case_text: Counsel for the respondent also submitted that the proper principles applicable to determining whether to extend time are those stated in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 ('Hunter Valley Developments') . 38 Further, counsel for the respondent submitted that there is no adequate explanation for the applicant's delay in seeking to bring an application for review of the Committee's determination in its final report. The respondent submitted that whatever the applicant's financial position was, it is apparent that the applicant had access to legal advice throughout the process. Lengthy representations were made on his behalf in response to the draft report by the Committee, and further representations were made in response to the respondent's draft determination. 39 Further, counsel for the respondent submitted that after the date of the handing down of the final report the applicant took no steps to protest the findings in the Committee's final report. He submitted, further, that the respondent had subsequently taken action on the basis that the final report of the Committee was unchallenged and effective. A draft determination was made, submissions were sought from the applicant, and provided, and a final determination was made. No challenge was made to the lawfulness of the Committee's final report even when the applicant commenced his application for review in this Court in February 2005. 41 I accept counsel for the respondent's submissions that an expression of the appropriate principles to apply in determining whether to extend the time for the making of an application for review provided for under s 11(3) of the ADJR Act, is to be found in the observations of Wilcox J in Hunter Valley Developments at 348-349. I intend to apply those observations to the facts of this case. Of particular relevance to this case is the following observation at 348-349: '2. Action taken by the applicant, other than by making an application for review under the Act, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision-maker aware that he contests the finality of the decision (who has not "rested on his rights": per Fisher J. in Doyle v. Chief of Staff (1982) 42 A.L.R. 283 at 287) and a case where the decision-maker was allowed to believe that the matter was finally concluded. Compare Doyle, Chapman, Ralkon and Douglas v. Allen (1984) 1 F.C.R. 287 with Lucic at 414-415 and Hickey v. Australian Telecommunications Commission (1983) 48 A.L.R. 517 at 519. The reasons for this distinction are not only the "need for finality in disputes" (see Lucic at 410) but also the "fading from memory" problem referred to in Wedesweiller v. Cole (1983) 47 A.L.R. 528. ' 42 Firstly, I deal with the applicant's explanation for the delay. In effect, the applicant's case is that he did not know that there was a time limit within which to 'appeal' from the findings of the final report of the Committee and he did not get legal advice because he was without financial means. In my view, this is not a satisfactory explanation for the delay in failing to commence the application for review within the prescribed period. I accept the respondent's submissions that whatever the state of the applicant's financial position was at the material time, the evidence shows that the applicant was able to obtain the legal advice and assistance of a solicitor both before and after the final report of the Committee had been made. This is evident from the fact that the applicant used the services of a solicitor to make submissions in response to the draft report of the Committee and the draft determination of the respondent. 43 Further, a relevant consideration in relation to the applicant's delay is the applicant's 'extra curial' conduct of the kind referred to by Wilcox J in Hunter Valley Developments . The conduct in question is assessed by reference to the manner in which the applicant acted after becoming aware of the determination which he now seeks to impugn. 44 It is significant that the draft report was only forwarded by the Committee to the respondent on 28 June 2004 - after the expiry of the prescribed 28 day period for the making of an application under the ADJR Act; and that the respondent then proceeded, relying upon the findings in the final report of the Committee, to make a draft determination. 45 In the draft determination the respondent proposed various 'directions' which are set out in [19] above. These directions included a direction that the applicant be fully disqualified for a period of two months from the time when any final determination takes effect. It is also significant that on the applicant's instruction, the solicitor, during the course of making submissions in relation to the draft determination of the respondent, stated that the applicant was prepared to 'accept' all the 'determinations' made by the respondent save for the direction in relation to the full disqualification for two months. The applicant adopted this position, notwithstanding that the respondent had in its written reasons made it plain that it had accepted and was acting on the findings made in the final report of the Committee and that its determination and directions were based on those findings. The position of the applicant in limiting his challenge to the draft determination to the proposed full disqualification for two months penalty, is consistent with his conduct in not seeking to impugn the final report of the Committee by way of an application for review; and, indeed, with his position at the time of the filing of the application for review in this Court on 10 February 2005. By this conduct, the applicant manifested an intention not to challenge the lawfulness of the final report of the Committee and he permitted the respondent to embark upon the draft and final determination process a process in which he participated without advising the respondent that he did not accept the determination in the final report, indicating that his only challenge was to one element of the penalty proposed to be imposed by the respondent.


case_outcome: cited

case_title: Megitt Overseas Limited v Grdovic [1998] 43 NSWLR 527

case_text: As to the first argument, there is authority that it is improper to grant a contested adjournment of legal proceedings for the purpose of enabling one party to take advantage of a proposed amendment of an enacted law ( Meggitt Overseas Limited v Grdovic [1998] 43 NSWLR 527). That authority could apply by analogy to the circumstances of the delay by the Committee in this case. 50 However, in considering the merits of the applicant's case for the purposes of determining whether to extend the time for the making of the proposed application for review, it is necessary to consider whether any effective relief could be granted to the applicant on this ground at the hearing of the review application. In my view, because the legislation which was passed has retrospectively validated the adjudicative referral in question, no effective relief would be available to the applicant on that ground at the hearing of the review application. 51 I now deal with the second possible argument in relation to delay. In my view, it is apparent from the transcript of the hearing that at the conclusion of the evidence at the end of the hearing on 26 July 2001, the Committee expressed its concerns in relation to the complaints made against the applicant. A reading of this transcript shows that the concerns were expressed in a way which was adverse to the applicant and that the Chairman of the Committee invited the applicant to make further submissions either orally or in writing to the Committee prior to the Committee preparing its draft report. The applicant responded to that invitation as follows: 'No, there is nothing more to [add] because the whole thing has been explained.'


case_outcome: applied

case_text: I decline to make an order for the joinder of the members of the Committee and the Director. I do so by applying, by analogy, the principle that a court will not usually exercise its discretion to allow an amendment to join a person as a party to an application who has a good defence under a period of limitation (see, Bridge Shipping Pty Ltd v Grand Shipping SA [1991] HCA 45 ; (1991) 173 CLR 231 at 236).


case_text: In Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67 ; (2000) 177 ALR 491 at 496: 'An applicant's inability to obtain favourable legal advice is not a ground for extending the time for seeking mandamus or the ancillary writ of certiorari. Upon the expiry of the time for the issue of a constitutional writ against a decision or judgment, the respondent has a vested right to retain the judgment or decision. Its rights should not be dependant on whether the applicant can at some future time obtain a favourable legal opinion that he or she has an arguable case. In addition, the efficacy of public acts, decisions and judgments cannot be the hostage of an applicant's search for favourable legal advice.' 63 Although those remarks were addressed specifically in relation to the time limits for obtaining prerogative relief under the High Court Rules, the observations have wider applicability in relation to public acts and are germane to the facts of this case.


case_text: Delay and acquiescence have been described as defences available to a respondent in relation to relief sought by way of certiorari in the sense that a court may, in the exercise of its discretion, refuse relief on those grounds. In assessing whether there has been an unwarranted delay, such as would equate with a limitation defence, it is significant that s 106L(3) of the Act provides that the Committee is to deliver its final report to the respondent no earlier than one month after the date that a copy of its final report is delivered to the person under review. This period equates with the prescribed period for bringing an application for review under the ADJR Act and is an indication of legislative intent as to the time within which applications for review of the Committee's final report should be brought (see the observations of Branson J in Joseph v Health Insurance Commission [2005] FCA 1042 at [6] ). 65 When assessed by reference to that one month period, a delay of 14 months, in all the circumstances of this case, amounts to an unwarranted delay which would, in the exercise of the Court's discretion, lead to the refusal of relief. The proposed respondents have, in my view, a good defence, and I would, therefore, decline to order that they be joined as parties to the application. 66 The applicant's application is, accordingly, dismissed with costs. I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. Associate: Dated: 18 May 2006 Counsel for the Applicant: Ms F E Johnson Solicitor for the Applicant: Butcher Paull & Calder Counsel for the Respondent: Mr S Barbaro Solicitor for the Respondent: Minter Ellison Date of Hearing: 13 December 2005 Date of Judgment: 18 May 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/589.html


case_outcome: followed

case_text: The principles applicable to this application have been discussed by Lindgren J in Re Insurance Australia Group Ltd [2003] FCA 581 ; (2003) 128 FCR 581 and Re NuSep Ltd [2007] FCA 613. Applying those principles, I am satisfied that there is a discretion to make an order to regularise the present situation and I am satisfied that, subject to the question of substantial injustice, the inadvertent nature of the irregularity and the short time span involved favour grant of the relief sought.


case_title: Re NuSep Ltd [2007] FCA 613


case_outcome: referred to

case_text: As I understand it, both parties were agreed that the answer to this dilemma is found in the decision of the High Court in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88. 55 In VEAL , the High Court considered the Tribunal's obligation to reveal information provided to it by the Department. Two Eritrean nationals arrived in Australia and applied for protection visas. A delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused their applications. They applied to the Refugee Review Tribunal for reviews of those decisions. The Department received a letter from a third party (who gave his name and address) which made allegations against the male applicant. The author of the letter asked that the information be kept secret. The Department sent the letter to the Tribunal. The Tribunal dismissed the applications for review and affirmed the delegate's decisions. It did not tell the applicants of the letter or of the allegations made in it. The Tribunal said that it placed no weight on the information contained in the letter. The Tribunal considered that it was in the public interest that the matter be regarded as non-disclosable information for the purpose of s 424A(3)(c) of the Act , and made a direction under s 440(1) of the Act that the content of the letter not be published or disclosed. 58 The decision in VEAL suggests that in this case the Minister was obliged to disclose to the applicant the substance of the information in the Parole Board reports. The Minister sought to meet the difficulty caused by the fact that he had not done so by submitting that the obligation did not arise in this case because the information in the Parole Board reports was either information from the applicant, or was information which was not adverse to the applicant or was information he already had from other sources. The other sources identified by the applicant were a report of Mr Sowerbutts dated 29 August 2006 and Ms Beevor's report. A decision-maker's obligation of disclosure where the common law rules of procedural fairness apply has been discussed in a number of cases. I need go no further than refer to the two well-known decisions of Kioa v West (supra) at 628-629 per Brennan J; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 588-592.


