case_text: Mr O'Neill's decision was not within the expression "decision to which this Act applies" in s 3(1) of the AD(JR) Act because it was not "a decision of an administrative character made ... under an enactment ..." because: it was not a final, ultimate or operative determination, and was therefore not a "decision" for the purposes of the AD(JR) Act ( Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 (" ABT v Bond ") at 338); and it was not required or authorised by any enactment, and legal rights or duties do not owe in an immediate sense their existence to the decision, or depend upon the presence of the decision for their enforcement ( Griffith University v Tang [2005] HCA 7 ; (2005) 221 CLR 99 (" Tang ") at [78] [80]). The Guidelines are not "an enactment" as defined in s 3(1) of the AD(JR) Act, because they are not an instrument made under an Act: the most that can be said is that they were issued by the Commissioner to ATO officers as part of his general administration of the Income Tax Assessment Act 1936 (Cth) ("the ITAA"), s 8 of which provides: "The Commissioner shall have the general administration of this Act".


case_outcome: followed

case_title: Australian Broadcasting Commission v Lenah Game Meats Pty Ltd [2001] HCA 63 ; (2001) 208 CLR 199


case_outcome: cited

case_text: while s 31A of the FCA Act (mutatis mutandis, s 17A of the FM Act) achieves nothing of significance in relation to migration cases, it is of general application and therefore affects all proceedings brought in the Court. The question of the precise meaning of s 31A of the FCA Act and s 17A of the FM Act and of any change they have made has already been the subject of numerous decisions in this Court and the Federal Magistrates Court. The most recent review of them of which I am aware is that of Driver FM on 19 March 2007 in Vivid Entertainment LLC v Digital Sinema Australia Pty Ltd [2007] FMCA 157 at [18] - [28] . The authorities to which his Honour referred are: Howard v Australian Fisheries Management Authority [2006] FMCA 975 ; MG Distribution Pty Ltd v Khan [2006] FMCA 666 ; Cate v International Flavours and Fragrances (Aust) Pty Ltd [2007] FMCA 36 ; Vans Inc v Offprice.Com.Au Pty Ltd [2006] FCA 137 ; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 701 IPR 146; Jewiss v Deputy Commissioner of Taxation [2006] FCA 1688 ; Alphapharm Pty Ltd v Merck & Co Inc [2006] FCA 1227 ; Duncan v Lipscombe Child Care Services Inc [2006] FCA 458 ; (2006) 150 IR 471 ; Australian and International Pilots Association v Qantas Airways Ltd [2006] FCA 1441 ; Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in liq) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416 ; Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 ; Hicks v Ruddock [2007] FCA 299. Not one of these cases was a migration case. In other words, the task of exploring the meaning of s 31A has arisen in a wide range of the cases in the Federal Magistrates Court and this Court, with the striking exception of migration cases, no doubt for the reason that I mentioned earlier: the provision is of no practical importance in them.


case_text: CJ referred (at [10]) to the University's reliance on judgments in Australian National University v Burns [1982] FCA 191 ; (1982) 43 ALR 25 and ANU v Lewins in this Court to the effect that in order to satisfy the description of a decision of an administrative character made under an enactment, a decision must be authorised or required by a statute and must be given legal force or effect by the statute. The Chief Justice observed that it is not enough that the decision be within power, and that the AD(JR) Act does not provide for review of all decisions of an administrative character made in pursuance of any power or authority that has its foundation in a statute. Gleeson CJ approved of a statement by Lehane J in ANU v Lewins (at 101) that a decision meets the test "only if it is one for the making of which the relevant statute either expressly or impliedly provides and one to which the statute gives legal force or effect". The ITAA does not expressly or impliedly provide for the making of guidelines or the making of a decision excluding particular documents from their scope. Moreover, the ITAA does not give legal force or effect to the Guidelines or to Mr O'Neill's decision. The proper analysis is that the Guidelines have been made by the Commissioner pursuant to his general power of administration under s 8 of the ITAA; the granting of the concession and the discretion to exclude particular documents from it are attributable only to that general power of administration; and it is O 33 r 12 of the FCRs that imposes a procedural obligation on the applicants as an adjunct to the appeal proceedings.


case_text: respect to whether the decision was made under an "instrument", the applicants submit that Tang establishes that the Guidelines are an instrument for the purposes of the AD(JR) Act. The High Court's decision in that case departed from previous authority to the effect that documents issued under a general power of administration could not constitute an instrument under the AD(JR) Act (as an illustration of that previous course of authority they refer to Australian National University v Lewins (1996) 68 FCR 87 (" ANU v Lewins") ).


case_text: some respects, the availability of review under s 39B(1A)(c) of the Judiciary Act is wider, and in some respects narrower, than that available under the AD(JR) Act. What is important for present purposes is that the notion of a "matter ... arising under any laws made by the Parliament" in s 39B(1)(c) of the Judiciary Act is wider than that of a "decision ... made under an enactment" of s 5 of the AD(JR) Act. Reference may be made to such cases as LNC Industries Ltd v BMW (Aust) Ltd [1983] HCA 31 ; (1983) 151 CLR 575 , Australian Solar Mesh Sales Pty Ltd v Anderson [2000] FCA 864 ; (2000) 101 FCR 1 , and ACTEW Corporation Ltd v Pangallo [2002] FCAFC 325 ; (2002) 127 FCR 1 , for an indication of the breadth of the concept of a matter arising under any laws made by the Parliament.


