case_text: The fourth ground of appeal is also predicated upon the first. However, the essential complaint is that the Magistrate failed to accept that the Tribunal erred in not giving the appellant "required notice that it was rejecting her evidence, which evidence was the reason or part of the reason for the refusal of her application". It does not appear that this precise point was put to the Magistrate, although it is clear that the appellant did rely on s 424A of the Migration Act before his Honour. The Magistrate said: "The applicant also contends that the Tribunal failed to put inconsistencies to the applicant. However, the identification of inconsistencies is a matter of the Tribunal's evaluation of the evidence put forward by the applicant. It is not 'information' within the meaning of s 424A of the Act as suggested by the applicant. This issue has been authoritatively settled by the Full Federal Court in VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 at [24] ." Had the present complaint been put to the Magistrate, it would have been rejected for the reason contained in that passage. The Tribunal, having read the appellant's material and heard what she said at the hearing, decided as part of its evaluation of her evidence not to accept parts of it. That decision is not "information" within s 424A. See VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 at [24] .


case_outcome: referred to

case_text: The respondent stressed that the course taken was to buy contracts from independent third parties. It submitted that the payment of such a large proportion of the contract revenue stream as an Assignment Fee was reflective of a concentrated investment in capital structure acquired to bear fruit in the longer term and that the "true legal character" of the expenditure was to create or effect the business structure and was thus of a capital nature: Pine Creek Goldfields v Commissioner of Taxation (1999) 41 ATR 71 and Bell & Moir Corp Pty Limited v Commissioner of Taxation (1999) 42 ATR 421 at 424.


case_outcome: discussed

case_text: To not dissimilar effect, see the judgment of the Privy Council in BP Australia Limited v Commissioner of Taxation of the Commonwealth of Australia [1965] HCA 35 ; (1965) 112 CLR 386 at 399. 38 The character of the expenditure and the character of the advantage sought by the making of the expenditure is the chief, if not critical, factor in determining the character of what was paid: GP International Pipecoaters Pty Ltd v Commissioner of Taxation of the Commonwealth of Australia [1990] HCA 25 ; (1990) 170 CLR 124 at 137; Mount Isa Mines Limited v Commissioner of Taxation of the Commonwealth of Australia [1992] HCA 62 ; (1992) 176 CLR 141 at 147-149; Commissioner of Taxation of the Commonwealth of Australia v Melbourne Citylink Limited [2006] HCA 35 at [1] , [3], [76], [77] and [148]; and BP Australia 112 CLR at 394 and 398. 40 It is also helpful to reflect upon the revenue character of the payments made by the taxpayer and discussed in BP Australia [1965] HCA 35 ; 112 CLR 386. The payments were made to service station owners to tie them to selling BP's petrol. Shell and others had been tying up solo outlets, thereby threatening the business of BP and others. The Privy Council (in a judgment delivered by Lord Pearce) agreed with the approach of Dixon CJ and Kitto J who were in dissent in the High Court. The Privy Council set out with approval, at 112 CLR at 391-92, the following parts of the reasons of Dixon CJ and Kitto J: (Dixon CJ) "I do not think it was acquiring a capital asset or doing any more than so conducting its business on revenue account as to increase it and make as certain as it could that its business was continuing and also would continue, if possible, to expand. For my part I cannot think that all the course adopted changed the character of the transactions of the company from those of a continual attempt to establish its product in a consumers' market and to meet all the obstacles which arose in a long and rather troubled period to obtaining a reputation for its product." (Kitto J) "But a promise by a service station operator not to deal with oil companies other than the appellant or its allies was only the negative side of the substantial positive advantage which it was the purpose and practical effect of the agreement to produce, namely the advantage of a practical certainty that the whole of the custom of the service station, for motor spirit, would be given to the appellant or its allies for the agreed period; and what the appellant really paid its money for was that positive advantage. The purpose was not to create a situation in which to set about selling motor spirit; it was to secure the particular sales which would be necessary for the satisfaction of the service station's requirements of the period. The payment of the money was analagous to expenditure in sending a commercial traveller on his rounds to secure orders; it was part and parcel of the business of effecting sales ... The change in the organization of the wholesale trade in motor spirit from the old system of multiple pump service stations to the new `solo' system meant inevitably that every oil company, if it wanted to sell motor spirit to service stations in the future, had to accept the necessity of spending money, not at the beginning once and for all, but at the beginning and from time to time, to ensure that it would receive from as many service stations as possible the whole of their orders for limited periods" ... "... the advantage was not the acquisition of a new market, not a new framework within which to carry on trade for the future, not an extension of the appellant's selling organization to include a regiment of resellers. It was not such an exclusion of competition as adds to goodwill a negative right and thus increases the value of goodwill. It consisted simply of the practical assurance of receiving bundles of orders for motor spirit , the circumstances being such that for the foreseeable future it would be only by getting similar bundles of orders that such a trade as the appellant's could be carried on" [emphasis added] 41 As these passages reveal, the regular payment of sums to secure customers, to add incrementally to a customer base and thus to expand a business and to obtain revenue from such customers is easily able to be seen to be on revenue account. 42 Lord Pearce explained the matter as follows at 112 CLR at 398: Its real object however was not the tie but the orders which would flow from the tie. To obtain ties it had to satisfy the appetite of the retailers by paying out sums for a period of years, whose amount was dependent on the estimated value of the retailer as a customer and the length of the period. The payment of such sums became part of the regular conduct of the business. It became one of the current necessities of the trade. The test of whether these sums were payable out of fixed or circulating capital, ... tends in the present case in favour of regarding these payments as revenue expenditure. Fixed capital is prima facie that on which you look to get a return by your trading operations. Circulating capital is that which comes back in your trading operations. The sums in question were sums which had to come back penny by penny with every order during the period in order to reimburse and justify the particular outlay. If one imagines a B.P. agent justifying the price of petrol to a retailer or discussing whether price reduction was possible, it is hard to imagine him omitting the lump sum so paid (divided by the estimated gallonage) as an item in the cost per gallon. It is doubtful if he would even relegate it to overheads since it was in the forefront of the wholesaler's selling costs. Nor can one imagine the retailer demurring at such a calculation. Prima facie therefore the lump sums were circulating capital which is turned over and in the process of being turned over yields a profit or loss; they were part of the constant demand which must be answered out of the returns of the trade. This however is merely one indication and by no means concludes the matter. [emphasis added] 45 At present, I am dealing with the legal framework of the case. I will deal with the submissions of the parties shortly. For present purposes, it is unnecessary to explore the concepts of fixed and circulating capital beyond the relevant elements of the notions seen as important to the Privy Council in BP Australia [1965] HCA 35 ; 112 CLR 386 and to Dixon J in Sun Newspapers [1938] HCA 72 ; 61 CLR 337. That is, here, whether the Assignment Fees would come back, to use Lord Pearce's words, "penny by penny with every order during the period in order to reimburse and justify the particular outlay": BP Australia 112 CLR at 398. 46 It is also important to recognise that the analysis requires "both a wide survey and an exact scrutiny of the taxpayer's activities": Western Gold Mines (NL) v Commissioner of Taxation (WA) [1938] HCA 5 ; (1938) 59 CLR 729 at 740. That is, one must examine the whole business context of what was done: BP Australia 112 CLR at 399 (the "whole picture"); and see also National Australia Bank Limited v Commissioner of Taxation (1997) 80 FCR 352 at 363. 60 These submissions were, in particular in the written submissions, emphasised by seeking to draw close parallels with BP Australia [1965] HCA 35 ; 112 CLR 386. There, the advantage sought was not the tieing of the retailer sellers or the changing the capital structure of the business, but was the promotion of sales and the winning of customers. Likewise here, it was submitted, the real object was not the purchase of the rights as such, but the revenue and orders flowing from them. The payments, it was submitted, were part of the regular conduct of the business. 61 The change to the AD Program (from the use of employees) was merely a new strategy to achieve the ordinary and continuing business aim of winning customers and their orders. 62 TAPL's submissions stressed the aptness of viewing the payments as circulating capital, as Lord Pearce did in BP Australia . They also stressed the artificiality of viewing each payment and each assignment of rights in isolation and the stressed the need to look at the "whole picture". The AP Program was merely a business model adopted to deal with a continuous demand in trade (the acquisition of customers and orders) and with the recurring themes of marketing and finding the best way to organise a sales force to obtain customers on a regular and incremental basis. 63 TAPL's submission highlighted the relatively short life of the contracts which, together with the individual payments, supported the notion of incremental and regular acquisition of custom. 64 TAPL submitted that the accounting treatment was an unsafe basis for treating the payments as structural assets. 73 The above is adequate to identify the essential structure of the debate. Various refinements were made to the arguments by reference, in particular, to the terms of Sun Newspapers [1938] HCA 72 ; 61 CLR 337 , Hallstroms Case [1946] HCA 34 ; 72 CLR 634 , BP Australia [1965] HCA 35 ; 112 CLR 386 and Regent Oil v Strick [1966] AC 295 . For the reasons expressed by Barwick CJ in Cliffs International 142 CLR at 147-148 nothing further is to be gained by analysing these other cases too finely once the underlying principle is clear.


case_text: That approach, however, tended to be transformed in expression to choices between form and substance: cf Cliffs International Inc v The Commissioner of Taxation of the Commonwealth of Australia [1979] HCA 8 ; (1979) 142 CLR 140 at 158, and McLennan v Commissioner of Taxation (1989) 21 FCR 80 at 86, and the need to have reason to look through form to substance. I have already indicated my view that that adds an unnecessary complication to the test expressed in Sun Newspapers and Hallstroms Case that has been applied on numerous occasions. If one is to use the expression "form and substance", the test should be understood as requiring an assessment of what the expenditure is calculated to effect in substance from a practical and business point of view. 73 The above is adequate to identify the essential structure of the debate. Various refinements were made to the arguments by reference, in particular, to the terms of Sun Newspapers [1938] HCA 72 ; 61 CLR 337 , Hallstroms Case [1946] HCA 34 ; 72 CLR 634 , BP Australia [1965] HCA 35 ; 112 CLR 386 and Regent Oil v Strick [1966] AC 295 . For the reasons expressed by Barwick CJ in Cliffs International 142 CLR at 147-148 nothing further is to be gained by analysing these other cases too finely once the underlying principle is clear.