case_text: The decision in VEAL suggests that in this case the Minister was obliged to disclose to the applicant the substance of the information in the Parole Board reports. The Minister sought to meet the difficulty caused by the fact that he had not done so by submitting that the obligation did not arise in this case because the information in the Parole Board reports was either information from the applicant, or was information which was not adverse to the applicant or was information he already had from other sources. The other sources identified by the applicant were a report of Mr Sowerbutts dated 29 August 2006 and Ms Beevor's report. A decision-maker's obligation of disclosure where the common law rules of procedural fairness apply has been discussed in a number of cases. I need go no further than refer to the two well-known decisions of Kioa v West (supra) at 628-629 per Brennan J; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 588-592.


case_text: The power in s 501(2) may be exercised by the Minister or, by reason of s 498 , by his or her delegate. Under s 499 of the Act the Minister may give written directions to a person or body exercising the power in s 501(2) about the exercise of the power. The Minister has given a written direction under s 499 and it is referred to as, "Direction Visa Refusal and Cancellation under s 501(2) No 21" ("Direction No 21"). If the Minister decides that he will personally exercise the power in s 501(2) , he is not bound by Direction No 21 although he may choose to follow it: Howells v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 327 ; (2004) 139 FCR 580 at 585 [31] . 9 If the Minister or his delegate decides to cancel a visa under s 501(2) a written notice setting out the reasons for the decision (among other matters) must be given to the applicant. Section 501G provides: "(1) If a decision is made under subsection 501(1) or (2) or 501A(2) or section 501B or 501F to: (a) refuse to grant a visa to a person; or (b) cancel a visa that has been granted to a person; the Minister must give the person a written notice that: (c) sets out the decision; and (d) specifies the provision under which the decision was made and sets out the effect of that provision; and (e) sets out the reasons (other than non-disclosable information) for the decision; and (f) if the decision was made by a delegate of the Minister under subsection 501(1) or (2) and the person has a right to have the decision reviewed by the Administrative Appeals Tribunal: (i) states that the decision can be reviewed by the Tribunal; and (ii) states the time in which the application for review may be made; and (iii) states who can apply to have the decision reviewed; and (iv) states where the application for review can be made; and (v) in a case where the decision relates to a person in the migration zone--sets out the effect of subsections 500(6A) to (6L) (inclusive); and (vi) sets out such additional information (if any) as is prescribed. (2) If the decision referred to in subsection (1): (a) was made by a delegate of the Minister under subsection 501(1) or (2); and (b) is reviewable by the Administrative Appeals Tribunal; and (c) relates to a person in the migration zone; the notice under subsection (1) that relates to the decision must be accompanied by 2 copies of every document, or part of a document, that: (d) is in the delegate's possession or under the delegate's control; and (e) was relevant to the making of the decision; and (f) does not contain non-disclosable information. (3) A notice under subsection (1) must be given in the prescribed manner. (4) A failure to comply with this section in relation to a decision does not affect the validity of the decision." 10 Section 501G(1) engages s 25D of the Acts Interpretation Act 1901 (Cth) which provides as follows: "Where an Act requires a tribunal, body or person making a decision to give written reasons for the decision, whether the expression "reasons", "grounds" or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based."


case_text: The High Court said that the common law principles of procedural fairness required the Tribunal to advise the applicants of the substance of the allegations in the letter. The Tribunal was not required to give the applicants a copy of the letter or provide any information which would have identified the author of the letter (at [7]). The Court referred to certain statutory provisions, but said that in the circumstances the case was to be decided by reference to the common law principles of procedural fairness. The Court referred to the reasons for judgment of Brennan J in Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 628-629. The Court concluded that the Tribunal had an obligation to draw the applicants' attention to the information in the letter. The Court then said (at 98 [22]-[23]): "The fact that the author of the letter asked the Department to keep it secret did not mean that equitable principles about confidential information were to be engaged in deciding what course the Tribunal took. Rather, the nature and extent of the Tribunal's obligation to disclose the information were regulated by the Act and the obligation to accord the appellant procedural fairness. In this case, the particular content of the obligation to accord procedural fairness was to be identified having regard not only to the particular provisions of the Act that regulated the Tribunal's work but also to the scope and objects of the Act as a whole. In that latter regard, it is necessary to keep two propositions at the forefront of consideration. First, the Act required that those entitled to a particular visa be granted the visa they sought, and that those not entitled be refused. Secondly, the Act committed the decision to grant or refuse a visa to the Executive government and the Tribunal was likewise exercising executive power, not judicial power." 57 The Court said that there was a public interest in the Executive government, when making its decision, not being denied information that has been or may later be supplied by an informer (at 98 [24]). That public interest and the rules of procedural fairness could be accommodated by a requirement that the applicant be advised of substance of the allegations and asking him to respond to those allegations (at 100 [29]). The Court concluded that the Tribunal had not complied with the rules of procedural fairness. 58 The decision in VEAL suggests that in this case the Minister was obliged to disclose to the applicant the substance of the information in the Parole Board reports. The Minister sought to meet the difficulty caused by the fact that he had not done so by submitting that the obligation did not arise in this case because the information in the Parole Board reports was either information from the applicant, or was information which was not adverse to the applicant or was information he already had from other sources. The other sources identified by the applicant were a report of Mr Sowerbutts dated 29 August 2006 and Ms Beevor's report. A decision-maker's obligation of disclosure where the common law rules of procedural fairness apply has been discussed in a number of cases. I need go no further than refer to the two well-known decisions of Kioa v West (supra) at 628-629 per Brennan J; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 588-592. 59 In this case the Minister presented a schedule of the information in the Parole Board reports and of where he said it either came from the applicant, or was not adverse or was known to the applicant from other sources. The Minister did not submit that there was not information in the Parole Board reports which was "credible, relevant and significant to the decision to be made" ( Kioa v West (supra) at 629 per Brennan J). There are obvious difficulties with the Minister's submission. For example, unless the same words are used, it will sometimes be difficult to determine if the information provided by the applicant or said to have been available from another source is actually the same information which the applicant claims ought to have been disclosed. 60 In this case, there clearly was information in the Parole Board reports which was adverse and was not provided by the applicant or to him from other sources. That information related to concerns about where the applicant proposed to live in relation to his victim. The substance of that information should have been disclosed to the applicant. The applicant now has the Parole Board reports and it is not necessary for me to go further and express a conclusion in relation to each piece of information in the Parole Board reports. 61 The applicant has established a breach of the rules of procedural fairness. 62 The applicant submitted that by reason of the decision-maker's conduct he was denied the opportunity to put his case and has been denied procedural fairness. Of course, the Minister and the officers of his Department did not prevent the applicant from putting forward whatever information he considered appropriate; in fact, he was encouraged by an officer of the Minister's Department to put his best foot forward. However, his case is that by reason of a representation made to him he did not put forward all the information he would otherwise put forward. 63 Two decisions of the High Court have dealt with the question of whether there had been a breach of the rules of procedural fairness in circumstances where an applicant, as a result of something said by the decision-maker, did not present to the decision-maker all of the evidence and submissions he would otherwise have presented.


case_title: Minister for Immigration and Multicultural and Indigenous Affairs; Re, Ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1

case_text: A person who is facing the cancellation of his or her visa under s 501(2) must be accorded procedural fairness: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1; Re Minister for Immigration and Multicultural and Indigenous Affairs, Ex parte Palme [2003] HCA 56 ; (2003) 216 CLR 212.


case_title: Minister for Immigration and Multicultural and Indigenous Affairs; Re, Ex parte Palme [2003] HCA 56 ; (2003) 216 CLR 212


case_text: In Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 76 ALJR 966 (" Muin "), a delegate of the Minister for Immigration and Multicultural Affairs refused to grant applications by two applicants for protection visas. Both applicants sought review by the Refugee Review Tribunal. Of present relevance is one aspect of the case. The applicants were led to believe that the Tribunal had certain documents called Part B documents which had been before the delegate. That belief was in each case brought about by conduct by the Tribunal. 66 A majority of the Court found that in each case there had been a failure to accord procedural fairness in relation to the Part B documents. Gaudron J said that there was a breach of the rules of procedural fairness because a reasonable person in the applicant's position would have considered it unnecessary to direct the Tribunal's attention to material favouring them in the Part B documents by reason of the Tribunal's conduct, that they refrained from doing so and the Tribunal did not have regard to the documents (at 979-980, [62]-[68]). Hayne J, after noting that a number of what would have otherwise been difficult factual matters had been agreed between the parties, said (at 1009 [256]-[257]): "The consequence of what has been agreed between the parties to each of the present actions is that each plaintiff was led to believe, by what the tribunal said, that it had material relevant to that plaintiff's claim which it did not. The agreed facts are silent about whether the tribunal was aware of the information and opinions contained in the Part B documents. It may have been, but more importantly, it may not. It follows, therefore, that in each case, the plaintiff was denied procedural fairness. Neither plaintiff was given an opportunity to place before the tribunal the material and submissions which, on the agreed facts, it is accepted that he or she would have submitted if not mistaken about what was before the tribunal. Moreover, it also follows from the parties' agreement that each plaintiff would have made further submissions and sought to adduce further evidence that the tribunal did not comply with the statutory provisions governing its conduct of the reviews of the plaintiffs' cases." 67 With respect to this last observation by Hayne J, I note that in this case I am not concerned with possible breaches of statutory provisions but, rather, only with the common law requirements. Gummow J (at 996 [171]) and Kirby J (at 999 [194]) agreed with Hayne J's reasoning on this point. 68 This case is similar to Aala and Muin in that an applicant would have conducted his case differently in the sense that he would have presented more information, which cannot be said to be irrelevant, but for the conduct of, or representation by, the decision-maker. Where it differs is at a factual level in that in this type of case it will often be difficult to prove as a matter of fact that the applicant would have conducted his case differently. However, I am satisfied of that fact in the particular circumstances of this case and therefore the applicant has established a breach of the rules of procedural fairness on this ground.