case_outcome: distinguished

case_title: Bellinz v Commissioner of Taxation (1998) 84 FCR 154

case_text: v Commissioner of Taxation (1998) 84 FCR 154 is also distinguishable. A Full Court of this Court held that where the question was one as to the inclusion of an amount as assessable income, or the allowance of an amount as a deduction, and no question of discretion or of administrative procedure arose, the Commissioner cannot be said to have acted unfairly where he has acted in accordance with the law. This is true even if there is an element of discrimination as between his decision in the case at hand and his decision in other cases. Such a holding, therefore, does not cover the present case because the Guidelines lay down administrative procedures and provide for a discretionary decision to exempt certain documents from the concession granted in them.


case_title: Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 70 IPR 146


case_title: Cate v International Flavours and Fragrances (Aust) Pty Ltd [2007] FMCA 36


case_text: relation to the estoppel argument, the representations contained in the Guidelines and the Commissioner's conduct in the tax appeals, including his acceptance of the applicants' claim for "accountant's privilege under the Guidelines", entitle the applicants to an injunction against the Commissioner as an officer of the Commonwealth on the basis of estoppel and/or by reference to the doctrines of waiver and election: Commonwealth v Verwayen [1990] HCA 39 ; (1990) 170 CLR 394 (" Verwayen "). This Court's jurisdiction under s 39B of the Judiciary Act is therefore properly enlivened.


case_title: Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in liq) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416


case_text: need not recount in further detail the claims of estoppel, unfairness and waiver. In relation to "substantive unfairness", the applicants cite R v Inland Revenue Commissioner; Ex parte Preston [1984] UKHL 5 ; [1985] AC 835 at 866 7 (Templeman LJ) (for the principle that judicial review may be warranted where a commissioner's decision is unfair and amounting to a breach of contract or breach of representation, and therefore within the ambit of an abuse of power). They acknowledge the note of caution in relation to this principle that was sounded by Lehane J in Daihatsu Australia Pty Ltd v Deputy Commissioner of Taxation (2001) 182 ALR 239 (" Daihatsu ") at [51] (that note of caution being that such a principle has not been the subject of extended consideration by Australian courts), but say that at the trial, they will submit that the principles of administrative law in Australia are developing to take account of a form of doctrine of substantive unfairness of the kind described by Lord Templeman. REASONING Order 20 of the FCRs and s 31A of the FCA Act Deloitte and Daihatsu concerned notices issued by the Commissioner under s 264 of the ITAA. In Deloitte , Goldberg J (at 451) expressed the opinion, and the Commissioner did not dispute, that the Commissioner's delegate was bound to have regard to the Guidelines when deciding to issue a notice under s 264. His Honour said that for this reason it was not necessary for him to deal with the Commissioner's submission that the Guidelines were not a source of rights. In Daihatsu , the taxpayer sought relief under s 16 of the AD(JR) Act and s 39B of the Judiciary Act in respect of notices issued under s 264 of the ITAA. Lehane J (at [68]) refused relief on the merits.


case_text: do not propose to add greatly to the discussion of the meaning and effect of s 31A. In the United Kingdom it has been held in the context of the similar rule 24.2 of the CPRs noted at [53] above, that the expressions "no real prospect of succeeding" and "no real prospect of successfully defending" require attention to be given to real, as opposed to "fanciful" or "merely arguable" prospects: Swain v Hillman [2001] 1 All ER 91 at 92; Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1 at [90], [95], [133] [134], [158] [162]; ED & F Man Products Ltd v Patel [2003] EWCA Civ 472 at [8] . The Queensland Court of Appeal has similarly held, following Swain v Hillman and Three Rivers District Council v Governor and Company of the Bank of England , that the "no reasonable prospects of success" test requires the court to determine whether there are "real" as opposed to "fanciful" prospects of success: Deputy Commissioner of Taxation v Salcedo [2005] QCA 227 ; [2005] 2 Qd R 232 at 235. The New South Wales Court of Appeal had to consider the expression "reasonable prospects of success" as it occurred in s 198J of the Legal Profession Act 1987 (NSW) in Lemoto v Able Technical Pty Ltd [2005] NSWCA 153 ; (2005) 63 NSWLR 300. That section prohibited a solicitor or barrister from providing legal services on a claim or defence of a claim for damages unless the solicitor or barrister reasonably believed on the basis of provable facts and a reasonably arguable view of the law that the claim or the defence had reasonable prospects of success. Later subsections elaborated on the meaning of the prohibition. This fact, coupled with the fact that the prohibition was directed to the reasonable belief of the solicitor or barrister, renders the discussion not directly relevant to the summary dismissal context in which the court is required to determine if there are reasonable prospects of success following an inter partes hearing.


case_text: s 31A I must be satisfied that the applicants have no reasonable prospect of success, but as s 31A(3) makes clear, this does not mean that I must be satisfied that the proceeding is hopeless or bound to fail. I suggest that the legislature's intention in enacting s 31A was to lower the bar for obtaining summary judgment (including summary dismissal) below the level that had been fixed by such authorities as Dey v Victorian Railway Commissioners (1949) 78 CLR 62 at 91-92, and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129-130: see Lawrenson Light Metal Die Casting Pty Ltd (in liq) v Cosmick Pty Ltd [2006] FCA 753 at [15].


