42 NSWLR 600 at 602, Santow J observed of the High Court decision in Royal North Shore Hospital of Sydney v Attorney-General (NSW) [1938] HCA 39 ; (1938) 60 CLR 396 at 426: The High Court's formulation suggests that a trust may survive in Australia as charitable where the object is to introduce new law consistent with the way the law is tending. In his paper in the Australian Bar Review, Santow J also observed that a trust which has an undoubtedly charitable object does not lose its charitable status simply because it also has an object of changing the law or reversing policy (at 248): The question is always whether that "political object" precludes the trust satisfying the public benefit requirement.


case_text: The general nature of the inquiries to be undertaken in ascertaining whether an entity is a charitable institution was discussed by Allsop J in Word Investments Ltd 164 FCR 194. His Honour referred to Royal Australian College of Surgeons v Federal Commissioner of Taxation [1943] HCA 34 ; (1943) 68 CLR 436 and the analysis of the judgments in that case by Lockhart J in Cronulla Sutherland Leagues Club Ltd v Commissioner of Taxation (1990) 23 FCR 82 at 90-93. These authorities demonstrated that the question as to the true nature or character of the entity is to be assessed having regard to its objects, purposes and activities (at [11]). Allsop J formulated the task of characterisation thus (at [14]): The relevant task, as stated in the Surgeons' Case is to assess the true character or nature of the entity by reference to its objects, purposes and activities. It is an integrated, holistic enquiry directed to whether a body of facts and circumstances satisfies a legal category or conception. 133 For an association to be characterised as a charitable institution it must exist for a public benefit as distinct from the creation of private benefits. The fourth class of charitable trust in Pemsel [1891] AC 531 brings in the public benefit requirement through the words "beneficial to the community". As Kenny J said in The Triton Foundation 147 FCR at [22]: The public may, however, include a section of the public. An association may have a public benefit purpose although some of its subsidiary or ancillary functions may benefit particular persons such as members of a profession: Royal Australian College of Surgeons v Federal Commissioner of Taxation [1943] HCA 34 ; (1943) 68 CLR 436 at 447 and other authorities cited in The Triton Foundation 147 FCR at [23].


case_text: The general nature of the inquiries to be undertaken in ascertaining whether an entity is a charitable institution was discussed by Allsop J in Word Investments Ltd 164 FCR 194. His Honour referred to Royal Australian College of Surgeons v Federal Commissioner of Taxation [1943] HCA 34 ; (1943) 68 CLR 436 and the analysis of the judgments in that case by Lockhart J in Cronulla Sutherland Leagues Club Ltd v Commissioner of Taxation (1990) 23 FCR 82 at 90-93. These authorities demonstrated that the question as to the true nature or character of the entity is to be assessed having regard to its objects, purposes and activities (at [11]). Allsop J formulated the task of characterisation thus (at [14]): The relevant task, as stated in the Surgeons' Case is to assess the true character or nature of the entity by reference to its objects, purposes and activities. It is an integrated, holistic enquiry directed to whether a body of facts and circumstances satisfies a legal category or conception.


case_text: Importantly, the Commissioner had submitted to the Full Court that a charitable institution could conduct commercial activities but only as incidental or ancillary to its charitable activities. After referring to relevant authorities, Allsop J observed that the cases did not support the submission. He cited Scottish Burial Reform and Cremation Society Ltd v Glasgow City Corporation [1967] UKHL 3 ; [1968] AC 138 and The Incorporated Council of Law Reporting of the State of Queensland v Commissioner of Taxation [1971] HCA 44 ; (1971) 125 CLR 659 and said (at [18]): ... both stand as authority for the proposition that the making of a profit from the conduct of the charitable activity does not necessarily destroy the charitable nature of the purpose exhibited by the activity. Stone J agreed with Allsop J.


case_text: Importantly, the Commissioner had submitted to the Full Court that a charitable institution could conduct commercial activities but only as incidental or ancillary to its charitable activities. After referring to relevant authorities, Allsop J observed that the cases did not support the submission. He cited Scottish Burial Reform and Cremation Society Ltd v Glasgow City Corporation [1967] UKHL 3 ; [1968] AC 138 and The Incorporated Council of Law Reporting of the State of Queensland v Commissioner of Taxation [1971] HCA 44 ; (1971) 125 CLR 659 and said (at [18]): ... both stand as authority for the proposition that the making of a profit from the conduct of the charitable activity does not necessarily destroy the charitable nature of the purpose exhibited by the activity. Stone J agreed with Allsop J. 135 VWL cited examples of judicially enunciated criteria for identifying purposes falling within the spirit and intendment of the Preamble to the Statute of Elizabeth. According to such criteria qualifying purposes are those: . which "must tend to the improvement of society": Barby v Perpetual Trustee Co Ltd [1937] HCA 64 ; (1937) 58 CLR 316 at 324 (Dixon J); . " whose fulfilment may reasonably be thought to minister to the safety or happiness or wellbeing or good conscience of the community and which may reasonably be the subject of outlay at the public expense ... [and] could fairly be regarded as a possible subject of public responsibility": Re Belcher [1950] VLR 11 at 13 (Fullagar J); . which to some extent satisfy "an obligation of the community recognised generally in the community": Re Lowin [1965] NSWR 1624 at 1626 (Jacobs J); . which make "provision of some of the indispensables of a settled community" and are "socially fundamental": Incorporated Council of Law Reporting of the State of Queensland v Federal Commissioner of Taxation [1971] HCA 44 ; (1971) 125 CLR 659 at 669 (Barwick CJ); . which uplift the moral tone of the community: Re Weaver [1963] VR 257 ; Re Inman [1965] VR 238 at 242; or . which raise the standard of life: Re Blyth [1997] 2 Qd 567 at 581 (Thomas J).


case_text: The approach taken by the Full Court is consistent with that set out by Kenny J in Commissioner of Taxation v The Triton Foundation [2005] FCA 1319 ; (2005) 147 FCR 362. After extensively reviewing the authorities relating to charitable institutions her Honour said (at [20]): It is also settled law that whether a particular corporate body is a charitable institution depends on the central or essential object of the institution as determined by reference to its constitution and activities ... If the main purpose of such a body is charitable, it does not lose its charitable character simply because some of its incidental or concomitant and ancillary objects are non-charitable. 133 For an association to be characterised as a charitable institution it must exist for a public benefit as distinct from the creation of private benefits. The fourth class of charitable trust in Pemsel [1891] AC 531 brings in the public benefit requirement through the words "beneficial to the community". As Kenny J said in The Triton Foundation 147 FCR at [22]: The public may, however, include a section of the public. An association may have a public benefit purpose although some of its subsidiary or ancillary functions may benefit particular persons such as members of a profession: Royal Australian College of Surgeons v Federal Commissioner of Taxation [1943] HCA 34 ; (1943) 68 CLR 436 at 447 and other authorities cited in The Triton Foundation 147 FCR at [23].