case_title: Refugee Review Tribunal, Re; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82

case_text: In Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 (" Aala ") an applicant who claimed he was a refugee and therefore entitled to a protection visa was told by the Refugee Review Tribunal that it had read all the papers from previous applications and Federal Court proceedings. Relying on that statement the applicant gave no further evidence. The Tribunal rejected the application for review on the basis of a finding that the applicant's claim for refugee status was concocted. In fact, the Tribunal did not have certain unsworn statements by the applicant dealing with those matters and which had been submitted to the Federal Court. The High Court held that the Tribunal had acted in breach of the rules of natural justice and constitutional writs were issued. Each member of the Court was of the view that the Tribunal had misled, albeit innocently, the applicant and that that had caused him to conduct his case in a different way from how he would otherwise have conducted his case. In other words, it was concluded that had the applicant known the correct position he would have put additional material before the Tribunal: Gleeson CJ at 88-89 [3]-[4], Gaudron and Gummow JJ at 113-114 [70], McHugh J at 122 [103], Kirby J at 130 [128], Callinan J at 152-153 [206]-[209], [211]. It is not necessary to refer to the Court's discussion of the submission made in that case that relief should be refused because the presentation of additional material would have made no difference to the result. 68 This case is similar to Aala and Muin in that an applicant would have conducted his case differently in the sense that he would have presented more information, which cannot be said to be irrelevant, but for the conduct of, or representation by, the decision-maker. Where it differs is at a factual level in that in this type of case it will often be difficult to prove as a matter of fact that the applicant would have conducted his case differently. However, I am satisfied of that fact in the particular circumstances of this case and therefore the applicant has established a breach of the rules of procedural fairness on this ground.


case_text: paragraph 17 of the reasons for judgment, delete the quotation mark that appears after the words 'primary tax'. I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti. Associate: Dated: 6 October 2006 FEDERAL COURT OF AUSTRALIA IEL Finance Limited v Commissioner of Taxation [2006] FCA 1293 PRACTICE AND PROCEDURE summary judgment entered upon strike-out of initiating processes comprising statements of facts, issues and contentions pleaded by three corporately related taxpayers in complex revenue disputes partial dismissal of taxpayers' appeals primary ground of dismissal being abuse of process secondary ground of dismissal Anshun estoppel appropriate form of orders as to dismissal of parts of initiating processes of each applicant order to be made as to costs Taxation Administration Act 1953 (Cth) ss 14ZZO , 14ZZP , 14ZR (1), 14ZU , 14ZW , and 14ZZ Federal Court of Australia Act 1976 (Cth) ss 22 and 23 Federal Court Rules O 20 subrule 2(1) IEL Finance Limited and Others v Commissioner of Taxation (2006) 62 ATR 165 referred to Commissioner of Taxation v Queensland Trading and Holding Company Limited [2006] FCAFC 112 discussed Hunter v Leahy and Others [1999] FCA 1075 ; (1999) 91 FCR 214 cited IEL FINANCE LIMITED, QUEENSLAND TRADING AND HOLDING COMPANY LIMITED AND SPASSKED PTY LIMITED v COMMISSIONER OF TAXATION NSD 539 OF 2004 NSD 543 OF 2004 NSD 540 OF 2004 NSD 94 OF 2005 CONTI J 29 SEPTEMBER 2006 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 539 OF 2004 BETWEEN: IEL FINANCE LIMITED Applicant AND: COMMISSIONER OF TAXATION Respondent JUDGE: CONTI J DATE OF ORDER: 29 SEPTEMBER 2006 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Paragraphs 5 to 16, 18, 21, 26 to 51, 60 to 62 and 65 to 67 of the applicant's amended statement of facts issues and contentions be struck out. 2. The applicant's appeal against the respondent's taxation objection decision so far as it relates to the assessment of the applicant's taxable income for the year ended 30 June 1993 be dismissed. 3. The applicant pay the respondent's cost of this motion and of the application to date. 4. The applicant be granted leave to file a further amended statement of facts, issues and contentions on or before 21 days from the date of this order. 5. The respondent have leave to file any reply to the applicant's further amended statement of facts, issues and contentions on or before 21 days from the date of service of the applicant's further amended statement of facts, issues and contentions. 6. The applicant be granted leave to file an application for leave to appeal and a notice of appeal from the judgment of Conti J dated 21 March 2006 and the foregoing orders on or before 20 October 2006. 7. The applicant's application for leave to appeal from the judgment of Conti J dated 21 March 2006 and the foregoing orders be heard concurrently with the applicant's appeal against such judgment and orders by a Full Court of this Court. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules . IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 540 OF 2004 BETWEEN: QUEENSLAND TRADING AND HOLDING COMPANY LIMITED Applicant AND: COMMISSIONER OF TAXATION Respondent JUDGE: CONTI J DATE OF ORDER: 29 SEPTEMBER 2006 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Paragraphs 4 to 18, 20, 23, 30 to 59, 63 to 67 and 69 to 72 of the applicant's amended statement of facts, issues and contentions be struck out. 2. The applicant's appeal against the respondent's taxation objection decision so far as it relates to the assessment of the applicant's taxable income for the year ended 30 June 1991 be dismissed. 3. The applicant pay the respondent's costs of this motion and of the application to date. 4. The applicant be granted leave to file a further amended statement of facts, issues and contentions on or before 21 days from the date of this order. 5. The respondent have leave to file any reply to the applicant's further amended statement of facts issues and contentions on or before 21 days from the date of service of the applicant's further amended statement of facts, issues and contentions. 6. The applicant be granted leave to file an application for leave to appeal and a notice of appeal from the judgment of Conti J dated 21 March 2006 and the foregoing orders on or before 20 October 2006. 7. The applicant's application for leave to appeal from the judgment of Conti J dated 21 March 2006 and the foregoing orders be heard concurrently with the applicant's appeal against such judgment and orders by a Full Court of this Court. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules . IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 543 OF 2004 BETWEEN: IEL FINANCE LIMITED Applicant AND: COMMISSIONER OF TAXATION Respondent JUDGE: CONTI J DATE OF ORDER: 29 SEPTEMBER 2006 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Paragraphs 5 to 16, 18, 21, 26 to 51, 59 to 51 and 65 to 68 of the applicant's amended statement of facts, issues and contentions be struck out. 2. The applicant's appeal against the respondent's taxation objection decision so far as it relates to the assessment of the applicant's taxable income for the year ended 30 June 1996 be dismissed. 3. The applicant pay the respondent's costs of this motion and of the application to date. 4. The applicant be granted leave to file a further amended statement of facts, issues and contentions on or before 21 days from the date of this order. 5. The respondent have leave to file any reply to the applicant's further amended statement of facts, issues and contentions on or before 21 days from the date of service of the applicant's further amended statement of facts, issues and contentions. 6. The applicant be granted leave to file an application for leave to appeal and a notice of appeal from the judgment of Conti J dated 21 March 2006 and the foregoing orders on or before 20 October 2006. 7. The applicant's application for leave to appeal from the judgment of Conti J dated 21 March 2006 and the foregoing orders be heard concurrently with the applicant's appeal against such judgment and orders by a Full Court of this Court. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules . IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 94 OF 2005 BETWEEN: SPASSKED PTY LIMITED Applicant AND: COMMISSIONER OF TAXATION Respondent JUDGE: CONTI J DATE OF ORDER: 29 SEPTEMBER 2006 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Paragraphs 5 to 16, 18, 24 to 49, 57 to 59 and 62 to 64 of the applicant's amended statement of facts, issues and contentions be struck out. 2. The applicant's appeal against the respondent's taxation objection decision so far as it relates to the assessment of the applicant's taxable income for the year ended 30 June 1994 be dismissed. 3. The applicant pay the respondent's costs of this motion and of the application to date. 4. The applicant be granted leave to file a further amended statement of facts, issues and contentions on or before 21 days from the date of this order. 5. The respondent have leave to file any reply to the applicant's further amended statement of facts, issues and contentions on or before 21 days from the date of service of the applicant's further amended statement of facts, issues and contentions. 6. The applicant be granted leave to file an application for leave to appeal and a notice of appeal from the judgment of Conti J dated 21 March 2006 and the foregoing orders on or before 20 October 2006. 7. The applicant's application for leave to appeal from the judgment of Conti J dated 21 March 2006 and the foregoing orders be heard concurrently with the applicant's appeal against such judgment and orders by a Full Court of this Court. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules . IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 539 OF 2004 NSD 543 OF 2004 NSD 540 OF 2004 NSD 94 OF 2005 BETWEEN: IEL FINANCE LIMITED, QUEENSLAND TRADING AND HOLDING COMPANY LIMITED AND SPASSKED PTY LIMITED Applicants AND: COMMISSIONER OF TAXATION Respondent JUDGE : CONTI J DATE: 29 SEPTEMBER 2006 PLACE: SYDNEY REASONS FOR ORDERS On 21 March 2006 I directed the parties to the four subject proceedings ( IEL Finance Limited and Others v Commissioner of Taxation (2006) 62 ATR 165) to provide draft declarations and/or orders giving effect to the reasons for judgment delivered on that prior occasion. The first of those four proceedings, being numbered NSD 539 of 2004 and involving IEL Finance Limited as applicant, was treated by the parties as the precedent vehicle, for the most part, for implementation of orders to be made in the remaining three proceedings. The abbreviations adopted in these reasons reflect those used in the preceding principal reasons for judgment of 21 March 2006. There appears to be no controversy between the relevant parties regarding the content of the first order to be made in all four proceedings brought of course at the instance of the applicable applicant. Nor is there controversy as to consequential orders numbered 4 to 7 concerning grant of leave to the applicant in all four proceedings to file the amended pleading and to the Commissioner filing a subsequent reply. Where controversy lies is in relation to the nature and scope of the order required to give effective operation as to the implications of the strike-out of the foregoing paragraphs of amended statement of facts, issues and contentions (the proposed order 2) and to the order to be made as to costs of this motion and of the application for summary judgment (the proposed order 3). As to what version of Order 3 as to costs should be made, the Commissioner pointed out that IEF had made no submissions at the hearing in relation to the Commissioner's claim that '[t]he applicant pay the respondent's (ie Commissioners) costs of this motion and of the application', nor led evidence concerning the need to apportion costs incurred by the respondent between issues of additional and primary tax'. The Commissioner referred to [130] of my reasons for judgment where I held that the '[t] he Commissioner must have the costs of the proceedings to date, inclusive of the costs related to the present summary application' , and submitted that the text of the orders now sought should 'reflect that finding precisely' . I think that the Commissioner's submission is correct and reflects the substance of the outcome and the implications of my principal findings made earlier on 21 March 2006 in the IEL Finance principal proceedings ( ante ). Accordingly I have made the orders in each proceedings essentially as proposed by the Commissioner. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti. Associate: Dated: 29 September 2006 Counsel for the Applicant: Mr A H Slater QC & P M Fraser Solicitor for the Applicant: Blake Dawson Waldron Counsel for the Respondent: Mr G J Davies QC & Mr S H Steward Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 29 August 2006 Date of Judgment: 29 September 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1293.html