case_title: Deloitte Touche Tohmatsu v Federal Commissioner of Taxation (1998) 40 ATR 435

case_text: and Daihatsu concerned notices issued by the Commissioner under s 264 of the ITAA. In Deloitte , Goldberg J (at 451) expressed the opinion, and the Commissioner did not dispute, that the Commissioner's delegate was bound to have regard to the Guidelines when deciding to issue a notice under s 264. His Honour said that for this reason it was not necessary for him to deal with the Commissioner's submission that the Guidelines were not a source of rights. In Daihatsu , the taxpayer sought relief under s 16 of the AD(JR) Act and s 39B of the Judiciary Act in respect of notices issued under s 264 of the ITAA. Lehane J (at [68]) refused relief on the merits.


case_title: Duncan v Lipscombe Child Care Services Inc [2006] FCA 458 ; (2006) 150 IR 471


case_text: the proposition that the Commissioner is entitled to adopt a policy consistent with the statute to provide guidance as to the exercise of a statutory discretionary power, the applicants cite Elias v Commissioner of Taxation (2002) 123 FCR 499 at [34]. Hely J there held that while there must not be an inflexible policy that limits a statutory discretion, a policy as to how the discretion will "normally" be exercised can be adopted. The case concerned the power given to the Commissioner by s 255- 10 (1) of Sch 1 of the TAA to defer the time at which the amount of a tax-related liability was, or was to become, due and payable. With respect to the competency of the AD(JR) application, the applicants submit that:


case_title: Felton v Mulligan (1971) 124 CLR 367

case_text: relation to s 39B(1A) of the Judiciary Act , the Court has jurisdiction if, relevantly, there is a "matter" "arising under" a law made by the Parliament: s 39B(1A)(c). This test is satisfied only if "the right or duty in question in the matter owes its existence to federal law or depends on federal law for its enforcement": R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett v Optiz (1945) 70 CLR 141 at 154 (Latham CJ), and Felton v Mulligan (1971) 124 CLR 367 at 388 (Windeyer J). The Guidelines' lack of statutory status means that a dispute as to whether Mr O'Neill applied them correctly, or accorded procedural fairness before making his decision, does not give rise to any such matter. The submissions of the applicants (respondents to the motion)


case_title: Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401


case_text: Honours noted (at [78]) that while a decision, in order to be susceptible to review under the AD(JR) Act must be either expressly or by implication authorised or required by an enactment, requirement or authority is not alone sufficient. The further stipulation that the decision must be "of an administrative character" meant that there must be an affecting of legal rights and obligations. Their Honours said (at [80]): Do legal rights or duties owe in an immediate sense their existence to the decision or depend upon the presence of the decision for their enforcement [cf R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett at 154] ? To adapt what was said by Lehane J in Lewins [ ANU v Lewins at 103], does the decision in question derive from the enactment the capacity to affect legal rights and obligations? Are legal rights and obligations affected not under the general law but by virtue of the statute? [ General Newspapers Pty Ltd v Telstra Corporation [1993] FCA 473 ; (1993) 45 FCR 164 at 169]. Mr O'Neill's decision does not derive from the ITAA a capacity to affect legal rights and obligations. Nor do legal rights (of the Commissioner) or duties (of the applicants) in relation to the production of Documents 226 to 238 "owe in an immediate sense their existence to the decision, or depend upon the presence of the decision for their enforcement": Tang at [80]. It is O 33 r 12 and the general law that give the Commissioner procedural rights and impose on the applicants procedural obligations. Black CJ said (at 273) that where the sole source of authority for a decision is a general power of administration conferred by an enactment, the decision will be "unlikely to be one that is given force or effect by an enactment or by a principle of law applicable to the enactment". In saying this, the Chief Justice quoted (at 272) the following passage from the judgment of Davies and Einfeld JJ, with which Gummow J agreed, in General Newspapers Pty Ltd v Telstra Corporation at 172: The ADJR Act is thus concerned with decisions which, being authorised or required by an enactment, are given force or effect by the enactment or by a principle of law applicable to the enactment. On a broad view, the Commissioner is exercising public power in relation to the assessment and recovery of tax, although the right to issue a notice to produce under the FCRs is not itself such a power. The assessment and recovery of tax is radically different from, for example, conduct leading to the making of contracts and the making of them: see General Newspapers Pty Ltd v Telstra Corporation . I am not satisfied that the broad view referred to has no reasonable prospects of prevailing. There should be a final hearing, as soon as practicable, of the claim under s 39B(1) of the Judiciary Act . Unlike the debate relating to s 39B(1) , that relating to s 39B(1A)(c) was confined to the question of jurisdiction.