case_text: The distinction between fixed and circulating capital, which has been said to be "obscure": Mason J (as he then was) in Industrial Equity Ltd v Blackburn [1977] HCA 59 ; (1977) 137 CLR 567 at 576, and "debatable": Jenkins LJ in Reynolds and Gibson v Crompton (1950) 33 Tax Cas 288 at 303, was discussed by Lockhart J in QBE Insurance Group Limited v Australian Securities Commission (1992) 38 FCR 270 at 287-288 and by the Full Court in GRE Insurance Limited v Commissioner of Taxation of the Commonwealth of Australia (1992) 34 FCR 160 at 162-163. See also Commercial and General Acceptance Limited v Commissioner of Taxation of the Commonwealth of Australia [1977] HCA 47 ; (1976) 137 CLR 373 at 377 and 384 and Coles Myer Finance Limited v Commissioner of Taxation of the Commonwealth of Australia [1993] HCA 29 ; (1993) 176 CLR 640 at 663-664, 668-669 and 681-682. 82 I do not think that the accounting treatment undertaken by TAPL assists greatly. The booking of payments as an asset, amortised against the profit and loss account, can be seen, from the perspective of company accounting, as assisting the perception of profitability. However, this accounting treatment does not necessarily mean that the payments were an affair of capital. First, as a matter of principle, the accounting approach cannot be determinative of the issue: Commissioner of Taxation of the Commonwealth of Australia v James Flood Pty Limited [1953] HCA 65 ; (1953) 88 CLR 492; Arthur Murray (NSW) Pty Limited v Commissioner of Taxation of the Commonwealth of Australia [1965] HCA 58 ; (1965) 114 CLR 314 at 320; and Commissioner of Taxation v Citibank Limited (1993) 44 FCR 434 at 443-44. Secondly, there was no explanation in the evidence or submissions as to whether the accounting treatment might be equivocal about whether the payments reflected fixed or circulating capital. Thirdly, the questions whether or not the payments should be treated in the way they were to match outgoings to revenue (cf Coles Myer 176 CLR at 666), and how one could, or should, account for such a requirement, were not explored, either in the evidence or the submissions. In these circumstances, it is unnecessary, and probably unhelpful, to restructure any analysis around the concepts of fixed and circulating capital, or any like concept: cf. Parsons RW Income Taxation in Australia: Principles of Income, Deductibility and Tax Accounting (Law Book Co 1985) pp 155ff and passim. In this respect, I would simply cite and adopt the approach of Gibbs J (as he then was) in Commercial and General Acceptance Limited 137 CLR at 377: "I think the proper approach is to apply directly the tests suggested in [ Sun Newspapers [1938] HCA 72 ; 61 CLR 337 at 359-363], for the purpose of deciding whether the repayment was an expenditure referable to capital account or to revenue account, rather than to consider whether the moneys borrowed, when received, became circulating capital. The line of distinction between fixed and circulating capital is not precisely drawn, and it is of little advantage to try to answer one question by asking another to which the answer may be uncertain: cf John Smith & Son v Moore [1921] 2 AC 13 at 19-20 per Viscount Haldane, and Crompton v Reynolds and Gibson [1952] 1 All ER 888 at 895 per Lord Reid."


case_outcome: applied

case_title: Commercial and General Acceptance Limited v Commissioner of Taxation of the Commonwealth of Australia [1977] HCA 47 ; (1976) 137 CLR 373


case_title: Commissioner of Taxation (Cth) v Raymor (NSW) Pty Limited (1990) 24 FCR 90

case_text: The mere identification of the correct description of the legal rights obtained or transferred by any transaction is generally too narrow a focus for the answering of the question. This is especially so once it is recognised that almost every commercial arrangement based on contract can be analysed jurisprudentially from the perspective of buying and selling rights or choses in action. Such rights are merely the legal or juridicial building blocks of relationships built from business and practical activity. The enquiry as to whether an outgoing is on capital or revenue account looks to the business and practical effects and advantages sought in the whole context: Commissioner of Taxation of the Commonwealth of Australia v Raymor (NSW) Pty Limited (1990) 24 FCR 90 at 99 and National Australia Bank 80 FCR at 363-364.


case_text: I do not think that the accounting treatment undertaken by TAPL assists greatly. The booking of payments as an asset, amortised against the profit and loss account, can be seen, from the perspective of company accounting, as assisting the perception of profitability. However, this accounting treatment does not necessarily mean that the payments were an affair of capital. First, as a matter of principle, the accounting approach cannot be determinative of the issue: Commissioner of Taxation of the Commonwealth of Australia v James Flood Pty Limited [1953] HCA 65 ; (1953) 88 CLR 492; Arthur Murray (NSW) Pty Limited v Commissioner of Taxation of the Commonwealth of Australia [1965] HCA 58 ; (1965) 114 CLR 314 at 320; and Commissioner of Taxation v Citibank Limited (1993) 44 FCR 434 at 443-44. Secondly, there was no explanation in the evidence or submissions as to whether the accounting treatment might be equivocal about whether the payments reflected fixed or circulating capital. Thirdly, the questions whether or not the payments should be treated in the way they were to match outgoings to revenue (cf Coles Myer 176 CLR at 666), and how one could, or should, account for such a requirement, were not explored, either in the evidence or the submissions. In these circumstances, it is unnecessary, and probably unhelpful, to restructure any analysis around the concepts of fixed and circulating capital, or any like concept: cf. Parsons RW Income Taxation in Australia: Principles of Income, Deductibility and Tax Accounting (Law Book Co 1985) pp 155ff and passim. In this respect, I would simply cite and adopt the approach of Gibbs J (as he then was) in Commercial and General Acceptance Limited 137 CLR at 377: "I think the proper approach is to apply directly the tests suggested in [ Sun Newspapers [1938] HCA 72 ; 61 CLR 337 at 359-363], for the purpose of deciding whether the repayment was an expenditure referable to capital account or to revenue account, rather than to consider whether the moneys borrowed, when received, became circulating capital. The line of distinction between fixed and circulating capital is not precisely drawn, and it is of little advantage to try to answer one question by asking another to which the answer may be uncertain: cf John Smith & Son v Moore [1921] 2 AC 13 at 19-20 per Viscount Haldane, and Crompton v Reynolds and Gibson [1952] 1 All ER 888 at 895 per Lord Reid."


case_title: Commissioner of Taxation of the Commonwealth of Australia v South Australian Battery Makers Pty Limited [1978] HCA 32 ; (1978) 140 CLR 645

case_text: Stopping at this point, it is important to appreciate the content of the approach of Dixon J in Sun Newspapers [1938] HCA 72 ; 61 CLR 337 and Hallstroms Case [1946] HCA 34 ; 72 CLR 634 . It is not, as some of the respondent's submissions in this case seemed to state, that one "looks through" the legal or strict juridicial form of a transaction if "good cause" for so doing is shown. The analysis, that is the ascertainment of the character of the expenditure and what it is calculated to effect, is made from a practical and business point of view, though, of course, as part of that analysis, it is essential to understand the proper legal characterisation of what has occurred: Commissioner of Taxation of the Commonwealth of Australia v South Australian Battery Makers Pty Limited ( 1978) [1978] HCA 32 ; 140 CLR 645 at 657-60 and 661-662.


case_title: Commissioner of Taxation v Citibank Limited (1993) 44 FCR 434


case_title: Commissioner of Taxation v Melbourne Citylink Limited [2006] HCA 35

case_text: The character of the expenditure and the character of the advantage sought by the making of the expenditure is the chief, if not critical, factor in determining the character of what was paid: GP International Pipecoaters Pty Ltd v Commissioner of Taxation of the Commonwealth of Australia [1990] HCA 25 ; (1990) 170 CLR 124 at 137; Mount Isa Mines Limited v Commissioner of Taxation of the Commonwealth of Australia [1992] HCA 62 ; (1992) 176 CLR 141 at 147-149; Commissioner of Taxation of the Commonwealth of Australia v Melbourne Citylink Limited [2006] HCA 35 at [1] , [3], [76], [77] and [148]; and BP Australia 112 CLR at 394 and 398.


case_title: GP International Pipecoaters Pty Ltd v The Commissioner of Taxation of the Commonwealth of Australia [1990] HCA 25 ; (1990) 170 CLR 124


case_text: The distinction between fixed and circulating capital, which has been said to be "obscure": Mason J (as he then was) in Industrial Equity Ltd v Blackburn [1977] HCA 59 ; (1977) 137 CLR 567 at 576, and "debatable": Jenkins LJ in Reynolds and Gibson v Crompton (1950) 33 Tax Cas 288 at 303, was discussed by Lockhart J in QBE Insurance Group Limited v Australian Securities Commission (1992) 38 FCR 270 at 287-288 and by the Full Court in GRE Insurance Limited v Commissioner of Taxation of the Commonwealth of Australia (1992) 34 FCR 160 at 162-163. See also Commercial and General Acceptance Limited v Commissioner of Taxation of the Commonwealth of Australia [1977] HCA 47 ; (1976) 137 CLR 373 at 377 and 384 and Coles Myer Finance Limited v Commissioner of Taxation of the Commonwealth of Australia [1993] HCA 29 ; (1993) 176 CLR 640 at 663-664, 668-669 and 681-682.