case_title: Royal College of Surgeons v Federal Commissioner of Taxation [1943] HCA 34 ; (1943) 68 CLR 436


case_title: Public Trustee v Attorney-General (1997) 42 NSWLR 600


case_title: Halpin v Seear [1977] Ch Com Rep

case_text: Some reliance was placed on the judgment of Whitford J in Halpin v Seear [1977] Ch Com Rep. That case considered the validity of a trust established in 1926 to promote the equality of women with men in political and economic opportunity. Under the trust payments were to be made to the London Society for Women's Service for so long as it should, in the opinion of the trustee, continue to promote the objects of the trust. Whitford J noted that it was not suggested that the society as such was a charity in the eyes of the law although some of the activities would undoubtedly qualify as charitable. The question before him related to the object of the founder of the trust (at 34): So the question is whether the dominant or essential object here revealed is a political one, for it stands accepted in argument before me that if the object be a political object and if this be a purpose trust then it must be invalid. I think that it cannot seriously be contended that the object here is essentially a political object. It seems to me quite clear that the dominant or essential object is the achievement of equality albeit in political and economic fields, that the founder in no sense is concerned with any particular political or economic doctrine or cause; she is concerned merely to ensure that within these fields there should be equality of status between women and men.


case_text: The Commissioner contended that VWL was not a charitable institution. He argued that not all purposes which are beneficial to the public are in fact charitable. A trust of the fourth class in Pemsel [1891] AC 531 must be of direct and general benefit to the public. The mere fact that it is for purposes which may tend to be of general public utility would not be sufficient. He cited Taylor v Taylor [1910] HCA 4 ; (1910) 10 CLR 218 at 237 and Barby v Perpetual Trustee Co Ltd [1937] HCA 64 ; (1937) 58 CLR 316 at 324. He did not dispute that a trust for the promotion of the mental or moral improvement of the community could sometimes fall within the fourth class. The requirement of benefit to the public was said to commonly exclude from the status of charitable institutions organisations such as professional bodies established to help those persons who furnish the organisation's funds. These would usually be members or persons eligible for membership but could also be contributors or sponsors. If the main objects of an institution were the protection and advancement of persons practicing in a particular profession, the institution would not be regarded as charitable because the element of direct public benefit was lacking.


case_text: VWL cited examples of judicially enunciated criteria for identifying purposes falling within the spirit and intendment of the Preamble to the Statute of Elizabeth. According to such criteria qualifying purposes are those: . which "must tend to the improvement of society": Barby v Perpetual Trustee Co Ltd [1937] HCA 64 ; (1937) 58 CLR 316 at 324 (Dixon J); . " whose fulfilment may reasonably be thought to minister to the safety or happiness or wellbeing or good conscience of the community and which may reasonably be the subject of outlay at the public expense ... [and] could fairly be regarded as a possible subject of public responsibility": Re Belcher [1950] VLR 11 at 13 (Fullagar J); . which to some extent satisfy "an obligation of the community recognised generally in the community": Re Lowin [1965] NSWR 1624 at 1626 (Jacobs J); . which make "provision of some of the indispensables of a settled community" and are "socially fundamental": Incorporated Council of Law Reporting of the State of Queensland v Federal Commissioner of Taxation [1971] HCA 44 ; (1971) 125 CLR 659 at 669 (Barwick CJ); . which uplift the moral tone of the community: Re Weaver [1963] VR 257 ; Re Inman [1965] VR 238 at 242; or . which raise the standard of life: Re Blyth [1997] 2 Qd 567 at 581 (Thomas J). 142 The Commissioner contended that VWL was not a charitable institution. He argued that not all purposes which are beneficial to the public are in fact charitable. A trust of the fourth class in Pemsel [1891] AC 531 must be of direct and general benefit to the public. The mere fact that it is for purposes which may tend to be of general public utility would not be sufficient. He cited Taylor v Taylor [1910] HCA 4 ; (1910) 10 CLR 218 at 237 and Barby v Perpetual Trustee Co Ltd [1937] HCA 64 ; (1937) 58 CLR 316 at 324. He did not dispute that a trust for the promotion of the mental or moral improvement of the community could sometimes fall within the fourth class. The requirement of benefit to the public was said to commonly exclude from the status of charitable institutions organisations such as professional bodies established to help those persons who furnish the organisation's funds. These would usually be members or persons eligible for membership but could also be contributors or sponsors. If the main objects of an institution were the protection and advancement of persons practicing in a particular profession, the institution would not be regarded as charitable because the element of direct public benefit was lacking.


case_text: In Douglas v Commissioner of Taxation (1997) 77 FCR 112 , Olney J said of s 23(g)(v) (at 118 ): The absence of a statutory definition and the very broad ambit of the words "community service" justify resort to the explanatory memorandum to identify more precisely the legislative intention. His Honour held in that case that the trust deeds of a "Protestant Hall" did not fall within the exemption provided in s 23(g)(v) because it held the title to the relevant land and kept a building on it for use by other organisations but did not carry out any activity for the benefit or welfare of the community.


case_text: In National Council of Women of Tasmania v Federal Commissioner of Taxation (1998) 38 ATR 1174 , the Administrative Appeals Tribunal (the AAT) considered whether the National Council of Women of Tasmania fell within the scope of the exemption. It was an unincorporated association, the objects of which included the advancement of the interests of women and children and humanity in general. It also brought together representatives of other women's organisations including the promotion of their activities and projects directed to community welfare. The AAT held that the Council's predominant purpose was not that of a social club or discussion group. Its political and lobbying activities had been minimal. It played an active role in community service activities and not a passive one. 156 The AAT found that the Council would hold one annual general meeting each year, nine monthly general meetings, ten monthly executive meetings and a number of lunches and seminars. One of the "subtle roles" of the Council was to widen the support network of its affiliated organisations. Delegates and members who attended Council meetings and executive meetings would support the activities of affiliated organisations financially and by doing unpaid work. Council delegates and members assisted by donating and collecting goods for the needy such as baby clothes and by knitting items for the needy during general meetings. Most of the member organisations appeared to qualify as community service organisations. 157 The AAT held that the predominant purpose of the Council's meetings involved the coordination of community service work and the provision of exchange of information for the purpose of facilitating such work. It held the Council to be an association established for community service purposes, not being political or lobbying purposes and so exempt from income tax.