case_title: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125


case_outcome: applied

case_text: Mr O'Neill's decision was not within the expression "decision to which this Act applies" in s 3(1) of the AD(JR) Act because it was not "a decision of an administrative character made ... under an enactment ..." because: it was not a final, ultimate or operative determination, and was therefore not a "decision" for the purposes of the AD(JR) Act ( Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 (" ABT v Bond ") at 338); and it was not required or authorised by any enactment, and legal rights or duties do not owe in an immediate sense their existence to the decision, or depend upon the presence of the decision for their enforcement ( Griffith University v Tang [2005] HCA 7 ; (2005) 221 CLR 99 (" Tang ") at [78] [80]). The Guidelines are not "an enactment" as defined in s 3(1) of the AD(JR) Act, because they are not an instrument made under an Act: the most that can be said is that they were issued by the Commissioner to ATO officers as part of his general administration of the Income Tax Assessment Act 1936 (Cth) ("the ITAA"), s 8 of which provides: "The Commissioner shall have the general administration of this Act". With respect to whether the decision was made under an "instrument", the applicants submit that Tang establishes that the Guidelines are an instrument for the purposes of the AD(JR) Act. The High Court's decision in that case departed from previous authority to the effect that documents issued under a general power of administration could not constitute an instrument under the AD(JR) Act (as an illustration of that previous course of authority they refer to Australian National University v Lewins (1996) 68 FCR 87 (" ANU v Lewins") ). All earlier decisions on the matter must now be understood in light of the High Court's consideration in Tang of the expression "a decision of an administrative character made ... under an enactment". That case concerned a decision of Griffith University, through its relevant committee, to exclude a postgraduate student, Ms Tang, from a program leading to the award of the degree of Doctor of Philosophy. The decision was based on a finding that Ms Tang had engaged in academic misconduct. The relevant admission/exclusion, academic misconduct and appeal processes were the subject of policies adopted by the University Council. The policy documents were similar to the Guidelines in the sense that although the making of them was within the power and mandate of the Council as the University's governing body under the Griffith University Act 1998 (Qld), that Act did not refer, expressly or by implication, to the laying down of the policies. Rather, to do so was in the general power of the University Council as the body having the general functions and powers of management given it by the Act. Ms Tang applied for review of the University's decision under the Judicial Review Act 1991 (Qld). The issue was whether that decision was "a decision of an administrative character made ... under an enactment" a formula borrowed from the AD(JR) Act. The University sought summary dismissal. It failed at first instance in the Supreme Court of Queensland and then before the Queensland Court of Appeal. The High Court, however, by a 4:1 majority, allowed the University's appeal. Two judgments were delivered by the Judges constituting the majority, one by Gleeson CJ and the other by Gummow, Callinan and Heydon JJ ("joint judgment"). In their joint judgment in Tang , Gummow, Callinan and Heydon JJ pointed (at [60]) to dangers in looking at the expression "a decision of an administrative character made ... under an enactment" otherwise than as a whole. Their Honours quoted the following passage from Aronson MI, Dyer BD, Groves M, Judicial Review of Administrative Action (3 rd ed, Lawbook Co, 2004) pp 73-74 (footnotes omitted): The recent trend is to treat decisions which can find no other statutory source of authority than such a clause [giving power or even a duty to administer an Act and to do all things necessary in that regard] as not being made under an enactment for ADJR purposes, although there has been scant attempt to identify why that approach should be adopted as a matter of principle. (Original emphasis.) Their Honours noted (at [78]) that while a decision, in order to be susceptible to review under the AD(JR) Act must be either expressly or by implication authorised or required by an enactment, requirement or authority is not alone sufficient. The further stipulation that the decision must be "of an administrative character" meant that there must be an affecting of legal rights and obligations. Their Honours said (at [80]): Do legal rights or duties owe in an immediate sense their existence to the decision or depend upon the presence of the decision for their enforcement [cf R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett at 154] ? To adapt what was said by Lehane J in Lewins [ ANU v Lewins at 103], does the decision in question derive from the enactment the capacity to affect legal rights and obligations? Are legal rights and obligations affected not under the general law but by virtue of the statute? [ General Newspapers Pty Ltd v Telstra Corporation [1993] FCA 473 ; (1993) 45 FCR 164 at 169]. Mr O'Neill's decision does not derive from the ITAA a capacity to affect legal rights and obligations. Nor do legal rights (of the Commissioner) or duties (of the applicants) in relation to the production of Documents 226 to 238 "owe in an immediate sense their existence to the decision, or depend upon the presence of the decision for their enforcement": Tang at [80]. It is O 33 r 12 and the general law that give the Commissioner procedural rights and impose on the applicants procedural obligations. Gummow, Callinan and Heydon JJ did not see it as an obstacle to their view the fact that the terms of the policy and other circumstances may well have created an expectation in Ms Tang that any withdrawal from her PhD candidature would only follow upon the fair treatment of complaints against her. Their Honours said (at [92]) that such an expectation would not create in Ms Tang any substantive rights under the general law, which would render the decision she challenged a decision made under the University's Act. A similar observation is to be made in relation to the Guidelines. They are calculated to create an expectation that they will be adhered to by the Commissioner. However, that expectation does not convert a non-reviewable decision into a reviewable one. The following summary paragraph (at [96] of the joint judgment in Tang ) concludes their Honours' discussion of the issues and immediately precedes their discussion of the orders to be made: The decisions of which the respondent complains were authorised, albeit not required, by the University Act. The Committees involved depended for their existence and powers upon the delegation by the Council of the University under ss 6 and 11 of the University Act. But that does not mean that the decisions of which the respondent complains were "made under" the University Act in the sense required to make them reviewable under the Review Act. The decisions did not affect legal rights and obligations. They had no impact upon matters to which the University Act gave legal force and effect. The respondent enjoyed no relevant legal rights and the University had no obligations under the University Act with respect to the course of action the latter adopted towards the former. This passage applies, mutatis mutandis, to the Guidelines and to Mr O'Neill's decision under them. I turn now to consider other authorities to which I was referred. In Tang , Gummow, Callinan and Heydon JJ described (at [84]) as a "sound ground" of non-reviewability, Black CJ's reference to the Commissioner's voting decision as one that was not given statutory effect by s 8 of the ITAA. For the reasons given above, the application is incompetent in so far as it relies on the AD(JR) Act. Sections 39B(1) and (1A) of the Judiciary Act In this case the jurisdictional question under s 39B(1) is whether the proceeding is a matter in which certiorari or an injunction is sought against an officer of the Commonwealth. It is not suggested that the Commissioner and Mr O'Neill (an Assistant Commissioner of Taxation) are not such officers. The applicants seek an order quashing or setting aside Mr O'Neill's decision and an injunction restraining the respondents "from seeking access to" Documents 226 to 238. The Court therefore has jurisdiction under s 39B(1) of the Judiciary Act . The question that remains in relation to s 39B(1) is whether the applicants have no reasonable prospect of successfully prosecuting the proceeding (ie gaining the order and injunction they seek). In the present state of the evidence and exploration of the legal issues involved, I am not persuaded that they have no reasonable prospects of success of doing so. Evidence has not been filed.