case_text: In Hallstroms Proprietary Limited v The Federal Commissioner of Taxation [1946] HCA 34 ; (1946) 72 CLR 634, Dixon J incorporated his reasons in Sun Newspapers 61 CLR at 359-363, and elaborated upon them, saying the following at 646, 647 and 648: As a prefatory remark it may be useful to recall the general consideration that the contrast between the two forms of expenditure corresponds to the distinction between the acquisition of the means of production and the use of them; between establishing or extending a business organization and carrying on the business; between the implements employed in work and the regular performance of the work in which they are employed; between an enterprise itself and the sustained effort of those engaged in it. ... What is an outgoing of capital and what is an outgoing on account of revenue depends on what the expenditure is calculated to effect from a practical and business point of view, rather than upon the juristic classification of the legal rights, if any, secured, employed or exhausted in the process. [emphasis added] 39 Stopping at this point, it is important to appreciate the content of the approach of Dixon J in Sun Newspapers [1938] HCA 72 ; 61 CLR 337 and Hallstroms Case [1946] HCA 34 ; 72 CLR 634 . It is not, as some of the respondent's submissions in this case seemed to state, that one "looks through" the legal or strict juridicial form of a transaction if "good cause" for so doing is shown. The analysis, that is the ascertainment of the character of the expenditure and what it is calculated to effect, is made from a practical and business point of view, though, of course, as part of that analysis, it is essential to understand the proper legal characterisation of what has occurred: Commissioner of Taxation of the Commonwealth of Australia v South Australian Battery Makers Pty Limited ( 1978) [1978] HCA 32 ; 140 CLR 645 at 657-60 and 661-662. 65 The respondent accepted in its submissions that the correct approach to the determination of the issues at hand was to be found in the judgments of Dixon J in Sun Newspapers [1938] HCA 72 ; 61 CLR 337 and Hallstroms Case [1946] HCA 34 ; 72 CLR 634. 73 The above is adequate to identify the essential structure of the debate. Various refinements were made to the arguments by reference, in particular, to the terms of Sun Newspapers [1938] HCA 72 ; 61 CLR 337 , Hallstroms Case [1946] HCA 34 ; 72 CLR 634 , BP Australia [1965] HCA 35 ; 112 CLR 386 and Regent Oil v Strick [1966] AC 295 . For the reasons expressed by Barwick CJ in Cliffs International 142 CLR at 147-148 nothing further is to be gained by analysing these other cases too finely once the underlying principle is clear.


case_text: That approach, however, tended to be transformed in expression to choices between form and substance: cf Cliffs International Inc v The Commissioner of Taxation of the Commonwealth of Australia [1979] HCA 8 ; (1979) 142 CLR 140 at 158, and McLennan v Commissioner of Taxation (1989) 21 FCR 80 at 86, and the need to have reason to look through form to substance. I have already indicated my view that that adds an unnecessary complication to the test expressed in Sun Newspapers and Hallstroms Case that has been applied on numerous occasions. If one is to use the expression "form and substance", the test should be understood as requiring an assessment of what the expenditure is calculated to effect in substance from a practical and business point of view.


case_title: Mount Isa Mines Limited v The Commissioner of Taxation of the Commonwealth of Australia [1992] HCA 62 ; (1992) 176 CLR 141


case_text: It is also important to recognise that the analysis requires "both a wide survey and an exact scrutiny of the taxpayer's activities": Western Gold Mines (NL) v Commissioner of Taxation (WA) [1938] HCA 5 ; (1938) 59 CLR 729 at 740. That is, one must examine the whole business context of what was done: BP Australia 112 CLR at 399 (the "whole picture"); and see also National Australia Bank Limited v Commissioner of Taxation (1997) 80 FCR 352 at 363. 47 The mere identification of the correct description of the legal rights obtained or transferred by any transaction is generally too narrow a focus for the answering of the question. This is especially so once it is recognised that almost every commercial arrangement based on contract can be analysed jurisprudentially from the perspective of buying and selling rights or choses in action. Such rights are merely the legal or juridicial building blocks of relationships built from business and practical activity. The enquiry as to whether an outgoing is on capital or revenue account looks to the business and practical effects and advantages sought in the whole context: Commissioner of Taxation of the Commonwealth of Australia v Raymor (NSW) Pty Limited (1990) 24 FCR 90 at 99 and National Australia Bank 80 FCR at 363-364.


case_title: Pine Creek Goldfields v Commissioner of Taxation (1999) 41 ATR 71


case_title: QBE Insurance Group Limited v Australian Securities Commission (1992) 38 FCR 270


case_text: The respondent submitted that the intended lasting or enduring nature of the Customer Agreements for longer than three years, thereby justifying the size of the Assignment Fees reflected the fixed rather than the circulating nature of this capital expenditure: Regent Oil Co Limited v Strick [1966] AC 295 at 353. 71 The respondent pointed to the emphasis after 2001 of TAPL in improving the quality of lines purchased and the reduction in unsatisfactory Authorised Dealers from 2002. It was submitted that once the capital structure of the acquired contracts was in place, TAPL turned its attention to customer retention. 72 The respondent pointed to TAPL's accounting treatment as indicative of the payments as the purchase of capital assets. 73 The above is adequate to identify the essential structure of the debate. Various refinements were made to the arguments by reference, in particular, to the terms of Sun Newspapers [1938] HCA 72 ; 61 CLR 337 , Hallstroms Case [1946] HCA 34 ; 72 CLR 634 , BP Australia [1965] HCA 35 ; 112 CLR 386 and Regent Oil v Strick [1966] AC 295 . For the reasons expressed by Barwick CJ in Cliffs International 142 CLR at 147-148 nothing further is to be gained by analysing these other cases too finely once the underlying principle is clear.