case_outcome: discussed

case_text: paragraph 17 of the reasons for judgment, delete the quotation mark that appears after the words 'primary tax'. I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti. Associate: Dated: 6 October 2006 FEDERAL COURT OF AUSTRALIA IEL Finance Limited v Commissioner of Taxation [2006] FCA 1293 PRACTICE AND PROCEDURE summary judgment entered upon strike-out of initiating processes comprising statements of facts, issues and contentions pleaded by three corporately related taxpayers in complex revenue disputes partial dismissal of taxpayers' appeals primary ground of dismissal being abuse of process secondary ground of dismissal Anshun estoppel appropriate form of orders as to dismissal of parts of initiating processes of each applicant order to be made as to costs Taxation Administration Act 1953 (Cth) ss 14ZZO , 14ZZP , 14ZR (1), 14ZU , 14ZW , and 14ZZ Federal Court of Australia Act 1976 (Cth) ss 22 and 23 Federal Court Rules O 20 subrule 2(1) IEL Finance Limited and Others v Commissioner of Taxation (2006) 62 ATR 165 referred to Commissioner of Taxation v Queensland Trading and Holding Company Limited [2006] FCAFC 112 discussed Hunter v Leahy and Others [1999] FCA 1075 ; (1999) 91 FCR 214 cited IEL FINANCE LIMITED, QUEENSLAND TRADING AND HOLDING COMPANY LIMITED AND SPASSKED PTY LIMITED v COMMISSIONER OF TAXATION NSD 539 OF 2004 NSD 543 OF 2004 NSD 540 OF 2004 NSD 94 OF 2005 CONTI J 29 SEPTEMBER 2006 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 539 OF 2004 BETWEEN: IEL FINANCE LIMITED Applicant AND: COMMISSIONER OF TAXATION Respondent JUDGE: CONTI J DATE OF ORDER: 29 SEPTEMBER 2006 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Paragraphs 5 to 16, 18, 21, 26 to 51, 60 to 62 and 65 to 67 of the applicant's amended statement of facts issues and contentions be struck out. 2. The applicant's appeal against the respondent's taxation objection decision so far as it relates to the assessment of the applicant's taxable income for the year ended 30 June 1993 be dismissed. 3. The applicant pay the respondent's cost of this motion and of the application to date. 4. The applicant be granted leave to file a further amended statement of facts, issues and contentions on or before 21 days from the date of this order. 5. The respondent have leave to file any reply to the applicant's further amended statement of facts, issues and contentions on or before 21 days from the date of service of the applicant's further amended statement of facts, issues and contentions. 6. The applicant be granted leave to file an application for leave to appeal and a notice of appeal from the judgment of Conti J dated 21 March 2006 and the foregoing orders on or before 20 October 2006. 7. The applicant's application for leave to appeal from the judgment of Conti J dated 21 March 2006 and the foregoing orders be heard concurrently with the applicant's appeal against such judgment and orders by a Full Court of this Court. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules . IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 540 OF 2004 BETWEEN: QUEENSLAND TRADING AND HOLDING COMPANY LIMITED Applicant AND: COMMISSIONER OF TAXATION Respondent JUDGE: CONTI J DATE OF ORDER: 29 SEPTEMBER 2006 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Paragraphs 4 to 18, 20, 23, 30 to 59, 63 to 67 and 69 to 72 of the applicant's amended statement of facts, issues and contentions be struck out. 2. The applicant's appeal against the respondent's taxation objection decision so far as it relates to the assessment of the applicant's taxable income for the year ended 30 June 1991 be dismissed. 3. The applicant pay the respondent's costs of this motion and of the application to date. 4. The applicant be granted leave to file a further amended statement of facts, issues and contentions on or before 21 days from the date of this order. 5. The respondent have leave to file any reply to the applicant's further amended statement of facts issues and contentions on or before 21 days from the date of service of the applicant's further amended statement of facts, issues and contentions. 6. The applicant be granted leave to file an application for leave to appeal and a notice of appeal from the judgment of Conti J dated 21 March 2006 and the foregoing orders on or before 20 October 2006. 7. The applicant's application for leave to appeal from the judgment of Conti J dated 21 March 2006 and the foregoing orders be heard concurrently with the applicant's appeal against such judgment and orders by a Full Court of this Court. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules . IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 543 OF 2004 BETWEEN: IEL FINANCE LIMITED Applicant AND: COMMISSIONER OF TAXATION Respondent JUDGE: CONTI J DATE OF ORDER: 29 SEPTEMBER 2006 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Paragraphs 5 to 16, 18, 21, 26 to 51, 59 to 51 and 65 to 68 of the applicant's amended statement of facts, issues and contentions be struck out. 2. The applicant's appeal against the respondent's taxation objection decision so far as it relates to the assessment of the applicant's taxable income for the year ended 30 June 1996 be dismissed. 3. The applicant pay the respondent's costs of this motion and of the application to date. 4. The applicant be granted leave to file a further amended statement of facts, issues and contentions on or before 21 days from the date of this order. 5. The respondent have leave to file any reply to the applicant's further amended statement of facts, issues and contentions on or before 21 days from the date of service of the applicant's further amended statement of facts, issues and contentions. 6. The applicant be granted leave to file an application for leave to appeal and a notice of appeal from the judgment of Conti J dated 21 March 2006 and the foregoing orders on or before 20 October 2006. 7. The applicant's application for leave to appeal from the judgment of Conti J dated 21 March 2006 and the foregoing orders be heard concurrently with the applicant's appeal against such judgment and orders by a Full Court of this Court. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules . IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 94 OF 2005 BETWEEN: SPASSKED PTY LIMITED Applicant AND: COMMISSIONER OF TAXATION Respondent JUDGE: CONTI J DATE OF ORDER: 29 SEPTEMBER 2006 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Paragraphs 5 to 16, 18, 24 to 49, 57 to 59 and 62 to 64 of the applicant's amended statement of facts, issues and contentions be struck out. 2. The applicant's appeal against the respondent's taxation objection decision so far as it relates to the assessment of the applicant's taxable income for the year ended 30 June 1994 be dismissed. 3. The applicant pay the respondent's costs of this motion and of the application to date. 4. The applicant be granted leave to file a further amended statement of facts, issues and contentions on or before 21 days from the date of this order. 5. The respondent have leave to file any reply to the applicant's further amended statement of facts, issues and contentions on or before 21 days from the date of service of the applicant's further amended statement of facts, issues and contentions. 6. The applicant be granted leave to file an application for leave to appeal and a notice of appeal from the judgment of Conti J dated 21 March 2006 and the foregoing orders on or before 20 October 2006. 7. The applicant's application for leave to appeal from the judgment of Conti J dated 21 March 2006 and the foregoing orders be heard concurrently with the applicant's appeal against such judgment and orders by a Full Court of this Court. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules . IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 539 OF 2004 NSD 543 OF 2004 NSD 540 OF 2004 NSD 94 OF 2005 BETWEEN: IEL FINANCE LIMITED, QUEENSLAND TRADING AND HOLDING COMPANY LIMITED AND SPASSKED PTY LIMITED Applicants AND: COMMISSIONER OF TAXATION Respondent JUDGE : CONTI J DATE: 29 SEPTEMBER 2006 PLACE: SYDNEY REASONS FOR ORDERS On 21 March 2006 I directed the parties to the four subject proceedings ( IEL Finance Limited and Others v Commissioner of Taxation (2006) 62 ATR 165) to provide draft declarations and/or orders giving effect to the reasons for judgment delivered on that prior occasion. The first of those four proceedings, being numbered NSD 539 of 2004 and involving IEL Finance Limited as applicant, was treated by the parties as the precedent vehicle, for the most part, for implementation of orders to be made in the remaining three proceedings. The abbreviations adopted in these reasons reflect those used in the preceding principal reasons for judgment of 21 March 2006. There appears to be no controversy between the relevant parties regarding the content of the first order to be made in all four proceedings brought of course at the instance of the applicable applicant. Nor is there controversy as to consequential orders numbered 4 to 7 concerning grant of leave to the applicant in all four proceedings to file the amended pleading and to the Commissioner filing a subsequent reply. Where controversy lies is in relation to the nature and scope of the order required to give effective operation as to the implications of the strike-out of the foregoing paragraphs of amended statement of facts, issues and contentions (the proposed order 2) and to the order to be made as to costs of this motion and of the application for summary judgment (the proposed order 3). IEF contended the following in relation to the operation or implications otherwise of s 14ZZP concerning what is described therein as 'an appeal against an appealable objection decision under section 14ZZ' : (i) the text of s 14ZZP refers to the making of orders in relation to the decision, and so much usually involves the making of orders which either allow an appeal, disallow an appeal, or allow an appeal in part, often with a direction to the Commissioner as to how to assess or otherwise deal with the matter; in each of those cases however, the order disposes of the whole of the objection decision and not just part of it; and (ii) the section is expressed to operate where the appeal against the objection decision has been heard, and by necessary implication has been determined; it is only at that time that an order dealing with the whole of the objection decision may be made. In short, the contention of IEF seemingly boiled down to the proposition that since there can be only one objection decision, or more precisely in the dicta of the Full Court in Commissioner of Taxation v Queensland Trading and Holding Company Limited [2006] FCAFC 112 (Ryan, Heerey and Edmonds JJ) extracted in [10] below, 'only one decision in respect of each objection', there can only be an order of a court of competent jurisdiction made in relation to the whole of that objection decision. Absent any statutory inhibition to the contrary, more than one species or measure of relief may be available as a consequence of the exercise of what may be described as a statutory decision. The appellate proceedings in the Full Federal Court in relation to the subject litigious context have not yet of course been heard or determined. IEF submitted that the effect of the Court's ruling in relation to the Commissioner's interlocutory (strike-out) motion (the orders sought thereby being summarised in [3] of my reasons for judgment of 21 March 2006) is that IEF is estopped from challenging its liability to the primary tax controversially assessed by the Commissioner, whether by reason of the doctrine of abuse of process or of estoppel. That ruling of the Court in IEF's submission is procedural in nature, the same not having constituted the concluded determination of the Commissioner's objection decision(s) in relation to each corporate taxpayer (ie each applicant) by reason of the taxpayers' pursuit of the subsisting appeals. That being so, IEF submitted further that the respective decisions of the Commissioner in relation to the objection to each assessment, the same not being divisible or susceptible to partial setting aside in the manner contended by the Commissioner, the appeals of each of the applicants (inclusive of course of IEF) cannot be partly dismissed. I interpolate to observe, for what it may presently matter, that the primary basis for my upholding the Commissioner's application for summary judgment was that of abuse of process, albeit that I found further in favour of the Commissioner on the basis of estoppel. Support for the propositions so advanced by IEF was said to be found in the judicial reasoning of the Full Federal Court in Commissioner of Taxation v Queensland Trading and Holding Company Limited , where in the joint judgment of Ryan, Heerey and Edmonds JJ, the following appears at [20]: 'As there can only be one objection by each of the taxpayers in respect of the assessment of primary tax and additional tax notified by the notice issued to each of them, there can in our view be only one decision in respect of each objection, and that is the objection referred to in s 14ZY of the [Administration Act] . The decision can accommodate both the disallowance of the objection or an allowance of it, in whole or in part, and in the latter case irrespective of whether it values reduction of the primary tax assessed, further remission of the additional tax assessed or both.' The emphasis appearing in the third and fourth lines above was that of IEF. The issue here arising may be framed as to whether the order consequential upon a decision of the Commissioner may operate in the present context to the extent or of the scope framed by the Commissioner in [3] above, or whether expression may only be given to my findings on 21 March 2006 in the way framed by the applicants in [3] above, being a way for which incidentally no precedent was cited, doubtless because of the unusual circumstances of the present proceedings involving not just more than a single year of income but three discrete taxpayer applicants. Given the significance of the indivisibility of an objection decision for which it contended, IEF submitted further that the appropriate course for adoption, in order to give consequential effect, should be for the Court to make an order or orders which would reflect the estoppel ruling, but which would leave or postpone the formulation of an ultimate order or orders in relation to the respective objection decisions until the pending appeal has been heard and determined. That outcome was submitted to be achievable by the adoption of what IEF proposed in terms of order 2 by way of an injunction alone. As to order 3 proposed by the Commissioner, which relates of course to the costs of the proceedings at first instance, it was explained by IEF that it has adopted for the purpose of its approach the wording in the final line of my principal reasons, being 'The Commissioner must have the costs of the proceedings to date, inclusive of the costs related to the present summary application' . IEF submitted that since the dispute between the parties regarding so-called penalty tax remains on foot, and that much of the evidence in relation to that issue is common to the dispute already litigated at first instance regarding primary tax, it was IEF's understanding that the Court was intending to refer thereby to so much only of the costs of the proceedings to date as related to the determination of the applicants' taxable income for the relevant years of income, that is to say, those years of income the subject of the so-called estoppel point issue. The practical difficulty in that regard would be the resolution of what work has been exclusively referrable to the 'penalty tax' issue remaining for resolution, as distinct from what work was referrable to the estoppel issue, to the extent those distinctions were susceptible to being drawn for the particular purpose.