case_title: Hicks v Ruddock [2007] FCA 299


case_title: Howard v Australian Fisheries Management Authority [2006] FMCA 975


case_text: [84] of the joint judgment, their Honours referred to Hutchins v Deputy Commissioner of Taxation (1996) 65 FCR 269 (" Hutchins "). They referred with approval (at [84]) to a statement by Lockhart J in Hutchins (at 277) that the decision to vote at the meeting of creditors could not itself have conferred any benefit or imposed any disadvantage when it was made, and that any affecting of legal rights arose from the cumulative effect of the votes later cast at the meeting. The respondents submit that Mr O'Neill's decision should similarly be distinguished from the decision of a different officer of the ATO to issue the notice to produce. I do not accept this particular submission. Mr O'Neill's decision was in a different position from that with which Hutchins was concerned. Lockhart J was emphasising that the Commissioner's decision to vote against the motion could not advance matters until the motion was voted upon at the meeting of creditors. In the present case, a decision to lift the concession was provided for in the Guidelines and it was within the power of the Commissioner alone to access Documents 226 to 238. In substance, it was the Commissioner who decided both to lift the concession and to enforce his right, as a litigant, of access to Documents 226 to 238. If the Guidelines had been an Act, the provision for the decision to lift the concession would have been comparable to the provision of the making of a finding that a licensee was no longer a fit and proper person to hold a commercial licence, for which the Broadcasting Act 1942 (Cth) s 88(2) provided as the foundation of a decision to suspend or revoke such a licence, that was one of the decisions considered in ABT v Bond . What is important, however, is that the Guidelines are not an "enactment", and the decision does not, by reason of them or of any enactment, immediately affect legal rights and obligations. Mr O'Neill's decision would be reviewable as "a decision of an administrative character made ... under an enactment" if: (a) the ITAA provided for (in the relevant sense) the making of the Guidelines granting the concession; (b) the Guidelines provided for the granting of the concession and for the making of the decision to lift it as a condition precedent to the taking of action to compel the giving of access; (c) the Act or the Guidelines (the latter, within power) provided for the compelling of the giving of access. Hutchins , referred to at [73], has much in common with the present case. The decision impugned was a decision of the Deputy Commissioner of Taxation to vote against a motion put at a meeting of creditors convened under Pt X of the Bankruptcy Act 1966 (Cth). The application was made under the AD(JR) Act. At first instance, Jenkinson J had upheld an objection to competency. The applicant contended that the decision was made under one or more of ss 8, 208 and 209 of the ITAA.


case_title: Jewiss v Deputy Commissioner of Taxation [2006] FCA 1688


case_title: Lawrenson Light Metal Die Casting Pty Ltd (in liq) v Cosmick Pty Ltd [2006] FCA 753


case_outcome: discussed

case_title: Lemoto v Able Technical Pty Ltd [2005] NSWCA 153 ; (2005) 63 NSWLR 300


case_title: LNC Industries Ltd v BMW (Aust) Ltd [1983] HCA 31 ; (1983) 151 CLR 575