case_title: Reynolds and Gibson v Crompton (1950) 33 Tax Cas 288


case_text: There was no substantive dispute between the parties as to the legal principles applying. The dispute concerned their application. The starting point was agreed to be the reasons of Dixon J (as he then was) in Sun Newspapers Limited v The Federal Commissioner of Taxation; Associated Newspapers Limited v The Federal Commissioner of Taxation [1938] HCA 72 ; (1938) 61 CLR 337 at 359-363. A number of passages in that classic analysis at 359, 360, 361, 362 and 363 are worthy of repetition in this case: The distinction between expenditure and outgoings on revenue account and on capital account corresponds with the distinction between the business entity, structure, or organization set up or established for the earning of profit and the process by which such an organization operates to obtain regular returns by means of regular outlay, the difference between the outlay and returns representing profit or loss. The business structure or entity or organization may assume any of an almost infinite variety of shapes and it may be difficult to comprehend under one description all the forms in which it may be manifested. In a trade or pursuit where little or no plant is required, it may be represented by no more than the intangible elements constituting what is commonly called goodwill, that is, widespread or general reputation, habitual patronage by clients or customers and an organized method of serving their needs. At the other extreme it may consist in a great aggregate of buildings, machinery and plant all assembled and systematized as the material means by which an organized body of men produce and distribute commodities or perform services. But in spite of the entirely different forms, material and immaterial, in which it may be expressed, such sources of income contain or consist in what has been called a "profit-yielding subject," the phrase of Lord Blackburnn United Collieries Ltd. v. Inland Revenue Commissioners ... As general conceptions it may not be difficult to distinguish between the profit-yielding subject and the process of operating it. In the same way expenditure and outlay upon establishing, replacing and enlarging the profit-yielding subject may in a general way appear to be of a nature entirely different from the continual flow of working expenses which are or ought to be supplied continually out of the returns or revenue . ... But the practical application of such general notions is another matter. The basal difficulty in applying them lies in the fact that the extent, condition and efficiency of the profit-yielding subject is often as much the product of the course of operations as it is of a clear and definable outlay of work or money by way of establishment, replacement or enlargement. ... But for the same or a like reason it is even harder to maintain the distinction in relation to the intangible elements forming so important a part of many profit-yielding subjects. For example, a profitable enterprise such as the sale of a patent medicine may depend almost entirely on advertisement. In the beginning the goodwill may have been established by a great initial outlay upon a widespread advertising campaign carried out upon a scale which it was not intended to maintain or repeat. The outlay might properly be considered to be of a capital nature. On the other hand the goodwill may have been gradually established by continual advertisement over a period of years growing in extent as it proved successful. In that case the expenditure upon advertising might be regarded as an ordinary business outgoing on account of revenue. ... In the attempt, by no means successful, to find some test or standard by the application of which expenditure or outgoings may be referred to capital account or to revenue account the courts have relied to some extent upon the difference between an outlay which is recurrent, repeated or continual and that which is final or made "once for all" , and to a still greater extent upon a distinction to be discovered in the nature of the asset or advantage obtained by the outlay. If what is commonly understood as a fixed capital asset is acquired the question answers itself. But the distinction goes further. The result or purpose of the expenditure may be to bring into existence or procure some asset or advantage of a lasting character which will enure for the benefit of the organization or system or "profit-earning subject." It will thus be distinguished from the expenditure which should be recouped by circulating capital or by working capital. ... But the idea of recurrence and the idea of endurance or continuance over a duration of time both depend on degree and comparison . As to the first it has been said it is not a question of recurring every year or every accounting period; but "the real test is between expenditure which is made to meet a continuous demand, as opposed to an expenditure which is made once for all" ... By this I understand that the expenditure is to be considered of a revenue nature if its purpose brings it within the very wide class of things which in the aggregate form the constant demand which must be answered out of the returns of a trade or its circulating capital and that actual recurrence of the specific thing need not take place or be expected as likely. Thus, in Anglo-Persian Oil Co. Ltd. v. Dale ... the establishment and reorganization of agencies formed part of the class of things making the continuous or constant demand for expenditure, but the given transaction was of a magnitude and precise description unlikely again to be encountered. Recurrence is not a test, it is no more than a consideration the weight of which depends upon the nature of the expenditure. ... There are, I think, three matters to be considered, (a) the character of the advantage sought, and in this its lasting qualities may play a part, (b) the manner in which it is to be used, relied upon or enjoyed, and in this and under the former head recurrence may play its part, and (c) the means adopted to obtain it; that is, by providing a periodical reward or outlay to cover its use or enjoyment for periods commensurate with the payment or by making a final provision or payment so as to secure future use or enjoyment. [emphasis added; footnotes omitted] 36 In Hallstroms Proprietary Limited v The Federal Commissioner of Taxation [1946] HCA 34 ; (1946) 72 CLR 634, Dixon J incorporated his reasons in Sun Newspapers 61 CLR at 359-363, and elaborated upon them, saying the following at 646, 647 and 648: As a prefatory remark it may be useful to recall the general consideration that the contrast between the two forms of expenditure corresponds to the distinction between the acquisition of the means of production and the use of them; between establishing or extending a business organization and carrying on the business; between the implements employed in work and the regular performance of the work in which they are employed; between an enterprise itself and the sustained effort of those engaged in it. ... What is an outgoing of capital and what is an outgoing on account of revenue depends on what the expenditure is calculated to effect from a practical and business point of view, rather than upon the juristic classification of the legal rights, if any, secured, employed or exhausted in the process. [emphasis added] 39 Stopping at this point, it is important to appreciate the content of the approach of Dixon J in Sun Newspapers [1938] HCA 72 ; 61 CLR 337 and Hallstroms Case [1946] HCA 34 ; 72 CLR 634 . It is not, as some of the respondent's submissions in this case seemed to state, that one "looks through" the legal or strict juridicial form of a transaction if "good cause" for so doing is shown. The analysis, that is the ascertainment of the character of the expenditure and what it is calculated to effect, is made from a practical and business point of view, though, of course, as part of that analysis, it is essential to understand the proper legal characterisation of what has occurred: Commissioner of Taxation of the Commonwealth of Australia v South Australian Battery Makers Pty Limited ( 1978) [1978] HCA 32 ; 140 CLR 645 at 657-60 and 661-662. 43 Lord Pearce in the first part of the passage cited above approached the question in a similar, if not identical, way to Dixon CJ and, especially, Kitto J: the real object of each payment was to receive orders that would flow from the tie and, as such, the payments became part of the regular conduct of BP's business. In the next paragraph, Lord Pearce refers to the distinction between fixed and circulating capital. Using that distinction, his Lordship characterised the lump sum payments as circulating capital which was turned over in the process of yielding a profit or a loss by the returns on the sales of gallonage. It is to be noticed also that Dixon J in Sun Newspapers 61 CLR at 361 (cited and emphasised above) referred to the same distinction. 45 At present, I am dealing with the legal framework of the case. I will deal with the submissions of the parties shortly. For present purposes, it is unnecessary to explore the concepts of fixed and circulating capital beyond the relevant elements of the notions seen as important to the Privy Council in BP Australia [1965] HCA 35 ; 112 CLR 386 and to Dixon J in Sun Newspapers [1938] HCA 72 ; 61 CLR 337. That is, here, whether the Assignment Fees would come back, to use Lord Pearce's words, "penny by penny with every order during the period in order to reimburse and justify the particular outlay": BP Australia 112 CLR at 398. 65 The respondent accepted in its submissions that the correct approach to the determination of the issues at hand was to be found in the judgments of Dixon J in Sun Newspapers [1938] HCA 72 ; 61 CLR 337 and Hallstroms Case [1946] HCA 34 ; 72 CLR 634. 66 That approach, however, tended to be transformed in expression to choices between form and substance: cf Cliffs International Inc v The Commissioner of Taxation of the Commonwealth of Australia [1979] HCA 8 ; (1979) 142 CLR 140 at 158, and McLennan v Commissioner of Taxation (1989) 21 FCR 80 at 86, and the need to have reason to look through form to substance. I have already indicated my view that that adds an unnecessary complication to the test expressed in Sun Newspapers and Hallstroms Case that has been applied on numerous occasions. If one is to use the expression "form and substance", the test should be understood as requiring an assessment of what the expenditure is calculated to effect in substance from a practical and business point of view. 73 The above is adequate to identify the essential structure of the debate. Various refinements were made to the arguments by reference, in particular, to the terms of Sun Newspapers [1938] HCA 72 ; 61 CLR 337 , Hallstroms Case [1946] HCA 34 ; 72 CLR 634 , BP Australia [1965] HCA 35 ; 112 CLR 386 and Regent Oil v Strick [1966] AC 295 . For the reasons expressed by Barwick CJ in Cliffs International 142 CLR at 147-148 nothing further is to be gained by analysing these other cases too finely once the underlying principle is clear. 78 The fact that the Assignment Fee was, under the first two versions of the authorised Dealer Agreement, almost the whole of the contracted revenue stream, and, under the third, about two thirds of it, may say something about the initial commercial wisdom of the setting of the Assignment Fee, but it does not persuade me that the payments were on capital account. It highlights that the advantage sought was the winning of the individual customer and the hoped-for future revenue after the initial three year period which might be brought about once the connection was made. Looked at in this way, the expenditure of money was in the ordinary business activity of winning customers. It is an illustration, perhaps, of the fineness of the judgment that needs to be made (the "basal difficulty" as Dixon J called it in Sun Newspapers 61 CLR at 360) in characterising the method used to increase the extent, condition or efficiency of the profit-yielding subject when that can be seen to be effected by the course of operations. This is especially so in a business whose structure and value is based on the attachment and goodwill of customers for the provision of services or the supply of goods. 79 When one steps back from each individual assignment and places the AD Program in its context, it amounts to one business method of seeking out, contracting and profiting from additional customers. It could have been done by many methods, including employees, commission agents or, as here, independent contractors, going out to obtain customers. The instrument used (whether employee, agent or independent contractor) would need to be remunerated. The method of remuneration does not affect the character of the advantage sought: the incremental addition to the customer base of TAPL and the future obtaining of revenue therefrom. The substantive commercial effect of the arrangement, which was entirely conformable with the legal arrangements between TAPL and the Authorised Dealers, in particular concerned with training and marketing and with the representation of the place and role of ADT, was that the Authorised Dealers and their agents operated as a marketing sales force for ADT to find and win customers. This can be seen in the arrangements for seeking out Authorised Dealers and supporting and controlling their marketing. The Authorised Dealers were not only under regulation as to how they marketed, but their place as Authorised Dealers were subject to 90 days' notice. See, in particular in this regard, [12]-[15] of Mr Brown's affidavit. 80 I do not agree with the respondent's submissions that these considerations are irrelevant to the characterisation of the payments. They are part of the whole context of the business activities of TAPL in which the character of the advantage sought by TAPL in making the payments is to be assessed. The characterisation of what TAPL was getting by making the payments of the Assignment Fees is assisted by understanding other equivalent ways of obtaining the same advantage. The same advantage could have been obtained by use of employees (as had been done) or by the use of commission agents. In each case, a relationship between TAPL and the customer could have been brought about. 81 This was not the purchasing or creation of a business structure. It was, to paraphrase and elaborate upon the words of Dixon J in Sun Newspapers 61 CLR at 360, the building of the extent of the profit-yielding subject (being the customer base of TAPL) as the product of the course of operations, by the incremental winning of customers by the chosen method of organising and remunerating an independent, but controlled, sales force. 82 I do not think that the accounting treatment undertaken by TAPL assists greatly. The booking of payments as an asset, amortised against the profit and loss account, can be seen, from the perspective of company accounting, as assisting the perception of profitability. However, this accounting treatment does not necessarily mean that the payments were an affair of capital. First, as a matter of principle, the accounting approach cannot be determinative of the issue: Commissioner of Taxation of the Commonwealth of Australia v James Flood Pty Limited [1953] HCA 65 ; (1953) 88 CLR 492; Arthur Murray (NSW) Pty Limited v Commissioner of Taxation of the Commonwealth of Australia [1965] HCA 58 ; (1965) 114 CLR 314 at 320; and Commissioner of Taxation v Citibank Limited (1993) 44 FCR 434 at 443-44. Secondly, there was no explanation in the evidence or submissions as to whether the accounting treatment might be equivocal about whether the payments reflected fixed or circulating capital. Thirdly, the questions whether or not the payments should be treated in the way they were to match outgoings to revenue (cf Coles Myer 176 CLR at 666), and how one could, or should, account for such a requirement, were not explored, either in the evidence or the submissions. In these circumstances, it is unnecessary, and probably unhelpful, to restructure any analysis around the concepts of fixed and circulating capital, or any like concept: cf. Parsons RW Income Taxation in Australia: Principles of Income, Deductibility and Tax Accounting (Law Book Co 1985) pp 155ff and passim. In this respect, I would simply cite and adopt the approach of Gibbs J (as he then was) in Commercial and General Acceptance Limited 137 CLR at 377: "I think the proper approach is to apply directly the tests suggested in [ Sun Newspapers [1938] HCA 72 ; 61 CLR 337 at 359-363], for the purpose of deciding whether the repayment was an expenditure referable to capital account or to revenue account, rather than to consider whether the moneys borrowed, when received, became circulating capital. The line of distinction between fixed and circulating capital is not precisely drawn, and it is of little advantage to try to answer one question by asking another to which the answer may be uncertain: cf John Smith & Son v Moore [1921] 2 AC 13 at 19-20 per Viscount Haldane, and Crompton v Reynolds and Gibson [1952] 1 All ER 888 at 895 per Lord Reid." 83 As to the second and third aspects of the advantage referred to by Dixon J in Sun Newspapers 61 CLR at 363, being the manner in which the advantage sought was to be used in the business and the means adopted to obtain the advantage, these considerations are bound up with what I have already said. The advantage obtained was the addition of each customer to the business of TAPL. This was to be used in the continuous and recurrent task of providing services during, and hopefully after, the contract period. The means adopted to obtain the advantage was the payment of each Assignment Fee as the cost of acquiring each customer to whom the services would be provided and from whom revenue would be extracted. This was an incremental recurrent activity brought about by the activity of the group of people charged with the responsibility of finding individual customers for TAPL. 84 In my view, the payments in question were on revenue account. 85 Subject to any variation in terms that the parties may seek, the orders that will be made in the proceedings are as follows: Proceeding NSD 1137/2205 1. The decision of the respondent notified to the applicant by letter dated 12 May 2005 to disallow the applicant's objection dated 1 July 2004 against the notice of assessment issued to the applicant on 4 August 2000 for the substituted accounting period 1 October 1998 to 30 September 1999 be set aside. 2. The said applicant's objection be allowed in full. 3. The respondent pay the applicant's costs. 4. The parties have liberty to file submissions within 7 days on the form of these orders. Proceeding NSD 319/2006 1. The decision of the respondent notified to the applicant by letter dated 23 December 2005 to disallow the applicant's objection dated 5 August 2005 against the notice of assessment issued to the applicant on 15 June 2005 for the substituted accounting period 13 October 2001 to 30 September 2002 be set aside. 2. The said applicant's objection be allowed in full. 3. The respondent pay the applicant's costs. 4. The parties have liberty to file submissions within 7 days on the form of these orders. Proceeding NSD 320/2006 1. The decision of the respondent notified to the applicant by letter dated 23 December 2005 to disallow the applicant's objection dated 5 August 2005 against the notice of assessment issued to the applicant on 15 June 2005 for the substituted accounting period 1 October 2002 to 30 September 2003 be set aside. 2. The said applicant's objection be allowed in full. 3. The respondent pay the applicant's costs. 4. The parties have liberty to file submissions within 7 days on the form of these orders. I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop. Associate: Dated: 20 July 2007 Counsel for the Applicant: Mr T F Bathurst QC and Mr M Flynn Solicitor for the Applicant: Mallesons Stephen Jacques Counsel for the Respondent: Mr D Fagan SC and Mr R Quinn Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 26 June 2007 Date of Judgment: 20 July 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1055.html


case_text: It is also important to recognise that the analysis requires "both a wide survey and an exact scrutiny of the taxpayer's activities": Western Gold Mines (NL) v Commissioner of Taxation (WA) [1938] HCA 5 ; (1938) 59 CLR 729 at 740. That is, one must examine the whole business context of what was done: BP Australia 112 CLR at 399 (the "whole picture"); and see also National Australia Bank Limited v Commissioner of Taxation (1997) 80 FCR 352 at 363.