case_text: paragraph 17 of the reasons for judgment, delete the quotation mark that appears after the words 'primary tax'. I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti. Associate: Dated: 6 October 2006 FEDERAL COURT OF AUSTRALIA IEL Finance Limited v Commissioner of Taxation [2006] FCA 1293 PRACTICE AND PROCEDURE summary judgment entered upon strike-out of initiating processes comprising statements of facts, issues and contentions pleaded by three corporately related taxpayers in complex revenue disputes partial dismissal of taxpayers' appeals primary ground of dismissal being abuse of process secondary ground of dismissal Anshun estoppel appropriate form of orders as to dismissal of parts of initiating processes of each applicant order to be made as to costs Taxation Administration Act 1953 (Cth) ss 14ZZO , 14ZZP , 14ZR (1), 14ZU , 14ZW , and 14ZZ Federal Court of Australia Act 1976 (Cth) ss 22 and 23 Federal Court Rules O 20 subrule 2(1) IEL Finance Limited and Others v Commissioner of Taxation (2006) 62 ATR 165 referred to Commissioner of Taxation v Queensland Trading and Holding Company Limited [2006] FCAFC 112 discussed Hunter v Leahy and Others [1999] FCA 1075 ; (1999) 91 FCR 214 cited IEL FINANCE LIMITED, QUEENSLAND TRADING AND HOLDING COMPANY LIMITED AND SPASSKED PTY LIMITED v COMMISSIONER OF TAXATION NSD 539 OF 2004 NSD 543 OF 2004 NSD 540 OF 2004 NSD 94 OF 2005 CONTI J 29 SEPTEMBER 2006 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 539 OF 2004 BETWEEN: IEL FINANCE LIMITED Applicant AND: COMMISSIONER OF TAXATION Respondent JUDGE: CONTI J DATE OF ORDER: 29 SEPTEMBER 2006 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Paragraphs 5 to 16, 18, 21, 26 to 51, 60 to 62 and 65 to 67 of the applicant's amended statement of facts issues and contentions be struck out. 2. The applicant's appeal against the respondent's taxation objection decision so far as it relates to the assessment of the applicant's taxable income for the year ended 30 June 1993 be dismissed. 3. The applicant pay the respondent's cost of this motion and of the application to date. 4. The applicant be granted leave to file a further amended statement of facts, issues and contentions on or before 21 days from the date of this order. 5. The respondent have leave to file any reply to the applicant's further amended statement of facts, issues and contentions on or before 21 days from the date of service of the applicant's further amended statement of facts, issues and contentions. 6. The applicant be granted leave to file an application for leave to appeal and a notice of appeal from the judgment of Conti J dated 21 March 2006 and the foregoing orders on or before 20 October 2006. 7. The applicant's application for leave to appeal from the judgment of Conti J dated 21 March 2006 and the foregoing orders be heard concurrently with the applicant's appeal against such judgment and orders by a Full Court of this Court. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules . IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 540 OF 2004 BETWEEN: QUEENSLAND TRADING AND HOLDING COMPANY LIMITED Applicant AND: COMMISSIONER OF TAXATION Respondent JUDGE: CONTI J DATE OF ORDER: 29 SEPTEMBER 2006 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Paragraphs 4 to 18, 20, 23, 30 to 59, 63 to 67 and 69 to 72 of the applicant's amended statement of facts, issues and contentions be struck out. 2. The applicant's appeal against the respondent's taxation objection decision so far as it relates to the assessment of the applicant's taxable income for the year ended 30 June 1991 be dismissed. 3. The applicant pay the respondent's costs of this motion and of the application to date. 4. The applicant be granted leave to file a further amended statement of facts, issues and contentions on or before 21 days from the date of this order. 5. The respondent have leave to file any reply to the applicant's further amended statement of facts issues and contentions on or before 21 days from the date of service of the applicant's further amended statement of facts, issues and contentions. 6. The applicant be granted leave to file an application for leave to appeal and a notice of appeal from the judgment of Conti J dated 21 March 2006 and the foregoing orders on or before 20 October 2006. 7. The applicant's application for leave to appeal from the judgment of Conti J dated 21 March 2006 and the foregoing orders be heard concurrently with the applicant's appeal against such judgment and orders by a Full Court of this Court. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules . IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 543 OF 2004 BETWEEN: IEL FINANCE LIMITED Applicant AND: COMMISSIONER OF TAXATION Respondent JUDGE: CONTI J DATE OF ORDER: 29 SEPTEMBER 2006 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Paragraphs 5 to 16, 18, 21, 26 to 51, 59 to 51 and 65 to 68 of the applicant's amended statement of facts, issues and contentions be struck out. 2. The applicant's appeal against the respondent's taxation objection decision so far as it relates to the assessment of the applicant's taxable income for the year ended 30 June 1996 be dismissed. 3. The applicant pay the respondent's costs of this motion and of the application to date. 4. The applicant be granted leave to file a further amended statement of facts, issues and contentions on or before 21 days from the date of this order. 5. The respondent have leave to file any reply to the applicant's further amended statement of facts, issues and contentions on or before 21 days from the date of service of the applicant's further amended statement of facts, issues and contentions. 6. The applicant be granted leave to file an application for leave to appeal and a notice of appeal from the judgment of Conti J dated 21 March 2006 and the foregoing orders on or before 20 October 2006. 7. The applicant's application for leave to appeal from the judgment of Conti J dated 21 March 2006 and the foregoing orders be heard concurrently with the applicant's appeal against such judgment and orders by a Full Court of this Court. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules . IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 94 OF 2005 BETWEEN: SPASSKED PTY LIMITED Applicant AND: COMMISSIONER OF TAXATION Respondent JUDGE: CONTI J DATE OF ORDER: 29 SEPTEMBER 2006 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Paragraphs 5 to 16, 18, 24 to 49, 57 to 59 and 62 to 64 of the applicant's amended statement of facts, issues and contentions be struck out. 2. The applicant's appeal against the respondent's taxation objection decision so far as it relates to the assessment of the applicant's taxable income for the year ended 30 June 1994 be dismissed. 3. The applicant pay the respondent's costs of this motion and of the application to date. 4. The applicant be granted leave to file a further amended statement of facts, issues and contentions on or before 21 days from the date of this order. 5. The respondent have leave to file any reply to the applicant's further amended statement of facts, issues and contentions on or before 21 days from the date of service of the applicant's further amended statement of facts, issues and contentions. 6. The applicant be granted leave to file an application for leave to appeal and a notice of appeal from the judgment of Conti J dated 21 March 2006 and the foregoing orders on or before 20 October 2006. 7. The applicant's application for leave to appeal from the judgment of Conti J dated 21 March 2006 and the foregoing orders be heard concurrently with the applicant's appeal against such judgment and orders by a Full Court of this Court. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules . IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 539 OF 2004 NSD 543 OF 2004 NSD 540 OF 2004 NSD 94 OF 2005 BETWEEN: IEL FINANCE LIMITED, QUEENSLAND TRADING AND HOLDING COMPANY LIMITED AND SPASSKED PTY LIMITED Applicants AND: COMMISSIONER OF TAXATION Respondent JUDGE : CONTI J DATE: 29 SEPTEMBER 2006 PLACE: SYDNEY REASONS FOR ORDERS On 21 March 2006 I directed the parties to the four subject proceedings ( IEL Finance Limited and Others v Commissioner of Taxation (2006) 62 ATR 165) to provide draft declarations and/or orders giving effect to the reasons for judgment delivered on that prior occasion. The first of those four proceedings, being numbered NSD 539 of 2004 and involving IEL Finance Limited as applicant, was treated by the parties as the precedent vehicle, for the most part, for implementation of orders to be made in the remaining three proceedings. The abbreviations adopted in these reasons reflect those used in the preceding principal reasons for judgment of 21 March 2006. There appears to be no controversy between the relevant parties regarding the content of the first order to be made in all four proceedings brought of course at the instance of the applicable applicant. Nor is there controversy as to consequential orders numbered 4 to 7 concerning grant of leave to the applicant in all four proceedings to file the amended pleading and to the Commissioner filing a subsequent reply. Where controversy lies is in relation to the nature and scope of the order required to give effective operation as to the implications of the strike-out of the foregoing paragraphs of amended statement of facts, issues and contentions (the proposed order 2) and to the order to be made as to costs of this motion and of the application for summary judgment (the proposed order 3). The Commissioner submitted in response that the thrust of IEF's contentions I have outlined above tend to confuse the subject matter of the applicants' respective applications in the principal proceedings with the subject matter of the Commissioner's amended notice of motion filed on 25 July 2005, being summary relief for abuse of process. The Commissioner drew attention however to Order 20 rule 2, subrule (1) whereof reads as follows: '2(1) Where in any proceeding it appears to the Court that in relation to the proceeding generally or in relation to any claim for relief in the proceedings (a) no reasonable cause of action is disclosed; ... (c) the proceeding is an abuse of the process of the Court, the Court may order that the proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceedings. ... .' Upon either footing, and by reason moreover of ss 22 and 23 of the Federal Court of Australia Act 1976 (Cth) ('the Federal Court Act'), the Commissioner asserted justification for an order in the form the subject of the Commissioner's proposed Order 2 (see again [3] above). I was referred in that regard to the decision of Hunter v Leahy and Others [1999] FCA 1075 ; (1999) 91 FCR 214, where in relation to the operation of s 23 of the Federal Court Act, French J observed at [14] and [15]: '14. ...It is accepted that courts of law and equity have general powers now accepted as an established part of their armoury to prevent the abuse or frustration of their processes in relation to matters coming within their jurisdictions... 15. Although the term "inherent jurisdiction" was used to describe such a power in courts of general jurisdiction, it is better described in a statutory court as an implied power... .' The Commissioner emphasised that an order was not sought that part of the objection decision be affirmed, but rather an order that the proceedings, so far as they relate to the objection decision in respect of primary tax, be dismissed, and that whether the objection decision is to be affirmed or set aside in part is a matter that may be dealt with when the remaining issue the subject of the proceedings, which relate to the objection decisions in respect of additional tax, have been determined. In my opinion and in the light in particular of the circumstance that the proceedings to date have been dominated by the issue as to liability to primary tax, the Commissioner's case in relation to the framework of the proposed Order 2 is to be preferred. The Federal Court's authority to make an order in relation to proceedings, so far as the same may constitute an abuse of process, does not originate from the Administration Act, but under and pursuant to the inherent powers of the Court and of the Federal Court Rules , in conformity with which the orders sought by the Commissioner have been presented. Moreover the power of the Court to make orders for the dismissal of proceedings, in whole or in part, originates under Order 20 rule 2, the concluding words whereof being reflected implicitly in the form of Order 2 proposed by the Commissioner in [3] above. That power resides also in the power of the Federal Court conferred by s 23 of the Federal Court Act, as the dictum of French J in Hunter makes clear. For ease of reference, section 23 reads as follows: 'The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate.' It is upon that footing, which I pointed out in [126] of my reasons for judgment given on 21 March 2006 in the strike-out proceedings ( supra ), being '[m]y primary juridical basis for granting or upholding the Commissioner's application for summary judgment is that of abuse of process' , I would make Order 2 as proposed by the Commissioner.