case_title: ED & F Man Products Ltd v Patel [2003] EWCA Civ 472


case_title: MG Distribution Pty Ltd v Khan [2006] FMCA 666


case_title: Naismith v McGovern [1953] HCA 59 ; (1953) 90 CLR 336


case_text: applicants rely on ONE.TEL Ltd v Commissioner of Taxation (2000) 101 FCR 548 (" ONE.TEL ") in which there was an application to set aside notices given by the Commissioner under s 108 of the Sales Tax Assessment Act 1992 (Cth) ("the STAA") requiring the addressee to provide the Commissioner with information. A Deputy Commissioner of Taxation gave approval under the Guidelines to the seeking of access. Burchett J held, at [42], that the Guidelines gave rise to a legitimate expectation that the Commissioner would act in conformity with them. He held that the Commissioner was not at liberty to depart from them (except in such an urgent case as might arise if there were grounds for fearing destruction of the documents), without giving the person concerned an opportunity to make out a case why the Commissioner should not do so. The applicants rely heavily on the decision of Burchett J in ONE.TEL . That case concerned an application to set aside notices issued under s 108 of the STAA. That section provided: (1) The Commissioner may direct a person ... (a) to provide the Commissioner with such information as the Commissioner requires; ... for the purpose of enabling the Commissioner to apply the sales tax law in relation to the person, or in relation to any other person. Section 109 of the STAA provided that for the purposes of the sales tax law, an authorised officer was entitled to full and free access to documents at all reasonable times, and might inspect, examine, copy, or take extracts from, any document. The Commissioner had issued "Guidelines for the Exercise of Access Powers in Relation to Accountants' Papers" ("the guidelines"). The title and the content were not identical with those of the Guidelines, but the substance of them was similar. Under the guidelines, a decision was made approving of access to certain documents of external accountants on the basis that exceptional circumstances existed. Burchett J stated (at [42]) that the formality and detail of the guidelines and the nature of their subject matter strongly suggested that the guidelines created a legitimate expectation that the Commissioner would not depart from them without giving the person affected an opportunity to make out a case as to why he should not do so. In the event, however, his Honour stated that there had been no breach of natural justice in the circumstances. His Honour also rejected (at [45]) a submission that the decision granting access was so unreasonable that no reasonable person could have made it. His Honour's reference to natural justice and to unreasonableness suggest that he may have been thinking in terms of s 5(1)(a) and s 5(1)(e) and (2)(g) of the AD(JR) Act, although he did not refer to that Act. The report of ONE.TEL is in fact a report of his Honour's reasons for judgment in three proceedings brought by ONE.TEL Ltd against the Deputy Commissioner of Taxation NG 120 of 1998, NG 449 of 1998 and NG 33 of 1999. It is only the last that is of present relevance, in which the application was made for review of: the decision or the conduct of the respondent made on or about 15 December 1998 to give approval for officers of the Commissioner of Taxation to have access under section 109 of the [STAA] to documents in the possession of the applicants. In oral submissions in that case, senior counsel for the Deputy Commissioner said that the reference to "conduct" had been included in case the view should be taken that the only relevant decision was the decision to issue the notice under s 108 of the STAA. In that case, so it was said, the antecedent decision to lift the concession was conduct that led to the making of that decision. In the present case the decision to allow access is attacked as a "decision" alone. ONE.TEL Ltd asserted that it was aggrieved by the decision because it purported to give approval to officers of the Commissioner to have access under s 109 of the STAA to "restricted source" and "non-source" documents in breach of the guidelines. The application also referred to a breach of the rules of natural justice or procedural fairness, and to other grounds mentioned in s 5 of the AD(JR) Act. The Deputy Commissioner filed a notice of objection to competency on the grounds that the decision to give approval for access was not a decision made "under an enactment" and was also not "conduct", within the meaning of the AD(JR) Act. However, his Honour's reasons do not expressly refer to the objection to competency. In particular, they do not address the contention that the decision was not "made under an enactment". It is difficult to know what to make of his Honour's reasons because they do not, with respect, expose clearly what the field of contest was in relation to the guidelines and the decision to lift the concession made under them, that his Honour was addressing. The respondents submit that ONE.TEL is distinguishable because the decision to approve access was connected with the exercise of a statutory power, namely, the power given to the Commissioner by s 108 of the STAA to direct a person to produce documents to the Commissioner. I agree. In the present case, the decision to approve of access is a precursor of the exercise of a power that O 33 r 14 of the FCRs confers, not only on the Commissioner, but on all litigants before this Court. As the issue as to competency was not addressed in Burchett J's reasons, I do not regard his Honour's decision as standing in the way of my giving effect to the view that I have formed.


case_text: relation to s 39B(1A) of the Judiciary Act , the Court has jurisdiction if, relevantly, there is a "matter" "arising under" a law made by the Parliament: s 39B(1A)(c). This test is satisfied only if "the right or duty in question in the matter owes its existence to federal law or depends on federal law for its enforcement": R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett v Optiz (1945) 70 CLR 141 at 154 (Latham CJ), and Felton v Mulligan (1971) 124 CLR 367 at 388 (Windeyer J). The Guidelines' lack of statutory status means that a dispute as to whether Mr O'Neill applied them correctly, or accorded procedural fairness before making his decision, does not give rise to any such matter. The submissions of the applicants (respondents to the motion) Their Honours noted (at [78]) that while a decision, in order to be susceptible to review under the AD(JR) Act must be either expressly or by implication authorised or required by an enactment, requirement or authority is not alone sufficient. The further stipulation that the decision must be "of an administrative character" meant that there must be an affecting of legal rights and obligations. Their Honours said (at [80]): Do legal rights or duties owe in an immediate sense their existence to the decision or depend upon the presence of the decision for their enforcement [cf R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett at 154] ? To adapt what was said by Lehane J in Lewins [ ANU v Lewins at 103], does the decision in question derive from the enactment the capacity to affect legal rights and obligations? Are legal rights and obligations affected not under the general law but by virtue of the statute? [ General Newspapers Pty Ltd v Telstra Corporation [1993] FCA 473 ; (1993) 45 FCR 164 at 169]. Mr O'Neill's decision does not derive from the ITAA a capacity to affect legal rights and obligations. Nor do legal rights (of the Commissioner) or duties (of the applicants) in relation to the production of Documents 226 to 238 "owe in an immediate sense their existence to the decision, or depend upon the presence of the decision for their enforcement": Tang at [80]. It is O 33 r 12 and the general law that give the Commissioner procedural rights and impose on the applicants procedural obligations.