case_outcome: cited

case_text: in relation to this ground of appeal I note that it is for the appellant to make his case to the Tribunal, and not the reverse: Abebe v The Commonwealth (1999) 197 CLR 510 at 576. The third ground of appeal appears to be, to some extent, a variation of the first ground of appeal. In any event, however, it is clear that the Tribunal had provided the appellant with an adequate opportunity to present argument and give oral evidence in that, inter alia : The appellant failed to appear before the Tribunal at the hearing scheduled on 19 February 2008, and the Tribunal was entitled to make a decision without taking any further action to allow or enable the appellant to appear before it: s 426A. No jurisdictional error is identified by this ground of appeal.


case_text: am also of the view that the subjective views of the Tribunal prior to the hearing as to defects, lack of detail or lack of specificity in evidence in the appellant's case do not constitute "information" within the meaning of s 424A(1) which needed to be communicated in writing to the appellant: VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 at [24] , cf Minister for Immigration and Citizenship v SZLFX [2009] HCA 31.


case_text: relation to the appellant's claim that he had been advised poorly by his migration agent, the Federal Magistrate observed that it is well settled that bad or negligent advice or conduct by an agent which falls short of fraud is not alone sufficient to set aside the decision of the Tribunal: SZFDR v Minister for Immigration and Citizenship [2007] HCA 35 ; (2007) 232 CLR 189. The appellant's Grounds of Appeal pursuant to his Notice of Appeal filed 9 June 2009, are as follows : The Refugee Review Tribunal ("the Tribunal") fell into jurisdictional error in that it denied procedural fairness to the appellant as well as acting in breach of its obligations under the law (in breach of section 424A of the Migration Act 1958 ). Particulars The Tribunal did not provide the Applicant with the opportunity to respond to the lack of evidence regarding his application, as the Applicant could not sufficiently understand the language or the contents of the notification letter from the Tribunal, thus also unable to respond to the Tribunals invitation, given the clearly significant language and cultural barriers. This deprived the Applicant of a fair opportunity to respond. 2. The Tribunal fell into jurisdictional error in that it failed to disclose adverse findings. Particulars The Tribunal failed to disclose to the Applicant, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason for affirming the decision under review and ensure that the Applicant fully understands the significance of the review and the consequences of it being relied on in affirming the decision that is under review. 3. The Tribunal fell into jurisdictional error in that it failed to provide adequate opportunity to present arguments and give oral evidence. Particulars The Tribunal had failed to provide the Applicant with an adequate opportunity to respond to the lack of evidence and present his arguments because the Tribunal was "unable to make a favourable decision based on the given materials alone". The letter was itself not in a language understandable by the Applicant which resulted in the Applicant being unable to respond fully and appropriately. As a result, the Applicant was unaware of the nature of the hearing and the consequences it bears on the effect of the decision to refuse his visa thus being deprived of the opportunity to arrive at that understanding to give oral evidence and present his arguments. Before me both the appellant and the Minister were represented by counsel.


case_text: 7 Division 4 of the Act provides a comprehensive procedural code in respect of the requirements of procedural fairness that must be accorded to review applicants in the conduct of reviews under that Division to the exclusion of the common law natural justice hearing rule: s 422B , SZMKG v Minister for Immigration and Citizenship [2009] FCAFC 99 at [49] - [50] . There is no obligation on the Tribunal to ensure that any correspondence to the appellant is in his native language: SZGWH v Minister for Immigration and Citizenship [2007] FCA 543 at [12] , SZHVM v Minister for Immigration and Citizenship [2008] FCA 600 at [57] . The failure of the appellant to deal with the Tribunal's correspondence and attend the hearing are in no way actions constituting a denial of procedural fairness by the Tribunal.


case_title: SZHVM v Minister for Immigration and Citizenship [2008] FCA 600


case_title: SZMKG v Minister for Immigration and Citizenship [2009] FCAFC 99


case_title: VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123


case_title: Boyle v Sacker (1888) 39 Ch D 249

case_text: Even apart from an express provision of the kind found in FCRs O 7 r 1(3)(c), it has long been held that an objection to service must be taken promptly, and that appearing in Court to answer the merits of a case precludes the taking of the objection subsequently: see Boyle v Sacker (1888) 39 Ch D 249. 41 By the operation of O 7 r 1(3), the Creditor's Petition is taken to have been served personally on the Debtor, and O 7 r 1's requirement of personal service is satisfied. By the operation of the general principle mentioned, it has ceased to be open to the Debtor to rely on the absence of personal service. If I had thought it necessary, I would have made a formal order under s 306 of the Act or O 1 r 8 of the FCRs: cf Re Florance; Ex parte Turimetta Properties Pty Ltd (1979) 28 ALR 403. 42 I am satisfied with the proof of service of the Creditor's Petition for the purposes of s 52 of the Act .


case_text: Since writing the foregoing paragraphs, I have become aware of the observations made by the Full Court in Skalkos v T & S Recoveries Pty Ltd [2004] FCAFC 321 ; (2004) 141 FCR 107 at [31] , and earlier by Tamberlin J in Silvas v Silvas [1997] FCA 206 , with which my conclusion is in accord.


case_title: Sogelease Australia Ltd v Griffin [2003] FCA 453 ; (2003) 128 FCR 399

case_text: This ground was also added by amendment over the Creditor's opposition on the second day of the hearing. The Debtor explained that he had become aware over night of the decision of Emmett J in Sogelease Australia Pty Ltd v Griffin [2003] FCA 453 ; (2003) 128 FCR 399 (" Sogelease ") in which his Honour held that reg 16.01 does not apply to the service of a bankruptcy petition, and does not negate the requirement of O 7 r 1 of the Federal Court Rules ("FCRs") of personal service of an originating process, including a bankruptcy petition. 29 I respectfully agree with Emmett J for the reasons his Honour gave. 30 The legislative framework has changed since Sogelease , but this makes no difference. The Federal Court (Bankruptcy) Rules 2005 (No 341, 2005) ("the Bankruptcy Rules") commenced on 6 February 2006, replacing the former Order 77 of the FCRs (and see the associated Federal Court Amendment Rules 2005 (No 3) (No 340, 2005)). The Bankruptcy Rules applied to service of the Creditor's Petition, which was issued on 19 April 2006. Rule 1.03 of the Bankruptcy Rules provides that the other rules of the Court apply in so far as they are not inconsistent with the Bankruptcy Rules. Rule 4.05 of the Bankruptcy Rules provides, relevantly, that unless the Court otherwise orders, at least five days before the date fixed for the hearing of a creditor's petition, the applicant creditor must "serve" on the respondent debtor, relevantly, the creditor's petition. "Service" is not, however, defined in the Bankruptcy Rules. 31 Order 7 r 1 of the FCRs provides that, subject to the provisions of O 7, originating process must be served personally. Order 7 r 2 provides that personal service is effected on an individual by leaving a copy of the document with him. The combined effect of r 4.05 of the Bankruptcy Rules and rr 1 and 2 of O 7 of the FCRs was, relevantly, to require that at least five days before the hearing of the Creditor's Petition, a copy of the Creditor's Petition be left with the Debtor. This did not happen. The Creditor's Petition was not served on the Debtor. 32 It is important, however, to understand how and when the Debtor's challenge to service arose. The circumstances are quite different from those in Sogelease . In that case, the debtor filed a conditional appearance and a notice of grounds of opposition relying solely on the ground that the petition had not been served. The debtor applied under O 9 r 7 of the FCRs for a declaration that the petition had not been duly served on him. In sum, the debtor took the objection to service from the outset. 33 In the present case, the Debtor filed a notice of grounds of opposition and affidavits and participated unconditionally on the first day of the hearing, without raising any issue as to service of the petition, and cross-examining Mr Cotsis at length. Indeed, he expressly acknowledged that he was not raising any such issue. Moreover, in his affidavit of 26 May 2006, the Debtor stated that he received a copy of the petition by facsimile transmission late on 3 May 2006. It was at the commencement of the second day of the hearing that the Debtor first raised the present issue. 34 The Debtor pointed out that unlike O 9 r 6 and Form 15 of the FCRs, Rule 2.06 and Forms 4 and 5 of the Bankruptcy Rules do not provide for conditional appearances (I note, in passing, that the Debtor did not enter an appearance). It was, however, open to the Debtor to take the point as to service in his Notice Stating Grounds of Opposition. It was also open to him to do as the debtor in Sogelease did, namely, to apply under O 9 r 7 of the FCRs for a declaration that the Creditor's Petition had not been served on him. There is no substance in the point that the Bankruptcy Rules do not apply for conditional appearances. 35 The case is clearly one of waiver of the benefit of the requirement of personal service, if waiver is possible. 36 When granting the Debtor leave to raise the third ground of opposition, I made it clear that I was doing so only to enable him to contend that personal service was a condition precedent to the Court's jurisdiction to make a sequestration order, and therefore could not be waived.