case_text: In Navy Health Ltd v Deputy Federal Commissioner of Taxation (2007) ATC 4568 ,, Jessup J considered the characterisation of a non-profit single member company providing private health insurance through a fund. Membership of the fund was limited to serving members of the Australian Defence Forces and cognate classes of person. The company contended that its objects promoted the efficiency of the Australian Defence Forces which benefited the community as a whole so that it would fall within the description of a "charitable institution" for the purpose of an exemption under the Fringe Benefit Tax Assessment Act 1986 (Cth). Alternatively, it submitted that it was a "non profit association" established for community service purposes and thereby attracting a life exemption. 159 The fringe benefit tax exemption provision was based on s 23(g)(v) of the ITAA 1936. Jessup J referred to the Explanatory Memorandum and accepted that it was clear that the words of the exemption were not limited to charitable purposes. He said (at [83]): Although a composite expression, I consider that the essence of "community service" is that a service is provided to the community, or a section of the community. Here the word "service" is used in the sense of "health, benefit or advantage", particularly "the action of serving, helping or benefiting, conduct tending to the welfare or advantage of another" (OED 2nd Ed). His Honour held the term "community" to refer not only to the community as a whole but also to any identifiable section of the community. It did not follow that the receipt of a service by any group of persons should be regarded as the receipt of that service by a section of the community. 160 The question of characterisation of the VWL in this respect is not straight forward. It submitted that it provides for the welfare of the community or a section of it. Its purposes included the carrying out of activities and undertaking of projects for women in the law who have a particular need for those projects and activities by reason of their social and economic circumstance, namely their sex. 161 VWL also submitted that it was not involved in the furtherance of political or lobbying purposes. As to the latter it referred to the definition of lobbying in the Oxford English Dictionary: 1. To influence (members of a house of legislature) in the exercise of their legislative functions by frequenting the lobby. 2. To frequent the lobby of a legislative assembly for the purpose of influencing members' votes, to solicit the votes of members. VWL submitted that "lobbying" in its statutory context bore a narrow political meaning tying proscribed political activity to direct interaction with members of parliament for stated ends and purposes. It is not clear to me that the term "lobbying" is to be construed so narrowly given the width of the concept of political purposes. In my opinion it could extend to representations to government or members of parliament for changes in policy as well as changes in the law. 162 The Commissioner submitted that the concept of "community service" is similar to that of "public benefit" in the law of charitable trusts. It would not follow that receipt of a service by any group of persons should be regarded as the receipt of that service by a section of the community. In the Commissioner's submission "community service" requires the community or a section of the community to benefit by way of receipt of some identifiable help, benefit or advantage bestowed or provided directly by the putative benefactor. Such a requirement is not satisfied, it was submitted, merely because an association's activities or some of them might have a tendency to benefit the community as a whole or a section of it. In this regard the Commissioner relied upon the observation of Jessup J where he found that the community service requirement was not satisfied merely because the operations of the organisation had a tendency to promote the efficiency of the armed forces thereby benefiting the community as a whole. 163 In my opinion the concept of "community service" was intended to pick up a broader range of organisations than those covered by the concept of "charitable institution" and in particular that class of charitable institution falling within the rubric "beneficial to the community". However, an organisation may be beneficial to the community without delivering a "community service" in the sense contemplated by that term as explained in the Explanatory Memorandum. For the reasons I have already expressed, I am of the view that the purposes of VWL are beneficial to the community in the sense necessary to qualify it as a charitable institution. The concept of "community service" does seem to import the notion of the delivery of some practical "help, benefit or advantage" in the sense used by Jessup J. That criterion is not necessarily met by an organisation whose purpose is to change practices and attitudes in such a way as to facilitate the entry and advancement of women within the profession generally. 164 The matter is not without difficulty and it is unnecessary to reach a concluded position on it. It is sufficient unto the day that I have found that VWL is a charitable institution, that it attracts the relevant exemption and that its appeals must therefore be allowed. 165 Having regard to my conclusions about the status of VWL as a charitable institution, it is unnecessary to make any findings in relation to whether certain elements of its receipts were income in the relevant years. The appeals will be allowed. The orders which were suggested by the Commissioner in that event are the orders which I will make in the following terms: 1. The appeal be allowed. 2. The respondent's notice of assessment the subject of the appeal be set aside. 3. There is no order as to the costs of the appeal. I certify that the preceding one hundred and sixty-five (165) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French . Associate: Dated: 27 June 2008 Counsel for the Applicant: Ms A Richards QC and Ms K Streckfuss Solicitor for the Applicant: Freehills Counsel for the Respondent: Mr SW Gibbs SC and Mr S Linden Date of Hearing: 15, 16 and 17 October 2007 Date of Judgment: 27 June 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/983.html


case_text: considered Mr Slaveski's application that I disqualify myself, I refuse it. The High Court in Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337 identified the relevant considerations for an application of this kind. I have had regard, in particular, to whether there is any realistic possibility that the outcome of this litigation could affect the value of my shareholding in the CBA. I am satisfied that there is no possibility that the outcome of this litigation could have any affect on the value of my shareholding with the CBA. In the circumstances, it could not be said that a fair-minded lay observer may reasonably apprehend that I might not bring an impartial mind to the resolution of the application before me. Accordingly, I reject the application and will consider when the matter should be listed for hearing. I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg. Associate: Dated: 23 December 2009 Counsel for the Applicant: Mr B Basavanand Solicitor for the Applicant: Rotstein Lockwood Reddy Lawyers Pty Ltd The respondent appeared in person Date of Hearing: 18 December 2009 Date of Judgment: 18 December 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1590.html


case_outcome: referred to

case_text: For Mrs Wall to acquire an interest in Warwick's shares, by the operation of the doctrine of proprietary estoppel, it would be necessary to establish the following matters: (a) an expectation or belief by Mrs Wall, created and encouraged by Warwick, that Mrs Wall was to be regarded as the beneficial owner of the shares in the Company held by Warwick, (b) knowledge by Warwick of Mrs Wall's expectation or belief, (c) some conduct on the part of Mrs Wall, to her detriment, in reliance upon that expectation or belief, encouraged by some conduct of Warwick's or lack of conduct on his part. In those circumstances, it may be unconscionable for Warwick to rely on his ownership of the shares to defeat his mother's expectation and belief (see Dinyarrak Investments Pty Ltd v Amoco Australia Ltd (1982) 45 ALR 214 and Repatriation Commission v Tsourounakis [2004] FCAFC 332).