case_text: need not recount in further detail the claims of estoppel, unfairness and waiver. In relation to "substantive unfairness", the applicants cite R v Inland Revenue Commissioner; Ex parte Preston [1984] UKHL 5 ; [1985] AC 835 at 866 7 (Templeman LJ) (for the principle that judicial review may be warranted where a commissioner's decision is unfair and amounting to a breach of contract or breach of representation, and therefore within the ambit of an abuse of power). They acknowledge the note of caution in relation to this principle that was sounded by Lehane J in Daihatsu Australia Pty Ltd v Deputy Commissioner of Taxation (2001) 182 ALR 239 (" Daihatsu ") at [51] (that note of caution being that such a principle has not been the subject of extended consideration by Australian courts), but say that at the trial, they will submit that the principles of administrative law in Australia are developing to take account of a form of doctrine of substantive unfairness of the kind described by Lord Templeman. REASONING Order 20 of the FCRs and s 31A of the FCA Act


case_title: Rogers v Asset Loan Co Pty Ltd [2007] FCA 195


case_text: [18], the Chief Justice referred to Scharer v State of New South Wales [2001] NSWCA 360 ; (2001) 53 NSWLR 299 , in which Davies A-JA said (at 313) that under the AD(JR) Act: The crux of the issue in each case is whether the enactment has played a relevant part in affecting or effecting rights or obligations. A grant of authority to do that which under the general law a person has authority to do is not regarded as sufficient. The right to require production of Documents 226 to 238 is given by O 33 r 12 which applies to any party to any proceeding before this Court. The same can be said of other procedural rights given by the FCRs directly, or of the right given by them to apply for a procedural benefit of one kind or another, such as the right to apply for leave to issue a subpoena or the right to apply for an order for discovery. Gleeson CJ held that the termination of Ms Tang's candidature occurred under the general law and under the terms and conditions on which the University was willing to enter into a relationship with her, and added (at [23]): The power to formulate those terms and conditions, to decide to enter into the relationship, and to decide to end it, was conferred in general terms by the Griffith University Act , but the decision to end the relationship was not given legal force or effect by that Act. Mr O'Neill's decision was one step antecedent to the decision (by a different officer) to give the notice to produce. Mr O'Neill's decision to exclude Documents 226 to 238 from the scope of the concession can be usefully compared to a decision provided for by the Griffith University's policy that a candidate had been guilty of academic misconduct. Such a decision would have gained nothing in terms of susceptibility to judicial review by reason of its being distinct from the decision to exclude a student; likewise, Mr O'Neill's decision to allow access to Documents 226 to 238 vis-a-vis the decision to give the notice to produce them in the appeal proceedings.


case_title: Swain v Hillman [2001] 1 All ER 91


case_title: Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1


case_text: while s 31A of the FCA Act (mutatis mutandis, s 17A of the FM Act) achieves nothing of significance in relation to migration cases, it is of general application and therefore affects all proceedings brought in the Court. The question of the precise meaning of s 31A of the FCA Act and s 17A of the FM Act and of any change they have made has already been the subject of numerous decisions in this Court and the Federal Magistrates Court. The most recent review of them of which I am aware is that of Driver FM on 19 March 2007 in Vivid Entertainment LLC v Digital Sinema Australia Pty Ltd [2007] FMCA 157 at [18] - [28] . The authorities to which his Honour referred are: Howard v Australian Fisheries Management Authority [2006] FMCA 975 ; MG Distribution Pty Ltd v Khan [2006] FMCA 666 ; Cate v International Flavours and Fragrances (Aust) Pty Ltd [2007] FMCA 36 ; Vans Inc v Offprice.Com.Au Pty Ltd [2006] FCA 137 ; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 701 IPR 146; Jewiss v Deputy Commissioner of Taxation [2006] FCA 1688 ; Alphapharm Pty Ltd v Merck & Co Inc [2006] FCA 1227 ; Duncan v Lipscombe Child Care Services Inc [2006] FCA 458 ; (2006) 150 IR 471 ; Australian and International Pilots Association v Qantas Airways Ltd [2006] FCA 1441 ; Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in liq) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416 ; Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 ; Hicks v Ruddock [2007] FCA 299. Not one of these cases was a migration case. In other words, the task of exploring the meaning of s 31A has arisen in a wide range of the cases in the Federal Magistrates Court and this Court, with the striking exception of migration cases, no doubt for the reason that I mentioned earlier: the provision is of no practical importance in them.


case_title: Vivid Entertainment LLC v Digital Sinema Australia Pty Ltd [2007] FMCA 157