case_title: Silvas v Silvas [1997] FCA 206


case_text: Auskay International Manufacturing & Trade Pty Ltd v Qantas Airways Ltd [2008] FCA 1458 ; (2008) 251 ALR 166 , I struck out the applicant's second amended statement of claim ("the SASC"). I granted the applicant leave to file and serve a further amended statement of claim. The current pleading is its fourth amended statement of claim (the "FASC"). The respondents (other than the second, sixth and seventh respondents) seek the striking out of the whole of the FASC or parts of it under O 11 r 16 of the Federal Court Rules on the grounds that it discloses no reasonable cause of action or has a tendency to cause embarrassment or delay. In my reasons for striking out the SASC ("my previous reasons") I explained the nature of the proceeding and the issues in dispute between the applicant and the respondents. I also identified the principles which informed the exercise of the Court's powers under O 11 r 16. I do not here repeat what I have said on those matters. These reasons should be read together with my previous reasons.


case_text: law on what constitutes a "market in Australia" is far from settled. One thing that is clear is that a market which is wholly outside Australia is not comprehended by the statutory definition: see Singapore Airlines Ltd v Australian Competition and Consumer Commission (2009) 260 ALR 244 at 254; Australian Competition and Consumer Commission v Qantas Airways Ltd [2008] FCA 1976 ; (2008) 253 ALR 89 at 112. The existence of a global market which extends into the geographic boundaries of Australia does not, on the other hand, preclude a finding that there exists a "market in Australia". There can, therefore, be no objection to the applicant pleading, as it has done, that there is a global market for air freight services and that part of that market is a "market in Australia", provided that material facts are pleaded which establish the existence of those markets: see Sammy Rosso Supplies Pty Ltd v Australian Safeway Stores Pty Ltd (1998) ATPR 41-641 at 41-094 per Goldberg J.


case_text: of those material facts, in a case in which s 45A of the TPA is relied on, is the area or areas within Australia in which particular respondents compete with each other and in which they give effect to any anti-competitive agreement to which they are parties. As Middleton J said in Emirates v Australian Competition and Consumer Commission [2009] FCA 312 ; (2009) 255 ALR 35 at 41: "The services the subject of the unlawful provision must be the services supplied by the relevant party to the arrangement in competition with the other party in any market in Australia. Put another way, the area of competition has to coincide with the area of restriction imposed by the unlawful provision: see ss 45A(8) , 4D (1)(a) and (2) ...". In Emirates , Middleton J referred to the issue in the course of dealing with applications to set aside notices issued under s 155 of the TPA. His Honour held (at 52): "... the place of contracting is not determinative of the geographic locality of the relevant market. The references relied upon in Heydon J D, Trade Practices Law (Lawbook Co, subscription service) do not, in context, stand for such a proposition. As the authorities referred to previously indicate, the concept of a 'market' refers to a range of 'competitive activities' relating to the field of actual or potential activities between buyers and sellers among whom there is, or can be, close competition. It involves the 'field of rivalry', not just referrable [sic] to the place of contracting". It had been submitted to his Honour that some observations which I had made in my previous reasons supported the proposition that there could not be a market in Australia unless contracts between buyers and sellers were negotiated and entered into in Australia. One of the respondents' grounds for seeking to have the SASC struck out was that it did not identify the various routes, to and from Australia, on which the various respondents (or some of them) competed. It was in this context that I said at [21] that: "The respondents in the present proceeding are entitled to know where in Australia it is said that they compete with each other named respondent for the provision of international airfreight services. This will depend on where negotiations between the respondents and their customers take place and contracts are entered into. These material particulars are not provided. It cannot be assumed that all or even some of the respondents are in competition, in the necessary sense, in all parts of Australia. In the absence of these material facts the pleadings are deficient in a significant respect". On reflection, I should have used the word "may" instead of "will" in the second sentence of the quoted passage. It was not my intention to rule, on a pleading summons, that the place or places where the international carriers negotiated and entered into contracts with those who wished to use their services, were or would be determinative of the geographic location of the relevant markets. These were relevant but not decisive considerations. If the only substantial competitive activity which occurred between particular carriers on routes into and out of Australia took place overseas this may have suggested that the relevant market was not "in Australia" even if contracts were signed here. On the other hand, if vigorous competition and negotiations in Australia culminated in contracts being signed overseas the opposite conclusion would be likely. These matters were, therefore, material in determining the geographic parameters of the relevant market and, in particular, whether that market was "in Australia". Those parameters differed between the respondent carriers, because they did not all provide services to and from the same ports or along the same routes. For present purposes, the applicant's failure to identify where relevant negotiations took place, and where contracts were entered into and signed between the respondents and their customers, does not lead to the conclusion that it has thereby also failed to plead facts which would be determinative of the geographic boundaries of the market. The failure does, however, mean that material facts which must be provided in order to identify the global market and the part of it which constitutes a "market in Australia" have not been supplied. In its SASC the applicant failed to plead the existence of any relevant market in Australia. It sought to remedy this deficiency, in its FASC, by pleading the existence of multiple markets, variously described. This has served only to create greater confusion. The individual respondents are entitled to know the markets for the provision of international air freight services which are alleged to exist in Australia, and in which of those markets it is alleged that they compete with another respondent or respondents and who those other respondents are. The FASC does not provide this essential information.


case_title: Re Queensland Co-operative Milling Association Ltd (1976) 8 ALR 481

case_text: attempt to define a "market" with absolute precision confronts serious obstacles. The term "is a metaphor used to describe a range of competitive activities by reference to function, product and geography": see Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission [2003] FCAFC 193 ; (2003) 131 FCR 529 at 545. The concept was succinctly explained by Fisher J in Trade Practices Commission v Nicholas Enterprises Pty Ltd (1979) 26 ALR 609 at 647 where he quoted with approval a passage from a decision of the Trade Practices Tribunal: "The Trade Practices Tribunal considered the concept of market in some detail in Re Queensland Co-operative Milling Association Ltd (1975-6) 8 ALR 481 at 517, where the members said: "A market is the area of close competition between firms or, putting it a little differently, the field of rivalry between them ... Within the bounds of a market there is substitution substitution between one product and another, and between one source of supply and another, in response to changing prices. So a market is the field of actual and potential transactions between buyers and sellers amongst whom there can be strong substitution, at least in the long run, if given a sufficient price incentive"...". As Re Queensland Co-operative Milling and other authorities to which I made reference in my previous reasons make clear, a market for services will exist only if there is strong substitutability between those services on both the demand and supply sides. In its submissions, Cathay Pacific cited a number of hypothetical examples which make good this point. There may be a high degree of cross-elasticity of demand between an international air freight service from Hong Kong to Sydney and an equivalent service from Hong Kong to Melbourne. An increase in the price of the Hong Kong to Sydney service might lead to customers using the Hong Kong to Melbourne service and then using land transport to move the goods within Australia. In such circumstances it could be said that the Hong Kong to Sydney and the Hong Kong to Melbourne services were part of the same market. On the supply side, if carriers were faced with reduced demand for services on the Hong Kong to Sydney route, and an increased demand on the Hong Kong to Melbourne route, the carriers which service both routes could move aircraft and other resources from the Sydney route to the Melbourne route to meet the changed demand. It could, therefore, be said that there was a high degree of cross-elasticity of supply between the services so as to justify treating the two routes as part of a single market. It would, on the other hand, be far more difficult, if not impossible, to establish the existence of cross-elasticity of demand or supply for international air freight services on the routes from Hong Kong to Moscow and from Dubai to Sydney. The applicant, nonetheless, maintained that the field of rivalry between the respondents, and hence the market, is worldwide. As has been noted, the material facts relied on by the applicant to establish the existence of a "global market" include the possibility that carriers are able to substitute routes and modes of carriage between hubs and ports when providing services. In some cases this will be suggestive of cross-elasticity of supply. It would not matter to the customer, assuming no material variation in charges or delivery time, whether goods sent from London to Melbourne were routed through Hong Kong or Singapore. That may be accepted and the two routes may be found to form part of the same market. That example, however, deals with but one of a myriad of routes comprehended by the substitutability pleading in paragraph 34. Not all of these routes could possibly be said to form part of the same market. It could not, realistically, be asserted that close competition and strong substitution could be found for the supply of international air freight services between one particular route and every other route in the world. Rather, there are potentially thousands of discrete markets, the existence of which will depend on the type of economic analysis referred to in the authorities. In order for there to be a "market in Australia", it is necessary for competitive activity to occur within Australia. As I said at [19]: "In economic terms "a market is the field of actual and potential transactions between buyers and sellers among whom there can be strong substitution, at least in the long run, if given a sufficient price incentive": see Re Queensland Co-operative Milling Association Ltd (1976) 25 FLR 169 at 190. In the same case a market was also referred to as an "area of close competition between firms": ibid; see also Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Company Ltd [1989] HCA 6 ; (1989) 167 CLR 177 at 195 (per Deane J); at 199-200 (per Dawson J). Buyers and sellers of goods and services must negotiate and enter transactions in an area in which suppliers are engaged in close competition with each other. That area must be located within Australia". Competitive activity can take many forms. It may involve advertising campaigns by the suppliers of particular goods or services by which they attempt to attract customers. It may involve the efficiency with which services are provided or attempts to provide higher quality products. Firms may also compete by offering better quality after-sales service, or in ensuring the ready availability of spare parts. These competitive activities may take place within a geographic market even though contracts for the provision of the goods or services are negotiated or entered into elsewhere. In many cases, negotiations between seller and buyer will take place in a competitive environment in Australia and contracts will be signed here. When, however, there is a global or international market of which Australia forms part, it is possible for competitive activity of the kind earlier mentioned to take place in Australia even though contractual arrangements are formalised overseas. It has yet to be determined authoritatively that a "market in Australia" exists when goods and services are provided on a competitive basis in Australia, but the terms and conditions on which they are provided have been negotiated and agreed upon wholly outside Australia.