case_text: The task of the Tribunal would have been to examine the extent to which a court of equity would require Warwick to compensate his mother, as a term of being permitted to assert beneficial ownership of his shares. That is to say, it would be necessary to enquire whether Warwick's conduct, in receiving $400,000 in 1988 and thereafter having no involvement with the Company, gave rise to an estoppel against his asserting beneficial ownership of the shares. It is only if a constructive trust is the only way in which equity can be done, as between Warwick and his mother, that a court would impose such a remedy. The first step, however, would be to determine whether there was an appropriate equitable remedy that fell short of the imposition of a trust (see Giumelli v Giumelli [1999] HCA 10 ; (1999) 196 CLR 101 at [10] ). 75 The difficulty with the Tribunal's reasons is that it simply did not direct attention to findings necessary to establish that a remedy of constructive trust was appropriate in the circumstances. Although these matters were not the subject of any submission to the Tribunal on the hearing of this proceeding, counsel for Warwick suggested that Mrs Wall acted to her detriment in: • lending money, interest free, to the Company, • refraining from applying for an aged pension under the Entitlements Act. However, the Tribunal did not attempt to quantify any such detriment. 76 In addition, it would be necessary to examine the extent to which Mrs Wall obtained a benefit by reason of the tax losses of the Company being carried forward so as to be set off against income derived from investments made with money lent, interest free, by her to the Company. A further matter for enquiry may be the extent to which Fontas, a wholly owned subsidiary of the Company, forwent its claim against Warwick for the loan of $1,080,000 made to him in 1988. Of course, that may not have been a detriment to Mrs Wall, unless it is assumed that she was the beneficial owner of the shares.


case_title: Repatriation Commission v Tsourounakis [2004] FCAFC 332


case_text: It is difficult to understand the focus of the Commissioner on s 14ZS of the Administration Act in the present case when neither the taxpayer's objection nor, in consequence, the Commissioner's objection decision, referred in any way to the remission of additional tax imposed by the amended notice of assessment. In support of that focus I was referred to cases which, correctly in my view, hold that the words 'relates to' are wide words signifying some connection between two subject matters with the connection or association signified by the words being either direct or indirect, substantial or real. However, in the present case, there is absolutely no connection or association between the objection decision and the remission of additional tax payable under s 223 of the ITAA 36. It may be, as the Full court of this Court observed in Grollo Nominees Pty Ltd v FC of T (1997) 73 FCR 452 at 523, 'that it would seem an odd thing if there were ... an appeal to the Tribunal on the question of the amount of income tax payable which did not carry with it the right to question any consequential imposition of additional tax', but this is such a case, in the absence of the Tribunal making an order pursuant to s 14ZZK of the Administration Act allowing the taxpayer to include the additional tax issue as an additional ground of objection. In short, the objection decision in the present case is not an ineligible income tax remission decision under s 14ZS of the Administration Act and, insofar as the Commissioner's appeal is grounded on this issue, it must fail. 16 In his written submissions in reply, the Commissioner refocussed his argument, to where it always should have been focussed, on subs 43(1) of the AAT Act. 17 Subsection 43(1) of the AAT Act is in the following terms: 'For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing: (a) affirming the decision under review; (b) varying the decision under review; or (c) setting aside the decision under review and: (i) making a decision in substitution for the decision so set aside; or (ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.'


case_text: The Commissioner submitted that the present appeal was one where the remission of penalty by the Tribunal could not have been for the purpose of reviewing the decision. It was not relevant to the making of the decision because the parameters of that decision had already been set by the taxpayer's objection. It could not have been properly raised by the taxpayer before the Tribunal unless and until an order was obtained by the taxpayer under s 14ZZK(a) of the Administration Act which did not occur. As such, there could not be 'an association' between the power exercised by the Tribunal and the decision under review. If an objection had been made to the assessment of penalty and an objection decision had been made in relation to that matter, there may have been (subject to the operation of s 14ZS of the Administration Act) some basis for saying that the exercise of a power to remit by the Tribunal was in the words of Hill J in Secretary, Department of Social Security v Hodgson (1992) 37 FCR 32 'relevant to the making of the decision under review'. There would be present 'an association' between any exercise of discretion by the Tribunal to remit penalty and the objection decision. 19 In my view, this misconceives the matter and puts an impermissible gloss upon s 43. 20 While the taxpayer did not include in his objection a ground putting in issue the imposition of additional tax; and while the Commissioner's objection decision disallowing the taxpayer's objection did not, in consequence, deal with that issue; and while the taxpayer had no right to agitate the issue before the Tribunal unless the Tribunal otherwise ordered (s 14ZZK(a) of the Administration Act), which the Tribunal did not, nevertheless, in deciding the taxpayer's objection, the Commissioner could have further remitted the additional tax imposed at label D of the notice of amended assessment, pursuant to the discretion vested in him by subs 227(3) of the ITAA 36. The fact that he had already exercised this discretion, at the time of assessment to remit the additional tax to $586,858.75 was no bar or impediment to his further remission of the additional tax at the time of making his objection decision. 21 If this be right, then it is difficult to see why subs 43(1) of the AAT Act did not give the Tribunal jurisdiction to make that part of the decision against which this appeal is brought, namely, remission of the penalty matter to the Commissioner with the direction that the assessment for the year ended 30 June 1988 be amended by remitting additional tax in full. Subsection 43(1) of the AAT Act has been construed as not requiring the power or discretion to be exercised by the Tribunal as being necessarily involved in the making of the decision under review: Secretary, Department of Social Security v Hodgson supra at 39 40. In Commonwealth Bank Officers Superannuation Corporation Pty Ltd v Commissioner of Taxation [2005] FCAFC 244 (30 November 2005, unreported) the Full Court of this Court observed at [29] [30]: '...Section 43 empowers the Tribunal to exercise all the powers and discretions conferred upon the original decision-maker, provided it does so for the purpose of reviewing a decision. Provided the necessary purpose is present, the power conferred upon the Tribunal is not otherwise limited. It is neither necessary nor permissible to put a gloss upon s 43 that would permit the Tribunal to exercise the discretion maker's powers and discretions only when those powers or discretions are necessarily interdependent with the decision under review, or where the power or discretion to be exercised by the Tribunal is necessarily involved in the making of the decision under review see Secretary, Department of Social Security v Hodgson [supra]. Thus, so long as the exercise of powers and discretions by the Tribunal is for the purpose of reviewing a decision, all of the powers and discretions conferred by any relevant enactment on the decision-maker who made the decision, can be exercised by the Tribunal' (Emphasis) 22 In making this observation, the Full Court was adopting the views expressed by Hill J in Hodgson . In particular, what his Honour went on to say in that case at 40: 'Of course there must be an association between the power to be exercised by the Tribunal and the decision under review, but that association is to be found in the restriction of the grant of power in s 43(1) to the purpose of the Tribunal's review. The test is one of relevance rather than dependence . Where the exercise of a power or discretion is relevant to the making of the decision under review then, if requested, the Tribunal may exercise the discretion.' (Emphasis) 23 There can be no doubt, in the present case, that the exercise by the Tribunal of the discretion to remit the matter of the additional tax to the Commissioner with a direction that the additional tax be remitted in full is relevant to the making of the objection decision, if not dependent upon it. In that sense, the Tribunal exercised the discretion for the purpose of reviewing the objection decision and any argument that it did not must be rejected. 24 For the foregoing reasons, the appeal must be dismissed with costs. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds. Associate: Dated: 20 January 2006 Counsel for the Appellant: Mr R S Quinn Solicitor for the Appellant: Australian Government Solicitor Counsel for the Respondent: Mr D K L Raphael Solicitor for the Respondent: Northside Law Solicitors Date of Hearing: 13 December 2005 Date of Judgment: 20 January 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/9.html