case_text: Court is entitled to decline to grant relief to a party in an application under the Act, even if an error has been identified: see Re Refugee Review Tribunal; Ex Parte Aala (2000) 204 CLR 82. As the decision of Ms Shipway to extend the time in which Ms Bitton could lodge her ultimately unsuccessful objection did not affect any substantive right of Mr Young, it appears to be futile to grant any remedy to Mr Young. It is unnecessary to form any conclusive view on this issue because of the Court's view about the lack of utility in extending the time for Mr Young to commence this proceeding. Decision on extension The Court refuses to extend the time within which Mr Young's application may be made to it. I do not consider that it would be proper in all the circumstances for the Court to exercise its discretion in favour of Mr Young. Mr Young has shown no acceptable explanation for the delay in commencing the proceeding. The reality is that the extension of time granted by Ms Shipway had no continuing relevance for Mr Young until the Tribunal required him, in October 2008, to provide evidence concerning care arrangements in 2007. More importantly, the decision to extend time for Ms Bitton to object did not prejudice Mr Young because her objection was rejected. Ms Bitton had an entitlement to seek a merits review in the Tribunal and would have done so in response to an adverse decision of the Child Support Registrar whether made on 3 August 2007 or at some later date. An obligation cast on Mr Young by the Tribunal to provide evidence dealing with an extended period of time is not a sufficient basis upon which to revisit an administrative decision which otherwise has no practical consequences. It does not matter that there is little prejudice to the respondents. A quashing of the extension of time decision made on 3 August 2007 cannot effect the reality that Ms Bitton's objection was dismissed and that she has an entitlement to a review in the Tribunal. It is inappropriate to delay that review any longer.