case_title: Sammy Russo Supplies Pty Ltd v Australian Safeway Stores Pty Ltd (1998) ATPR 41-641


case_title: Singapore Airlines Ltd v Australian Competition and Consumer Commission (2009) 260 ALR 244


case_title: State of Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] FCA 499

case_text: retention, within the group definition, of persons who indirectly pay the costs of moving goods by air again raises the "passing on" issue to which I referred at [41] [43] of my previous reasons. The extent of any resultant difficulty is much reduced by the narrowing of the definition to exclude many down-stream members. If the definition is further refined to remove the remaining difficulties, any pleading issue relating to a possible "passing on" defence will be avoided. The applicant will then be able to identify the amounts which it alleges it has paid for air freight services, directly or indirectly, to one or more of the respondents. If need be, further clarification of the amounts allegedly overpaid by reason of the cartel arrangements can be sought by the respondents. The Court would be able to direct the applicant to file a statement setting out how it intends to prove the losses which it and group members are said to have suffered: see Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] FCA 499. The respondents will then be in a position to determine whether they may plead a "passing on" defence. Whether or not such a defence is available will be a matter to be determined at trial. The applicant continues to plead that it and the represented group members suffered loss and damage because the impugned agreements caused prices for international air freight services to be "higher than [they] otherwise would have been" (paragraphs 133 and 134). The applicant has sought to meet the shortcomings which I identified in my previous reasons at [38] by asserting, in particulars subjoined to paragraph 137, that the extent of the loss and damage suffered by the applicant and group members, in part, comprised the fuel and security overcharges paid by each of them. Despite this, the problems to which I referred in my previous reasons remain. In particular, the allegations in paragraphs 133 and 134 are conclusionary without material facts to support them. The amendments to the particulars subjoined to paragraph 137 are not confined to overcharging in the course of transactions which occurred in a market in Australia. As currently framed, the particulars suggest that the applicant and the group members' loss and damage is to be calculated by reference to any occasion anywhere on which they paid surcharges which were imposed pursuant to the cartel arrangements.


case_text: attempt to define a "market" with absolute precision confronts serious obstacles. The term "is a metaphor used to describe a range of competitive activities by reference to function, product and geography": see Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission [2003] FCAFC 193 ; (2003) 131 FCR 529 at 545. The concept was succinctly explained by Fisher J in Trade Practices Commission v Nicholas Enterprises Pty Ltd (1979) 26 ALR 609 at 647 where he quoted with approval a passage from a decision of the Trade Practices Tribunal: "The Trade Practices Tribunal considered the concept of market in some detail in Re Queensland Co-operative Milling Association Ltd (1975-6) 8 ALR 481 at 517, where the members said: "A market is the area of close competition between firms or, putting it a little differently, the field of rivalry between them ... Within the bounds of a market there is substitution substitution between one product and another, and between one source of supply and another, in response to changing prices. So a market is the field of actual and potential transactions between buyers and sellers amongst whom there can be strong substitution, at least in the long run, if given a sufficient price incentive"...".


case_title: Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission [2003] FCAFC 193 ; (2009) 131 FCR 529


case_text: On 15 April 2002 a motion was filed seeking the removal of RY (now deceased) as a named applicant. The motion was purportedly brought on behalf of the applicants. It was heard on 10 December 2002 and dismissed on 13 December 2002. That dismissal was based on the inadequacy of the authorisation process in relation to the proposed replacement applicants: Anderson v State of Western Australia [2002] FCA 1558.


case_text: A subsequent judgment delivered on 2 October 2003 made detailed directions relating to timetabling for meeting dates and venues and negotiation protocols for the Ballardong application and other south west applications: Anderson v State of Western Australia [2003] FCA 1058.


case_text: On 4 December 2003, the Court decided a motion which sought amendments to the Ballardong application by contracting its boundaries so that the balance of the area covered by it would fall outside the area of the Single Noongar Claim. The contracted application was to be called the Nulla Nulla application. The motion also sought an order replacing the 16 named applicants (two of whom were then deceased) with four applicants who would be the authorised applicants for the reduced claim. There were then two dissenters within the ranks of the applicants. Serious inadequacies existed in the evidence going to the important question whether the replacement proposal had been authorised by the native title claim group. The motion to amend was dismissed: Anderson v Western Australia [2003] FCA 1423 ; (2003) 134 FCR 1. Because of the ongoing stalemate a springing order was made which would have dismissed the application on or before 31 March 2004 unless one of the following events occurred: (a) a motion was filed, agreed to by all named applicants, to amend the application or to seek further programming orders in relation to it; (b) an application was filed by members of the native title claim group pursuant to s 66B of the NT Act seeking replacement of the applicants. The springing order was averted by the filing of a new motion.


case_text: On 15 June 2004, the new motion which sought to replace the 16 named applicants with four new applicants: Reg Hayden, Doug Nelson, Dorcus Pickett and Reg Young, was dismissed. The authority for that change was said to derive from resolutions passed at a meeting held in Quairading in February 2004: Bolton on behalf of the Southern Noongar Families v State of Western Australia [2004] FCA 760. There were authorisation difficulties associated with the motion and related motions which were designed to have the effect of combining all applications in the south west into one application covering the bulk of the south west area. The process by which it was sought to achieve that result was flawed and the orders sought under s 66B for replacement of applicants in the various applications could not be made. The motion was dismissed in relation to the orders sought under that section. Amendments were also sought which would have contracted the Ballardong application so that it did not overlap with the Single Noongar claim. However because of internal difficulties among the applicants and in the absence of evidence of a truly representative meeting, I was not prepared to allow those amendments. I did however make an order for the removal of two deceased applicants: William Riley and Alex Yarran. 8 On 13 July 2007 a motion was filed seeking orders in the following terms: 1. That Alan Jones, Winnie McHenry, Doug Nelson, Reg Hayden, Saul Yarran, Ricky Nelson, RR (now deceased), Tim Riley, Dianne Taylor, Reg Yarran Jnr, Murray Yarran, Fay Slater and Carol Holmes on behalf of the Ballardong people ("the Proposed Applicant") do jointly replace the current Applicant on the grounds that: (a) RY Snr is now deceased and therefore can no longer be authorised by the claim group to make the application or deal with matters arising in relation to it; (b) Cedric Anderson, Donald Collard, Sylvia Rachel Collard and RY [who died after the filing of the motion] are no longer authorised by the claim group to make the application and to deal with matters arising in relation to it; and (c) The Proposed Applicant is authorised by the claim group to make the application and to deal with matters arising in relation to it. 2. That the applicant as re-constituted by order 1 above be granted leave (to the extent that leave may be required) to amend the application by filing a Form 19 in the form of annexure "A" to the affidavit of Simon Charles Blackshield sworn 13 July 2007. 3. Such further or other orders as to the Court seems fit. 9 The proposed amendment referred to in [2] above involved the insertion, in the application, at the end of [3] under the heading "Internal boundaries" in Attachment B of the following: (j) all areas of land and water which did not fall within the external boundary of native title determination application WAD6006 of 2003 (SNC Area 1) as at 1 July 2007. The motion was supported by a number of affidavits filed with it. It is convenient to set out in summary form the substance of these affidavits. The affidavit evidence (i) Jo-Anne Jones, affirmed 6 July 2007


case_text: Moreover, it is well established that it is no part of the decision maker's duty to make out an applicant's case for him or her; see Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170. The procedure is inquisitorial. It is for an applicant to advance whatever evidence or argument he or she wishes to advance in support of the contention of the well founded fear of persecution for a Convention reason; see Abebe v The Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510 at [187] per Gummow and Hayne JJ.


case_text: In Al-Mehdawi v Secretary of State for the Home Department [1990] 1 AC 876 (" Al-Mehdawi "), the House of Lords held that a litigant who had been deprived of the opportunity of having his case heard because of the default of his own advisers had no ground of complaint in law, or that he had been a victim of procedural impropriety, or that natural justice had been denied. Their Lordships also held that the principle applied equally to a case where the issue was one of public law and where the decision was of an administrative character. 23 Dowsett J went on to refer to the observation of Gleeson CJ in Hot Holdings Pty Limited v Creasy [2002] HCA 51 ; (2002) 210 CLR 438 (" Hot Holdings ") at [22] that procedural unfairness can occur without any personal fault on the part of the decision maker. Dowsett J stated at [25] that the Chief Justice's observations in Hot Holdings and the apparent approval by a Full Court in Barrett v Minister for Immigration, Local Government and Ethnic Affairs (1989) 18 ALD 129 (" Barrett ") at 133 of an extract from the Court of Appeal decision in Al-Mehdawi may suggest that the decision of the House of Lords should be treated with caution. Nevertheless, Dowsett J noted that the decision of the House of Lords is consistent with general principles and good policy.


case_text: The Full Court in SCAR gave as an example of the circumstances in which it had been held that the obligations imposed by s 425 have been breached as those where an invitation was given but the applicant was unable to attend because of ill health, citing Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140 ; (2003) 128 FCR 359 (" NAHF ") . 18 In NAHF at [26] to [27], Hely J considered the authorities on the current form of s 425. The effect of the authorities he referred to is that the requirements of the section are essentially formal. 19 However, Hely J went on to say at [35] that the invitation must not be a hollow shell or an empty gesture. His Honour said at [36] that to invite the applicant to a hearing which she was unable to attend because of ill health would have been an empty gesture and a denial of procedural fairness. His Honour found at [39] that, in the particular circumstances of the case, the failure on the part of the RRT to postpone the applicant's hearing until a date on which she would be available to attend the hearing constituted denial of natural justice. 20 It is clear from Hely J's reasons for judgment in NAHF that his Honour decided the matter upon the basis of a denial of procedural fairness rather than the content of the statutory obligation under s 425. Thus, it may be that the Full Court in SCAR misconstrued his Honour's decision; see NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121 at [34] . However, it is not necessary for me to decide that question, even assuming that it is open to me to do so. Nor is it necessary for me to decide whether the effect of the authorities to which Hely J referred in NAHF establish that the requirements of s 425 are, as was contended by the appellant, substantive rather than formal. 31 There was nothing in the facts of the present case to enliven an obligation of procedural fairness as was found by Hely J in NAHF . Nor can it be said that the invitation provided anything other than a real and meaningful opportunity to appear. The appellant declined the invitation to attend a hearing without providing any information to the RRT as to his reasons for doing so. 32 The appellant submitted that there are widespread complaints about migration agents but there was nothing to point to any complaint about the appellant's own migration agent.