case_text: If this be right, then it is difficult to see why subs 43(1) of the AAT Act did not give the Tribunal jurisdiction to make that part of the decision against which this appeal is brought, namely, remission of the penalty matter to the Commissioner with the direction that the assessment for the year ended 30 June 1988 be amended by remitting additional tax in full. Subsection 43(1) of the AAT Act has been construed as not requiring the power or discretion to be exercised by the Tribunal as being necessarily involved in the making of the decision under review: Secretary, Department of Social Security v Hodgson supra at 39 40. In Commonwealth Bank Officers Superannuation Corporation Pty Ltd v Commissioner of Taxation [2005] FCAFC 244 (30 November 2005, unreported) the Full Court of this Court observed at [29] [30]: '...Section 43 empowers the Tribunal to exercise all the powers and discretions conferred upon the original decision-maker, provided it does so for the purpose of reviewing a decision. Provided the necessary purpose is present, the power conferred upon the Tribunal is not otherwise limited. It is neither necessary nor permissible to put a gloss upon s 43 that would permit the Tribunal to exercise the discretion maker's powers and discretions only when those powers or discretions are necessarily interdependent with the decision under review, or where the power or discretion to be exercised by the Tribunal is necessarily involved in the making of the decision under review see Secretary, Department of Social Security v Hodgson [supra]. Thus, so long as the exercise of powers and discretions by the Tribunal is for the purpose of reviewing a decision, all of the powers and discretions conferred by any relevant enactment on the decision-maker who made the decision, can be exercised by the Tribunal' (Emphasis)


case_text: The Amended Notice of Appeal claimed that seven questions of law were raised in the appeal. The errors of law underlying these questions are said to be that the Tribunal: (a) applied the wrong test of 'serious hardship'; (b) made errors in dealing with the materials and evidence before it in that: (i) it made findings for which there was no evidence; (ii) it failed to take relevant considerations into account and took irrelevant considerations into account; (iii) its conclusions were affected by Wednesbury unreasonableness; and (iv) it wrongly applied the test of 'serious hardship' by finding that the respondent would suffer 'serious hardship' within the meaning of s 340- 5 (3) if he was not released from part of his tax debt, when that finding was not open to it on the evidence; (c) it failed to exercise its discretion as to relief given in s 340- 5 (3) of the Act. 51 The alleged errors set out in (b)(iii) and (iv) in paragraph [12] of these reasons essentially raise the same issues and can be dealt with together. The applicant says that a finding of serious hardship was not open to the Tribunal on the evidence before it and that the decision was totally unreasonable in the sense referred to by Lord Greene MR in Associated Provincial Picture Houses Limited v Wednesbury Corporation [1947] EWCA Civ 1 ; [1948] 1 KB 223 at 229-230. The principle on which the applicant relies was elaborated by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40 ; (1986) 162 CLR 24 at 41-42 where his Honour said: 'It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power ... I say "generally" because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is "manifestly unreasonable". ... However, in its application, there has been considerable diversity in the readiness with which courts have found the test to be satisfied. ... But guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion. In the context of the latter, it has been held that an appellate court may review a discretionary judgment that has failed to give proper weight to a particular matter, but it will be slow to do so because a mere preference for a different result will not suffice. ... So too in the context of administrative law, a court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on the merits.' 57 The Tribunal's decision to grant relief to a taxpayer who is in receipt of what, by community standards, is a very substantial income is initially surprising. However, the decision was based on a consideration of the evidence and the respondent's particular circumstances. As the Tribunal saw it, that income was highly vulnerable should the respondent be made bankrupt and, given the complications arising from the wife's illness, it was very likely that serious hardship would follow. On balance, I find that the Tribunal's conclusion was open to it and that the applicant has failed to establish the high standards of unreasonableness required for a decision to be reviewable on the Wednesbury ground. Whilst other minds might reasonably have disagreed with the Tribunal's inferences of fact and ultimate conclusion, the Tribunal's decision was not so unreasonable that no reasonable decision-maker could ever have come to it; see Zizza v Federal Commissioner of Taxation (1999) 42 ATR 371 at [15].


case_text: The distinction between issues of fact and law was comprehensively addressed by Mason CJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 ( Bond ) where his Honour said at 355-6: 'The question whether there is any evidence of a particular fact is a question of law ... Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law ... This is because, before the inference is drawn, there is the preliminary question whether the evidence reasonably admits of different conclusions ... So, in the context of judicial review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law...' (citations omitted.) 28 His Honour observed, however, that the authorities indicate that it is not an error of law to make a wrong finding of fact and at 356 expressed the following view, with which Brennan J (at 365) and Toohey & Gaudron JJ, (at 387) generally agreed: 'Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference in other words, the particular inference is reasonably open even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.' (emphasis added.) 29 Having referred to a line of English cases that support a 'no sufficient evidence' test in the context of judicial review of findings of fact and a further line of cases that suggested that inferences of fact were reviewable where they could not be reasonably drawn from the primary facts, his Honour added at 359-60: 'a finding of fact will then be reviewable on the ground that there is no probative evidence to support it and an inference will be reviewable on the ground that it was not reasonably open on the facts, which amounts to the same thing .' (emphasis added)


case_title: Corlette v Mackenzie (1996) 62 FCR 597

case_text: The Tribunal's conclusion as to 'serious hardship' does not conclude the matter. The decision to release the respondent from his tax obligations is clearly discretionary. The applicant submitted that the Tribunal either failed to exercise this discretion, or failed to exercise this discretion properly. The existence of the Tribunal's discretion is not in doubt. As Wilcox J observed in Corlette v Mackenzie (1996) 62 FCR 597 at 598: 'It would be extremely odd if a taxpayer who was the author of his or her misfortunes, through imprudent or extravagant expenditure, was entitled, as a matter of right, to a release of unpaid tax.'