case_text: Senior Counsel for Nylex submitted that the test which I should apply in determining the present application is that which was discussed and explained in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199. Senior Counsel for Gardena did not disagree with this submission. 17 In Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd 208 CLR 199 , a majority of the High Court held that, where an interlocutory injunction is sought (inter alia) in respect of private rights, it is necessary to identify the legal or equitable rights which are to be determined at the trial and in respect of which the final relief is sought. Their Honours who comprised the majority made clear that the final relief sought need not be injunctive in nature. See [8] to [21] (pp 216 220) (per Gleeson CJ); [59] to [61] (pp 231 232) (per Gaudron J); and [86] to [92] (pp 239 242); [98] to [100] (pp 244 246); and [105] (p 248) (per Gummow and Hayne JJ). At [10] (p 216), Gleeson CJ also specifically cited with approval Spry, The Principles of Equitable Remedies , 5 th edn, 1997 (pp 446 456).


case_text: In his Reasons for Judgment, at [13] (p 218), Gleeson CJ expressly approved the following passage from the Reasons for Judgment of Mason ACJ in Castlemaine Tooheys Ltd v South Australia [1986] HCA 58 ; (1986) 161 CLR 148 at 153: In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction. 19 At [11] to [14] above I have summarised Gardena's claims for final relief. At [15] above I have described the claim for interlocutory relief with which these Reasons deal. 20 Gardena's interlocutory application is founded solely upon Gardena's contractual rights embodied in the Distribution Agreement. Some evidence was led concerning the misrepresentation case but no specific interlocutory relief was sought in respect of that case. Thus, the interlocutory injunction is sought in aid of Gardena's contractual rights. These rights are legal in character. 26 In light of the concessions which I have noted at [23] above, Nylex's submissions in the application before me were directed to the remaining questions identified by Mason ACJ in Castlemaine Tooheys Ltd v South Australia [1986] HCA 58 ; 161 CLR 148 , namely, whether Gardena had shown that: (a) it will suffer irreparable injury for which damages will not be adequate compensation unless an injunction is granted; and (b) the balance of convenience favoured the granting of an injunction. 27 The first of these matters involves an assessment by the Court as to whether the claimant would, in all material respects, be in as good a position if he were confined to his damages remedy, as he would be in if an injunction were granted (see the discussion of this aspect in Spry, The Principles of Equitable Remedies , 7 th edn, 2007 at pp 383 389; at pp 397 399; and at pp 457 462). 28 The second of these matters requires the Court to exercise a discretion.


case_text: Nylex faintly argued that each of the Distribution Agreement and the Licence Agreement contained an implied term to the effect that neither party would terminate that agreement part way through the Australian summer season (ie after 1 October in any given year and before 31 March in the next year). This argument was not developed by Nylex. It was not at all clear to me how such an argument would ultimately be put. I think that Nylex will have considerable difficulty persuading the trial judge of the merits of such an argument (if it is seriously pressed at the trial). The postulated implied term is not likely to satisfy all the elements of the test approved by the High Court in Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24 ; (1982) 149 CLR 337 at 345 347 (per Mason J) and at 403 404 (per Brennan J). At the very least, it seems to me that the postulated implied term would contradict the terms of Clause 11.1 of the Distribution Agreement and the terms of Clause 7.2 of the Licence Agreement which clauses are, of course, express terms of the relevant contracts. I do not need to decide this point for the purposes of the application with which these Reasons deal and I refrain from doing so. 44 By letter dated 15 November 2007 sent by Nylex to Gardena Germany, Mr Peter George, who is the Executive Chairman of Nylex, acknowledged receipt of both Notices of Termination. In that letter, he also said: I wish you well with your integration projects and look forward to our continuing distribution of GARDENA products up to the end of next year. 45 The terms of that letter were such as to lead the recipient of it to believe that the terminations effected by the Notices of Termination were accepted by Nylex and that Nylex would approach the last year of its distribution arrangements with Gardena (viz 2008) in good faith, with goodwill and in accordance with its contractual obligations under the Distribution Agreement.


case_text: Because the expiry of the Distribution Agreement is only weeks away and because the final hearing of these proceedings will not be listed before 31 December 2008, the injunction sought by Gardena, although interlocutory in form, will have the effect of finally determining Gardena's claim for permanent injunctive relief in respect of the breach of contract constituted by Nylex's sale of competing products. For this reason, I propose to approach Gardena's claim for interlocutory relief by evaluating the strength of its claims for final relief based on that breach of contract. I do so for the purpose of ascertaining where the balance of convenience lies. I have in mind and intend to apply the statement of principle made by McLelland J in Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 at 536A D. 22 The breach of contract in respect of which a prima facie case (or serious question) is required to be demonstrated is that breach which is constituted by Nylex's conduct in marketing and selling in Australia and New Zealand non-Gardena sourced products in competition with Gardena products. 23 As I have already mentioned, Senior Counsel for Nylex conceded that there was a serious question to be tried or prima facie case in respect of that cause of action. In oral submissions he went further and conceded that Nylex had breached the Distribution Agreement by distributing and selling Nylex branded garden and domestic irrigation products in Australia and New Zealand. That conduct had been undertaken deliberately. Nylex appreciated that it was breaching the Distribution Agreement when it engaged in the conduct about which complaint is made and plainly intended to do so.


case_text: In Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30 ; (1998) 195 CLR 1 at [65] and [66] (pp 41 43), Brennan CJ and McHugh, Gummow, Kirby and Hayne JJ, in a joint judgment, expressly adopted a passage from Spry, The Principles of Equitable Remedies (5 th edn, 1997, at pp 402 403), which may be summarised as follows: (a) In assessing the balance of convenience in an interlocutory injunction application, the interests of the public and third persons are relevant and have more or less weight according to other material circumstances; (b) Whether those interests tend to favour the grant or the refusal of an injunction in any given case depends upon the circumstances of that case; and (c) Hardship visited upon third persons or the public generally by the grant of an interlocutory injunction will rarely be decisive. 33 Nylex had been the distributor of Gardena products in Australia and New Zealand for some years before 1990. In 1990 formal agreements were entered into. 34 By a further formal agreement styled Sole Distribution Agreement ( the Distribution Agreement ) executed on or about 10 June 1999, Gardena and Nylex entered into the current distribution arrangement. At around about the same time, those companies also entered into a Licence Agreement ( the Licence Agreement ). The Licence Agreement was intended to operate in harmony with and for the same period of time as the Distribution Agreement.


case_text: Nylex cited Pearson v Arcadia Stores, Guyra, Limited (No 1) [1935] HCA 41 ; (1935) 53 CLR 571 at 583.7 and at 585 586. In that case, the High Court considered certain grounds that might be available to a party against whom an interlocutory injunction is sought as grounds for resisting the grant of such an injunction. In particular, the Court considered whether, as a matter of principle, the fact that the claimant for the interlocutory injunction is in breach of the relevant contract or some closely related contract is a matter which might go to the exercise of the Court's discretion to grant or refuse the injunction when the basis of the claim is in contract. In that context their Honours said (53 CLR at 585 586): It is not every failure by the covenantee to observe stipulations entered into as part of transactions in which the covenant was given that disentitles the covenantee to an injunction. If, by reason of the covenantee's own failure to perform interdependent covenants made by him, the covenant has ceased to bind the covenantor at law, there is no obligation to enforce by injunction. It is, of course, plain that in the present case the contract of service could not operate to create a collateral condition upon which the covenant depended. But there may be cases, both in covenant and in simple contract, where, although the obligation for the enforcement of which an injunction is sought continues to subsist at law, either because there has been an election to affirm, or because a right to treat the obligation as discharged did not arise, yet in equity an injunction would be refused because it would be inequitable to require the obligation to be carried out specifically by a person who has through the default of the other contracting party failed to obtain a material part of the consideration which induced him to enter into the obligation. But the present case is not of that description. 131 I do not think that it can seriously be suggested in the present case that, by breaching the Distribution Agreement, as alleged by Nylex, Gardena has denied to Nylex a material part of the consideration which induced Nylex to enter into the contract in the first place. 132 Taking Nylex's submissions at their highest, they do not warrant such a conclusion. 133 Nylex has had the benefit of the Distribution Agreement and the Licence Agreement over a long period of time. Even if everything which it asserted before me were true insofar as Gardena's recent conduct was concerned, in my view, Nylex continued to receive the benefit of those contracts throughout 2007 and 2008. 134 When one appreciates that the particular matters relied upon by Nylex have either not been proven at all or are substantially in contest, Nylex's submissions fall away.


case_text: Court is not satisfied that the Tribunal considered itself ' legally bound ' by such a consideration. Rather it referred to the fact that it was ' the starting point in considering exercise of discretion ', that is, that the Tribunal expressly acknowledged that despite such initial position, the discretion continues to exist. There is authority for the proposition that a payment made from consolidated revenue, unsupported by a valid appropriation, should be recovered: see Auckland Harbour Board v R [1924] AC 318 ; see also Sheppard J in Director General of Social Services v Hales [1983] FCA 81 ; (1983) 47 ALR 281 at 322-323 where his Honour said that a ' paramount consideration ' in such cases is the receipt by the person of monies unlawfully paid to them from consolidated revenue and that therefore it ought to, unless other circumstances exist, be repaid. Mere reference to such proposition as a starting point of consideration did not suggest that such proposition unduly fettered the Tribunal's decision.