case_text: The learned magistrate observed that the appellant cannot complain that his actions, taken in reliance on advice received from the migration agent, led to his being denied procedural fairness: B41 of 2003 in the matter of an application for a writ of mandamus prohibition and certiorari v Refugee Review Tribunal (2004) FCA 30 (" B41 ") at [25]. 11 The second ground in the application was that the RRT erred in failing to require the appellant to appear and give evidence, pursuant to s 427(3) of the Act . The appellant submitted that he made serious allegations of harm and the RRT should have made further enquiries before making its decision. 22 In B41, Dowsett J referred at [23] to two Victorian decisions to the same effect; see SBA Foods Pty Limited v Victorian WorkCover Authority & Anor [2001] VSC 276 at [274] [283] per Gillard J; see also Stefanovski v County Court of Victoria & Anor [2000] VSC 417 at [175] [190] per Gillard J. 24 Dowsett J's observations in B41 as to the approach to be taken in such matters is consistent with the remarks of Sundberg and Hely JJ in VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 134 ; (2004) 136 FCR 407 (" VNAA ") at [15] [16]. Their Honours there pointed out that the scheme of Part 7 of the Act expressly contemplates that in particular circumstances an applicant will not attend a hearing including cases involving no fault of the applicant. They said that, notwithstanding this, the RRT is authorised to proceed to decide the review in the applicant's absence. 30 It seems to me therefore that, subject to the caveat expressed by Dowsett J in B41 as to the remarks of the Chief Justice in Hot Holdings, and the remarks of the Full Court in Barrett, the learned Federal Magistrate was correct in holding at [28] of her reasons that an appellant cannot complain that his actions, taken in reliance upon the advice received from his migration agent, led to his being denied procedural fairness. Indeed, it should be noted that the Chief Justice's observations in Hot Holdings addressed the question of actual or reasonable apprehension of bias resulting from the conduct of persons other than the decision maker and the role played by those persons.


case_text: Dowsett J went on to refer to the observation of Gleeson CJ in Hot Holdings Pty Limited v Creasy [2002] HCA 51 ; (2002) 210 CLR 438 (" Hot Holdings ") at [22] that procedural unfairness can occur without any personal fault on the part of the decision maker. Dowsett J stated at [25] that the Chief Justice's observations in Hot Holdings and the apparent approval by a Full Court in Barrett v Minister for Immigration, Local Government and Ethnic Affairs (1989) 18 ALD 129 (" Barrett ") at 133 of an extract from the Court of Appeal decision in Al-Mehdawi may suggest that the decision of the House of Lords should be treated with caution. Nevertheless, Dowsett J noted that the decision of the House of Lords is consistent with general principles and good policy. 30 It seems to me therefore that, subject to the caveat expressed by Dowsett J in B41 as to the remarks of the Chief Justice in Hot Holdings, and the remarks of the Full Court in Barrett, the learned Federal Magistrate was correct in holding at [28] of her reasons that an appellant cannot complain that his actions, taken in reliance upon the advice received from his migration agent, led to his being denied procedural fairness. Indeed, it should be noted that the Chief Justice's observations in Hot Holdings addressed the question of actual or reasonable apprehension of bias resulting from the conduct of persons other than the decision maker and the role played by those persons.


case_text: Dowsett J went on to refer to the observation of Gleeson CJ in Hot Holdings Pty Limited v Creasy [2002] HCA 51 ; (2002) 210 CLR 438 (" Hot Holdings ") at [22] that procedural unfairness can occur without any personal fault on the part of the decision maker. Dowsett J stated at [25] that the Chief Justice's observations in Hot Holdings and the apparent approval by a Full Court in Barrett v Minister for Immigration, Local Government and Ethnic Affairs (1989) 18 ALD 129 (" Barrett ") at 133 of an extract from the Court of Appeal decision in Al-Mehdawi may suggest that the decision of the House of Lords should be treated with caution. Nevertheless, Dowsett J noted that the decision of the House of Lords is consistent with general principles and good policy. 26 In O'Sullivan v Repatriation Commission [2003] FCA 387 ; (2004) 74 ALD 407 at [49] , Sackville J pointed out that it is true that in the typical case of denial of procedural fairness the decision maker is responsible for the breach. His Honour observed that this does not mean that the decision maker must be personally at fault before there can be a denial of procedural fairness. He referred to the observation of Gleeson CJ in Hot Holdings. 28 Indeed, in STKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 546 at [19] , Selway J was of the view that Ex parte A does not reflect the law in Australia. His Honour considered that there may be some limited circumstances where it might be arguable that acts by Departmental officers or others could invalidate a Tribunal decision even though the Tribunal was unaware of them; see at [22] citing, inter alia, Hot Holdings at 455-456 per Gaudron, Gummow and Hayne JJ. 30 It seems to me therefore that, subject to the caveat expressed by Dowsett J in B41 as to the remarks of the Chief Justice in Hot Holdings, and the remarks of the Full Court in Barrett, the learned Federal Magistrate was correct in holding at [28] of her reasons that an appellant cannot complain that his actions, taken in reliance upon the advice received from his migration agent, led to his being denied procedural fairness. Indeed, it should be noted that the Chief Justice's observations in Hot Holdings addressed the question of actual or reasonable apprehension of bias resulting from the conduct of persons other than the decision maker and the role played by those persons.


case_text: The appellant submitted that refugees are vulnerable people and that this gave rise to a duty of fairness upon the RRT to notify the appellant that the application was doomed to failure if he did not come to a hearing. He relied upon the oft quoted passage from the judgment of Mason J in Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 585 that procedural fairness is a flexible concept which must be adapted to the circumstances of the particular case. 34 However, in my opinion, the notice sent to the appellant on 10 November 2003 made it plain that the application would not be decided favourably to the appellant "on the papers".


case_text: Emmett FM noted that the RRT has power to summon a person to give evidence, but there is no obligation or duty to do so: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 (" SGLB") . 13 The magistrate concluded that the RRT's decision was not affected by jurisdictional error and the application was dismissed. 14 The notice of appeal filed on 26 September 2005 contains the same grounds as were pursued before the Federal Magistrate in the application for review. 39 In SGLB at [43], Gummow and Hayne JJ held that, although s 427 of the Act confers power on the RRT to obtain a medical report, the Act does not impose any duty or obligation to do so. The same principle must apply to the power to summons a person to give evidence under s 427(3).


case_text: In written submissions in support of the appeal, the appellant relied upon the following statement of principle in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 ; (2003) 128 FCR 553 (" SCAR ") at [37]:- "...it is also clear that s 425 of the Act imposes an objective requirement on the Tribunal. The statutory obligation upon the Tribunal to provide a `real and meaningful´ invitation exists whether or not the Tribunal is aware of the actual circumstances which would defeat that obligation." 17 The Full Court in SCAR gave as an example of the circumstances in which it had been held that the obligations imposed by s 425 have been breached as those where an invitation was given but the applicant was unable to attend because of ill health, citing Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140 ; (2003) 128 FCR 359 (" NAHF ") . 20 It is clear from Hely J's reasons for judgment in NAHF that his Honour decided the matter upon the basis of a denial of procedural fairness rather than the content of the statutory obligation under s 425. Thus, it may be that the Full Court in SCAR misconstrued his Honour's decision; see NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121 at [34] . However, it is not necessary for me to decide that question, even assuming that it is open to me to do so. Nor is it necessary for me to decide whether the effect of the authorities to which Hely J referred in NAHF establish that the requirements of s 425 are, as was contended by the appellant, substantive rather than formal.


case_text: In NADK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 184 , a Full Court dealt with a claim by an applicant that his migration agent did not notify him of the hearing. The Full Court concluded at [16] that "the asserted fact that the applicant was unaware of the Tribunal's hearing was of no legal relevance". Bennett J referred to this decision in SZBCS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1457 at [30] . Her Honour also referred to the observations of Sundberg and Hely JJ in VNAA that the RRT is authorised to proceed even though an applicant's failure to attend involved no fault on his or her part.


case_text: It is clear from Hely J's reasons for judgment in NAHF that his Honour decided the matter upon the basis of a denial of procedural fairness rather than the content of the statutory obligation under s 425. Thus, it may be that the Full Court in SCAR misconstrued his Honour's decision; see NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121 at [34] . However, it is not necessary for me to decide that question, even assuming that it is open to me to do so. Nor is it necessary for me to decide whether the effect of the authorities to which Hely J referred in NAHF establish that the requirements of s 425 are, as was contended by the appellant, substantive rather than formal.


case_text: In O'Sullivan v Repatriation Commission [2003] FCA 387 ; (2004) 74 ALD 407 at [49] , Sackville J pointed out that it is true that in the typical case of denial of procedural fairness the decision maker is responsible for the breach. His Honour observed that this does not mean that the decision maker must be personally at fault before there can be a denial of procedural fairness. He referred to the observation of Gleeson CJ in Hot Holdings.


case_title: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155


case_text: Sackville J went on at [50] to point out that one of the cases cited by Gleeson CJ for this proposition was R v Criminal Injuries Compensation Board; Ex parte A [1999] UKHL 21 ; [1999] 2 AC 330 (" Ex parte A "). Sackville remarked at [52] that the High Court has not greeted the decision in Ex parte A with "unalloyed enthusiasm"; see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte S134/2002 [2003] HCA 1 ; (2003) 211 CLR 441 at [37] [42]. 28 Indeed, in STKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 546 at [19] , Selway J was of the view that Ex parte A does not reflect the law in Australia. His Honour considered that there may be some limited circumstances where it might be arguable that acts by Departmental officers or others could invalidate a Tribunal decision even though the Tribunal was unaware of them; see at [22] citing, inter alia, Hot Holdings at 455-456 per Gaudron, Gummow and Hayne JJ.