case_text: The alleged errors set out in (b)(iii) and (iv) in paragraph [12] of these reasons essentially raise the same issues and can be dealt with together. The applicant says that a finding of serious hardship was not open to the Tribunal on the evidence before it and that the decision was totally unreasonable in the sense referred to by Lord Greene MR in Associated Provincial Picture Houses Limited v Wednesbury Corporation [1947] EWCA Civ 1 ; [1948] 1 KB 223 at 229-230. The principle on which the applicant relies was elaborated by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40 ; (1986) 162 CLR 24 at 41-42 where his Honour said: 'It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power ... I say "generally" because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is "manifestly unreasonable". ... However, in its application, there has been considerable diversity in the readiness with which courts have found the test to be satisfied. ... But guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion. In the context of the latter, it has been held that an appellate court may review a discretionary judgment that has failed to give proper weight to a particular matter, but it will be slow to do so because a mere preference for a different result will not suffice. ... So too in the context of administrative law, a court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on the merits.'


case_text: To isolate each element of this complex factual analysis and subject it, out of context, to a detailed examination of the evidence to see if there is support for that element distorts the review process. The cautions of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 against over-zealous scrutiny 'by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed' are peculiarly appropriate here; at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. 25 In the same case Kirby J said, at 291: 'The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law.' His Honour recognised, however, that a decision-maker must establish the facts on the basis of evidence but warned, at 293, against 'an over-nice approach to the standard of proof'. Such an approach, 'betrays a misunderstanding of the way administrative decisions are usually made'. 26 In this case the Tribunal, either expressly or impliedly, took into account all the factors mentioned in [23] above. On the basis of evidence about those factors it made inferences of fact about the likelihood of certain events occurring in the future. In my view the Tribunal's conclusions were open to it on the evidence. However even if one regarded the minute analysis suggested by the applicant as necessary, for the reasons given below, I am still of the view that the applicant has not demonstrated that the Tribunal made a legal error.


case_title: Powell v Evreniades (1989) 21 FCR 252

case_text: The term 'serious hardship' is not defined in the Act. In Powell v Evreniades (1989) 21 FCR 252 (' Evreniades ') Hill J considered the term as used in s 265 of the Income Tax Assessment Act 1936 (Cth). His Honour, who was concerned with serious hardship to a taxpayer's dependants upon the death of the taxpayer, observed, at 258: 'There is no definition in s 265 of what is meant by 'serious hardship' nor would one expect there to be. Each of the words in the phrase is an ordinary English word having a well understood meaning. The context in which the words appear makes it clear that the Relief Board is to consider whether the exaction of the full amount of tax would involve the dependants of a deceased taxpayer in financial difficulty which in all the circumstances can be said to be serious. The financial difficulty will be such that the dependants will be in significant need warranting action by the Relief Board to relieve their condition.' 14 Hill J accepted that there was a distinction between extreme and serious hardship noting that what will constitute either will depend on the circumstances. His Honour also said it was inappropriate to attempt to state tests of what would constitute 'serious hardship' in the abstract and commented, at 259: 'Clearly there would be severe financial hardship if the dependants of a deceased person were left destitute without any means of support. That is not to say that in any particular case something less than that will not constitute serious hardship.' These observations were referred to with apparent approval by Gummow J in Van Grieken v Veilands (1991) 21 ATR 1639 at 1644. 16 In the Amended Notice of Appeal the applicant complains that the Tribunal used the 'wrong test' in determining the prospect of 'serious hardship' for the respondent. In its written submissions it expressed its complaint somewhat differently saying that the Tribunal 'misunderstood the meaning' of the term. It seems to me that the latter expression is less likely to lead to confusion as it recognises, at least implicitly, that "serious hardship" is itself the test that has to be applied to an applicant's circumstances to decide if that applicant is eligible for relief from a tax debt. There is no other test, although there may be issues about which factors, in the particular circumstances, are or are not relevant to this determination. It is because the assessment is based so squarely on the individual circumstances that Hill J in Evreniades thought it was inappropriate to try and identify, in the abstract, the circumstances that would give rise to serious hardship. 17 This is not to say that guidance cannot be given by examples in which the test of serious hardship would clearly be met. In Evreniades, Hill J gave such an example when he recognised that there would be 'severe financial hardship' if persons were left 'destitute without any means of support'. The Taxation Ruling gives a similar example when it says that there would be serious hardship if a taxpayer were left 'without the means to achieve reasonable acquisitions of food, clothing, medical supplies, accommodation, education for children and other basic requirements'. I do not see any inconsistency in these examples. Effect must be given to the qualification of 'reasonable' in the Taxation Ruling and, consistently with the reasoning of Hill J, these examples do not exclude the possibility that something less than destitution will constitute serious hardship. Whether this is so depends on the particular circumstances of each case. 18 It is not entirely clear that the Tribunal appreciated that the Taxation Ruling allowed for consideration of individual circumstances. In commenting on the Ruling the Tribunal said that 'it is no more than policy and cannot bind this Tribunal'. This comment seems to suggest that the Tribunal misunderstood the Ruling as providing a rigid rule. As I have already explained, I do not think that this is the correct interpretation of the Ruling but, as the Tribunal did not apply any such rigid rule, the misunderstanding is not of present concern. 19 The applicant submitted that the Tribunal's rejection of the Taxation Ruling indicates that it used some other unidentified test of serious hardship to make its decision. I do not accept this submission. The Tribunal noted that what is needed for proper maintenance and support is a relative question that can only be answered with regard to the whole of the taxpayer's circumstances. The Tribunal considered all the relevant aspects of the respondent's circumstances including whether he could achieve 'acquisitions of food, clothing, medical supplies, accommodation, education for children and other basic requirements' that were not excessive or unreasonable in all the circumstances. I do not accept that the Tribunal used the wrong test. 59 The Tribunal was aware that it had discretion to grant or withhold relief even it was satisfied on the serious hardship point. This is made clear by the Tribunal's quoting from the decision of Hill J in Evreniades, where his Honour said at 262-263: 'It follows from Trebilco that in the course of consideration of the release of tax under s 265 the Board may consider not only such matters as go to the issue of serious hardship but also other matters which in the discretion of the Board may be relevant, those other matters being merely proscribed by the general principle that the discretion must be exercised bona fide and for the purposes for which it was conferred, there being jurisdiction in this Court to intervene if in the overall exercise of the discretion the Board does take into account considerations which having regard to the purposes served by s 265 , can be seen to be irrelevant,' 60 I am satisfied that the Tribunal did exercise its discretion. Although the issue of discretion is not addressed under a separate heading there is sufficient indication of this throughout the Tribunal's reasons for me to be satisfied that this is so. 61 It was accepted on all sides that the respondent's debt had not arisen because of avoidance or participation in any scheme. The applicant submitted, however, that the Tribunal failed to take into account that the respondent had earned substantial amounts of money in the relevant period without making adequate provision for his tax liability. The transcript of the hearing before the Tribunal shows that the Tribunal questioned the respondent about the issue. The respondent talked at length about the difficulties he had in the law firm where the income that gave rise to the tax debt was generated. He said that the firm had the capacity to reduce his income retrospectively so that amounts that he was anticipating he would receive did not materialise. He also referred to difficulties he had experienced on a family level in moving from interstate at a time when his wife's illness, with consequent medical expenses, first manifested itself. At the same time one child's learning difficulty and another's serious heart condition (now resolved) were diagnosed. The combination of these factors led to his neglecting his financial affairs and not realising that a debt was accumulated. His subsequent drop in income made it impossible to meet the debt.