case_text: respondent's interpretation arises from a misunderstanding of the relevant sections of the DFRDB Act. The same misunderstanding arose in the proceedings before the Full Federal Court in Chapman v Defence Force Retirement and Death Benefits Authority [2001] FCA 594 ; (2001) 108 FCR 537. In Chapman [2001] FCA 594 ; 108 FCR 537 the Full Court held that s 5A(1) excluded eligibility for membership of the DFRDB Act for any person commencing continuous full-time service after 1 October 1991. The majority (Whitlam and Gyles JJ) considered that s 5A(1)(b) applied to Major Chapman. They said at [21]: Section 5A(1) of the DFRDB Act makes the date 1 October 1991 a watershed. Eligibility, by operation of s 3 of the DFRDB Act, depends upon current continuous full-time service of certain kinds by members of the Defence Force, of whatever status. Section 5A(1) makes clear that, in general, any person actually joining the Defence Force in any capacity from 1 October 1991 will in no circumstances ever become eligible. Any person who was then a member of the Permanent Force will clearly continue to be eligible because of the full-time service obligation of that person... In this fashion, subs 5A(1) as a whole excludes eligibility for any person commencing continuous full-time service after 1 October 1991. Wilcox J considered the same submission which is made in the present proceedings by the respondent, namely that he could not ' become ' a member of the Defence Force after 1 October 1991 because he remained, at all material times, a member of the Defence Force. Wilcox J dismissed such submission, finding at [8] of his decision that the deeming provisions of the DFRDB Act contained in s 5(2), when taken into consideration with the definition of ' retirement ' contained in s 3 of that Act, had the consequence that ' regardless of the true position, the appellant was deemed to have retired from the Defence Force when he ceased in 1988 to be a member of the Australian Regular Army and transferred to the Australian Army Reserve '. His Honour considered that s 5A(1)(a) applied rather than s 5A(1)(b). Wilcox J concluded at [8]: On that basis, he once again became a member of the Defence Force when he commenced in 1996 to render continuous full-time service. It is also instructive to consider the judgment of Weinberg J at first instance in Defence Force Retirement and Death Benefits Authority v Chapman (2000) 63 ALD 351. The Full Federal Court's decision in Chapman [2001] FCA 594 ; 108 FCR 537 does not bring into question the reasoning of Weinberg J at first instance. Rather, it affirms it. The reasoning of Wilcox J in the Full Federal Court decision is consistent with Weinberg J's observations in relation to s 5A(1)(a) of the DFRDB Act and the majority decision in Chapman [2001] FCA 594 ; 108 FCR 537 does not challenge such reasoning as their Honours, considering s 5A(1)(b) was applicable to Major Chapman's circumstances, said ' it is unnecessary to consider other bases for ineligibility '. That is, the majority did not make any finding in relation to s 5A(1)(a). Therefore, Weinberg J's decision, and reasons, are still good law in respect of his interpretation of s 5A(1)(a). Chapman [2001] FCA 594 ; 108 FCR 537 was silent on the interpretation of s 5(3) of the DFRDB Act. None of their Honours considered the section. The majority did not need to as s 5 as a whole was irrelevant for the purposes of s 5A(1)(b). It can be assumed that Wilcox J considered that Weinberg J's findings in relation to that section were correct as he did not mention s 5(3) even though he relied on s 5A(1)(a). The fact that the majority of Chapman [2001] FCA 594 ; 108 FCR 537 decided that Major Chapman fell under s 5A(1)(b) rather than 5(1)(a) has no consequence for the present purposes. The respondent's election under s 132 is equally irrelevant. The Court is not bound by Chapman . However, the Court would need sound reasons to depart from considered, well-reasoned findings by members of this Court regarding the interpretation of provisions which are directly relevant to the current proceedings. The Court respectfully adopts the reasoning of the Full Court as well as Weinberg J in Chapman 63 ALD 351 which proceeds along similar lines. It follows from the above that the points of distinction relied upon by the respondent do not distinguish his circumstances from that considered in both Chapman decisions. The respondent's interpretation of s 5(3) Section 3(1) of the DFRDB Act provides: "service" means service as a member of the Defence Force.


case_text: is also instructive to consider the judgment of Weinberg J at first instance in Defence Force Retirement and Death Benefits Authority v Chapman (2000) 63 ALD 351. The Full Federal Court's decision in Chapman [2001] FCA 594 ; 108 FCR 537 does not bring into question the reasoning of Weinberg J at first instance. Rather, it affirms it. The reasoning of Wilcox J in the Full Federal Court decision is consistent with Weinberg J's observations in relation to s 5A(1)(a) of the DFRDB Act and the majority decision in Chapman [2001] FCA 594 ; 108 FCR 537 does not challenge such reasoning as their Honours, considering s 5A(1)(b) was applicable to Major Chapman's circumstances, said ' it is unnecessary to consider other bases for ineligibility '. That is, the majority did not make any finding in relation to s 5A(1)(a). Therefore, Weinberg J's decision, and reasons, are still good law in respect of his interpretation of s 5A(1)(a). Chapman [2001] FCA 594 ; 108 FCR 537 was silent on the interpretation of s 5(3) of the DFRDB Act. None of their Honours considered the section. The majority did not need to as s 5 as a whole was irrelevant for the purposes of s 5A(1)(b). It can be assumed that Wilcox J considered that Weinberg J's findings in relation to that section were correct as he did not mention s 5(3) even though he relied on s 5A(1)(a).


case_text: is essential for the resolution of the present issue to define the scope of such discretion. It was accepted by both parties in these proceedings that the Tribunal had a wide discretion under s 126(4). That is, the Tribunal had the discretion to order recovery of the whole amount of the overpayment or not recover the whole amount, as well as the discretion to recover only part of the whole amount. It is arguable s 126(4) does not grant such a broad discretion, given that it is worded ' where for any reason... an amount of benefit has been paid that is not payable ... the amount so paid may be recovered by the Authority ' (emphasis added). However, the Full Federal Court in Defence Force Retirement and Death Benefits Authority v Lokan [2008] FCAFC 43 at [1] did not question the proposition put before it, namely that by virtue of s 126(4) ' the AAT had a discretion that allowed it not to order the recovery of the full amount '. Accordingly, this Court will follow such interpretation. The issue then becomes one of construction of the Tribunal's decision. The Authority submits that, after considering all of the circumstances, the Tribunal exercised is discretion to recover the overpayment. Having made such finding, the Authority submits it was not open to the Tribunal to then decide that the tax component of the overpayment need not be recovered. The Authority cites [55] of the decision in its favour. The Tribunal found in such paragraph: Unfortunately for Mr Gregory, the circumstances described by him, including administrative errors, misleading information and delay by the respondent in attending to his overpayment, are insufficient reason for not recovering the debt. For these reasons, the discretion to recover the overpayment cannot be exercised in his favour. The Authority's submission proceeds from a misunderstanding of the decision of the Tribunal and overlooks the fact that such statement was only made following the Tribunal's discussion regarding the tax component of the overpayment. At [53] Tribunal found, ' I consider Mr Gregory is not liable to pay the outstanding $9,939 to the respondent. This amount should be deducted from the overpayment... I am unable to see any justification for requiring Mr Gregory to bear the burden of recovering this money '. At [54] it found: In balancing all relevant factors, and bearing in mind that the paramount consideration is that Mr Gregory received public monies to which he was not entitled, I find that the debt must be recovered. The decision to recover the overpayment, however, should be varied in order to substitute the amount actually received by Mr Gregory less tax deducted. Only then did the Tribunal move on to say what was extracted from [55]. In short, it cannot be said that the Tribunal exhausted its discretion at [55] and then went on to treat the tax component differently because it had already discussed the tax component. The only debt which the Tribunal, in the exercise of its discretion, found was owing was the net amount received by the respondent. That is, the monies actually received by him excluding the amount which was paid to the Commissioner. The Tribunal cited the decision of Deputy President Hack in Lokan and Defence Force Retirement and Death Benefits Authority [2007] AATA 1652. In that decision his Honour said at [13]-[15], ' Mr Lokan got no benefit from the PAYG instalments because they represented tax payable on monies to which he was not entitled... In my view, there is no practical benefit that would be achieved by requiring Mr Lokan to repay the PAYG instalments '. However, the Full Federal Court on appeal in Lokan [2008] FCAFC 43 made the following consent orders: The appeal be allowed. The decision of the Administrative Appeals Tribunal dated 9 August 2007 that the respondent repay to the applicant the sum of $21,352.86 be set aside. The respondent repay to the applicant by way of fortnightly instalments of $300.00 the sum of $29,791.86, commencing 28 days after the date the Court affixes the stamp of the Court to these orders. The decisions of the applicant dated 31 October 2006 and 23 March 2007 be affirmed. There be no order as to costs. Their Honours were aware of the deficiencies in the Tribunal decision before them, stating at [7] ' there was no evidence before the Tribunal that would support that conclusion [namely that there would be no ' practical benefit ']'. The Full Federal Court decision thus overturned the decision of Deputy President Hack and the decision should not have been relied upon by the Tribunal.


case_text: Court is not satisfied that the Tribunal considered itself ' legally bound ' by such a consideration. Rather it referred to the fact that it was ' the starting point in considering exercise of discretion ', that is, that the Tribunal expressly acknowledged that despite such initial position, the discretion continues to exist. There is authority for the proposition that a payment made from consolidated revenue, unsupported by a valid appropriation, should be recovered: see Auckland Harbour Board v R [1924] AC 318 ; see also Sheppard J in Director General of Social Services v Hales [1983] FCA 81 ; (1983) 47 ALR 281 at 322-323 where his Honour said that a ' paramount consideration ' in such cases is the receipt by the person of monies unlawfully paid to them from consolidated revenue and that therefore it ought to, unless other circumstances exist, be repaid. Mere reference to such proposition as a starting point of consideration did not suggest that such proposition unduly fettered the Tribunal's decision. The Authority does not challenge the proposition that a discretion was vested in the Tribunal when it applied s 126(4) of the DFRDB Act. In the exercise of that discretion it was open to the decision maker to have regard to an unlimited range of matters, subject to their relevance, including the question whether compassionate considerations should apply: see Sheppard J in Hales at 321.