case_text: In Schmid v Comcare (2003) 77 ALD 782 at 786, Weinberg J emphasised the 'high threshold' that needed to be met before a Court would find an error of law on the 'no evidence' ground. This high threshold was also referred to in Powley v Crimes Compensation Tribunal (1996) 11 VAR 146 where Phillips JA said at 157: 'The word 'reasonably' is used in this context, I suggest, just to emphasise that, when judging what was open and what was not open below, we are speaking of rational tribunals acting according to law, not irrational ones acting arbitrarily. The danger of using the word 'reasonably' lies in its being taken to suggest that a finding of fact may be overturned, on an appeal which is limited to the question of law, simply because that finding is regarded as 'unreasonable'. That is not the law as I understand it, at least in Australia. A finding of fact will be overturned on an appeal on a question of law only if that finding was not open.' His Honour's comments were referred to with approval by the Full Federal Court in Minister for Immigration and Multicultural Affairs v Epeabaka [1999] FCA 1 ; (1998) 84 FCR 411 at 421 - 422.


case_text: The view was echoed by Batt J in Roads Corporation v Dacakis [1995] 2 VR 508 at 520 where his Honour said: 'a finding of fact will only be open to challenge as erroneous in law if there is no probative evidence to support it (and not also if it is not reasonably open on the evidence), whilst an inference will be open to challenge as being erroneous in law if it was not reasonably open on the facts. But, as the statement of Mason, C.J. at 360 shows, there is virtually no difference between the tests.'


case_title: Schmid v Comcare (2003) 77 ALD 782


case_text: Hill J accepted that there was a distinction between extreme and serious hardship noting that what will constitute either will depend on the circumstances. His Honour also said it was inappropriate to attempt to state tests of what would constitute 'serious hardship' in the abstract and commented, at 259: 'Clearly there would be severe financial hardship if the dependants of a deceased person were left destitute without any means of support. That is not to say that in any particular case something less than that will not constitute serious hardship.' These observations were referred to with apparent approval by Gummow J in Van Grieken v Veilands (1991) 21 ATR 1639 at 1644.


case_text: The Tribunal's decision to grant relief to a taxpayer who is in receipt of what, by community standards, is a very substantial income is initially surprising. However, the decision was based on a consideration of the evidence and the respondent's particular circumstances. As the Tribunal saw it, that income was highly vulnerable should the respondent be made bankrupt and, given the complications arising from the wife's illness, it was very likely that serious hardship would follow. On balance, I find that the Tribunal's conclusion was open to it and that the applicant has failed to establish the high standards of unreasonableness required for a decision to be reviewable on the Wednesbury ground. Whilst other minds might reasonably have disagreed with the Tribunal's inferences of fact and ultimate conclusion, the Tribunal's decision was not so unreasonable that no reasonable decision-maker could ever have come to it; see Zizza v Federal Commissioner of Taxation (1999) 42 ATR 371 at [15].


case_text: The application was remitted to this Court pursuant to orders made by Gaudron J following the delivery of judgment in Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 190 ALR 601. 5 By letter dated 12 November 2004, the District Registrar of this Court notified the applicant that the Court proposed to consider whether there was an arguable case on the basis of the written material that the applicant had given to the Court and without any oral hearing. The applicant was invited to file written submissions on the question of whether the Court should make an order nisi . Written submissions were filed by the applicant on 10 December 2004. 6 I propose to deal with this application on the papers.


case_text: Res judicata arises where a cause of action relied on in proceedings has, in former proceedings, passed into judgment so that it has merged and has no longer an independent existence: see Blair v Curren [1939] HCA 23 ; (1939) 62 CLR 464 at 532 per Dixon J; Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589 at 597 per Gibbs CJ, Mason and Aickin JJ ( Anshun ). The doctrine of res judicata represents a complete bar to a new application because the cause of action is extinguished by the judgment: see Anshun at 612-3 per Brennan J.


case_title: Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589


case_text: The question to be determined on a plea of res judicata is whether the cause of action relied upon in the proceedings in which the plea is raised is the same cause of action which has been determined in the earlier proceedings. In determining that question, the Court will have regard to the substance rather than the form of the proceedings: Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 36 FCR 406 (affirmed (1993) 43 FCR 510). 9 In the draft order nisi , the applicants claim that the Tribunal failed to afford them natural justice because they had not been given an opportunity (or at least an adequate opportunity) to prepare and present favourable material at the hearing or an adequate opportunity to respond to unfavourable material. In her supporting affidavit, the applicant does not give any particulars of the material that she wished to present to the Tribunal or the unfavourable material that she did not have an opportunity to respond to. There is no evidence before me that would support the applicant's claim that she was denied natural justice. 10 The submissions filed by the applicant on 10 December 2004 raise a number of grounds of review. First, the applicant submits that the Tribunal erred in failing to determine whether, on the totality of the facts found, she had a well-founded fear of persecution. Secondly, it is argued that the Tribunal misunderstood the elements of the definition of a refugee under the Convention which were supported by the facts of the case. Thirdly, the applicant says that the Tribunal erred in finding that women in India and/or Sikh women did not constitute a social group for Convention purposes. Fourthly, the applicant claims that she was denied procedural fairness as the Tribunal forced her to attend the hearing despite the fact that she had informed it of her psychological condition. Finally, the applicant made a number of claims regarding the merits of the decision of the Tribunal. In particular, the applicant says that the Tribunal did not realise that she suffered because of her husband's involvement in the Sikh movements and that she has a fear of harm by the Indian police authorities, who have provided her with no protection.


case_text: In determining whether there has been an understanding for fixing prices, or a giving effect to such understanding, the relevant price may not necessarily be just a dollar figure: cf Australian Competition and Consumer Commission v McMahon Services Pty Ltd (2004) ATPR 41-996 at [22]. Allegations in the amended statement of claim itself indicate that this may be so in the present case. As has been mentioned, the alleged Over-arching Understanding includes a provision that the minimum price for supply by Amcor was to be $1250 and the price for Visy $1150. The particulars sub-joined to that paragraph include (sub-par (b)(ii)(B)(6)) an allegation that Mr Debney said to Mr Brown of Amcor that the price for Visy should be lower "having regard to Visy's different cost structure and different product mix". Another example is in the case of the alleged GFL & Nestle Price Understanding. Paragraph 81 alleges that in relation to the prices proposed to GFL by Visy and Amcor, Visy's prices were higher than Amcor's prices "and/or GFL held the belief that Visy's prices were higher than Amcor's prices". This rather suggests that GFL engaged in some form of analysis going beyond a comparison of two dollar figures. Similar allegations are made in relation to the understandings involving other customers. Also Mr Ward speaks of calculating a price "with reasonable accuracy". 32 Accordingly, it may (I stress these are early days) become an important part of the case to assess dollar figures charged to customers in the context of the various factors of which Mr Heathcote speaks to see whether there was an understanding on a price or a giving effect to that understanding. I do not see how the Visy respondents could adequately deal with issues of this kind without input from the individual Visy respondents and other officers of the Visy companies who are familiar with these factors and how they impact on ultimate dollar figures. Counsel for Amcor suggested that an independent expert such as an accountant be interposed, but this would be a cumbersome and inadequate substitute.


case_text: In contrast to discovery under O 15 rr 1, 5 or 8, production under O 15 r 10 does not depend on any leave being given by the Court. The reason is obvious enough. When a document is directly relied on by an opposing party, basic procedural fairness would require that a party be able to inspect the document, if only to see whether it is what it is alleged to be. It may be that the only options available to the party served with an O 15 r 10 notice are those set out in sub-rule (2), viz, production, claiming privilege, or stating that the document is not in his possession and where he believes it is. On this basis confidentiality, either of the party receiving the notice or an outsider, would not be relevant since confidentiality is not one of the recognized grounds of privilege: Ex parte Fielder Gillespie Limited [1984] 2 Qd R 339 at 341.


case_text: By the end of the hearing it was common ground that if disclosure was not to be limited in the way Amcor sought then no express formal undertakings were required. The parties and their legal representatives are bound by the rule in Harman v Secretary of State for the Home Department [1983] AC 280 which says that parties and their legal representative obtaining documents in the course of discovery in litigation give an implied undertaking to the court not to use the documents, or allow them to be used, for any purpose other than the proper conduct of the proceeding. 36 There will be an order that the ACCC produce to the respondents the documents referred to in the amended statement of claim. The motion is otherwise dismissed. The parties may, within seven days, file written submissions as to costs.


case_outcome: discussed

case_text: It is not necessary to decide this question because, assuming the confidentiality claimed by Amcor to be relevant, it is nevertheless outweighed by the centrality of the documents in question to the case against the respondents and the case they seek to make. In this regard I note that the leading Australian case on confidentiality in relation to the production of documents in litigation, the decision of the Victorian Court of Appeal in Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34, dealt with ordinary discovery and not any equivalent of O 15 r 10. Hayne JA pointed out (at 39) that the information in the documents in question, which related to calculations of the proposed financial return to the plaintiff's rival bidders for a construction contract, was not directly in issue. The material did not bear on the case which the plaintiff sought to make (at 41).


case_text: Finally, two matters should be mentioned. First, there was some mention of s 157 of the Trade Practices Act . In view of the outcome under O 15 r 10 there is no need to rely on that provision. However, I should note that I am inclined to the view that the section is not concerned with documents on which the ACCC relies. Rather, it is directed towards documents obtained by the ACCC "which tend to establish the case of the corporation or other person": subs (1)(e). The "other person" is a natural person (as distinct from a corporation) against whom a proceeding is instituted: subs (1)(c). In Trade Practices Commission v TNT Management Pty Ltd (1981) 39 ALR 665 at 671 Bowen CJ thought that the section did not extend to documents which might suggest some line of inquiry which could be of assistance to the corporation in conducting its case, although a document tending to impeach the plaintiff's case did tend to establish the defendant's case within the meaning of the section. This reasoning is inconsistent with the section applying to documents which only support the ACCC's case. Anyway, if this were not the case, the section would have simply referred to all relevant documents. 38 Secondly, the Visy respondents, in an argument adopted by Mr Carroll, submitted that in disclosing the documents to the ACCC, Amcor "must have known it was inevitable that documents such as these would be used in proceedings commenced by the ACCC against Visy, and took the risk of disclosure when facilitating serious proceedings against its major trade rival". 39 This argument should be firmly rejected. In disclosing to the ACCC (and also the Australian Stock Exchange) what it believed, on legal advice, to be unlawful conduct Amcor was complying with its legal obligations. The Court could not use Amcor's lawful action as a ground for depriving it of rights it might otherwise have. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate: Dated: 23 February 2006 Counsel for the Applicant: P J Jopling QC, C M Caleo and P Wallis Solicitor for the Applicant: Australian Government Solicitor Counsel for the first to fifth Respondents: J L Sher QC and P D Crutchfield Solicitors for the first to fifth Respondents: Arnold Bloch Liebler Counsel for the sixth Respondent: J W K Burnside QC and D Clough Solicitors for the sixth Respondent: Minter Ellison Counsel for the Amcor Group: P Solomon Solicitors for the Amcor Group: Allens Arthur Robinson Date of Hearing: 20 February 2006 Date of Judgment: 23 February 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/136.html