case_text: has suffered loss and damage by this breach of the Dealership Agreements. Particulars of loss and damage Loss of profits from the Dealership from around October 2003. Loss of monies invested in the Dealership unable to be recouped from profits of the Dealership after April 2004. Losses incurred in connection with closing down the Dealership. Thereafter, when addressing those allegations relevant to equitable estoppel and unconscionable conduct, the Amended Statement of Claim also states: In giving the Notice of Termination and terminating the Dealership, COA, acting both for itself and on behalf of CAT, COCC and CSARL, departed from the Relevant Understandings and acted contrary to the Relevant Representations. It would thus appear that the claim in contract sought to be advanced on behalf of the Applicant is as follows: (i) the parties to the Dealership Agreements are the Applicant and the First Respondent; (ii) the " rights, interests and obligations under the Dealership Agreements " are said to have been first assigned " on or around 1 January 2003 " from the First Respondent to the Third Respondent and thereafter (but at the same time) from the Third Respondent to the Fourth Respondent; and (iii) the First Respondent was the entity that is said to have given the notice of termination on 7 October 2003. With reference to the implied duty of good faith, it is then said that: (iv) the giving of the notice of termination " breached this term of the Dealership Agreements ". The allegation is that those entities that " failed to act reasonably and in good faith " and without " due regard to the objects of the Dealership Agreements " are: (v) the First, Third and Fourth Respondents. Notwithstanding the amendments effected by the Amended Statement of Claim , the following difficulties nevertheless remain, namely: (i) how can it be said that the Third and Fourth Respondents acted in breach of a term of agreements, namely the Dealership Agreements , to which they were not a party? Moreover, and assuming that there were at least two " deeds of assignment " and that the parties to those " deeds " were one or other of the First, Third and Fourth Respondents: (ii) how can it be said that the Third Respondent remains exposed to liability to the Applicant if the Third Respondent " reassigned " the " rights, interests and obligations " to the Fourth Respondent? No novation agreement of the Dealership Agreements to which the Applicant is a party is apparently relied upon. Reservation may also be expressed as to whether the Applicant is correct in its allegations as to the manner in which the " deeds of assignment " operated. That which may be exposed in due course remains the commercial objective sought to be achieved by the two " deeds " being executed on apparently one and the same day " assigning " and thereafter " reassigning " the same " rights, interests and obligations ". But that is not a matter which need be further addressed at this stage. Nor need attention presently be given to whether it is possible to unilaterally assign the " obligations " or burden of an agreement in a manner which binds the other contracting party without its consent: Carter J, Peden E and Tolhurst G, Contract Law in Australia (5 th ed, LexisNexis Butterworths, 2007) at [17-37]. At least one further difficulty in relation to the contract claim is: (iii) a manner of pleading whereby the draftsman seeks to set forth the manner in which the First, Third and Fourth Respondents " failed to act reasonably and in good faith " by way of " Particulars " rather than by way of a statement of " material facts " as required by O 11 r 2. Sections 51A and 52 Section 51A , it has been recognised, " is a qualified and complex deeming provision ": Ackers v Austcorp International Ltd [2009] FCA 432 at [354] per Rares J. It is, however, properly characterised as an interpretation provision and does not of itself create a cause of action: Ting v Blanche [1993] FCA 524 ; (1993) 118 ALR 543 at 552. Section 51A provides as follows: Interpretation (1) For the purposes of this Division, where a corporation makes a representation with respect to any future matter (including the doing of, or the refusing to do, any act) and the corporation does not have reasonable grounds for making the representation, the representation shall be taken to be misleading. (2) For the purposes of the application of subsection (1) in relation to a proceeding concerning a representation made by a corporation with respect to any future matter, the corporation shall, unless it adduces evidence to the contrary, be deemed not to have had reasonable grounds for making the representation. (3) Subsection (1) shall be deemed not to limit by implication the meaning of a reference in this Division to a misleading representation, a representation that is misleading in a material particular or conduct that is misleading or is likely or liable to mislead. In Ting , supra, Hill J observed of this provision: The section is but an interpretation section; it does not of itself create a cause of action, nor define a norm of conduct. The relevant cause of action is to be found in s 82(1) of the Act by reference to the norm of conduct laid down in s 52 of the Act. What s 51A does, in a practical sense, in cases where it applies, is to cast the burden of proof upon the respondent corporation who has made a representation about a future matter to show that in making that representation it had reasonable grounds for so doing. In the language of Sheppard and Neaves JJ in Cummings v Lewis (1993) 113 ALR 285 ; ATPR (Digest) 46-103, s 51A is "designed to facilitate proof" (at ALR 294; ATPR 53 ,450). In the present proceeding, the course pursued by the draftsman has been to expressly plead reliance upon s 51A where it has been considered appropriate to do so. Whether it was necessary to pursue such a course may be left to one side. That which may also be presently left to one side is whether each of the representations which the Applicant presently maintains are representations in respect " to any future matter " truly falls within that description. Of present relevance is the importance assumed by s 51A in casting the " burden of proof " upon the Respondents. Different views have also been expressed as to the manner of operation of s 51A and the nature of the evidence to be adduced by a respondent before the " deeming " effect of s 51A ceases to operate: McGrath v Australian Naturalcare Products Pty Ltd [2008] FCAFC 2 , 165 FCR 230 ; Skiwing Pty Ltd t/as Café Tiffany's v Trust Co of Australia Ltd (Stockland Property Management Ltd) [2009] FCA 347 at [21] to [24] [2009] FCA 347 ; , 255 ALR 339 at 343 to 344 per Buchanan J. But all of these matters may be left to be resolved at a later date.


case_text: when considering whether an Applicant has made out a " prima facie case ", the kind of evidence adduced need only be " in proportion to the nature of such an interlocutory issue ": WSGAL Pty Ltd v Trade Practices Commission [1992] FCA 510 ; (1992) 39 FCR 472 at 476 per Beaumont J. As the requirement is imposed at the outset of proceedings, it does not require the kind of scrutiny that would occur (for example) in a submission of " no case to answer " following the closure of an applicant's case at trial: Merpro Montassa Ltd v Conoco Speciality Productions Inc [1991] FCA 70 ; (1991) 28 FCR 387 (" Merpro ") at 390. It may be appropriate to draw inferences more readily in favour of an applicant, bearing in mind that the applicant will not have had the advantage of discovery, subpoena and other procedural aids to the making out of a " prima facie case ": Western Australia v Vetter Trittler Pty Ltd (In liq) (Receiver and Manager Appointed) (1991) 30 FCR 102 (" Vetter Trittler ") at 110 per French J, citing Merpro . This " threshold requirement " of a " prima facie case ... is met where material is placed before the Court from which inferences are open which, if translated into findings of fact, would support the relief claimed ": Australian Competition and Consumer Commission v European City Guide SL [2009] FCA 1206 at [4] per Moore J, applying Vetter Trittler. But " [a]ctual evidence rather than mere allegations are required ": Applecross Pte Ltd v Lim [2009] FCA 1102 at [6] per McKerracher J.


case_title: Australian Competition and Consumer Commission v European City Guide SL [2009] FCA 1206


case_outcome: referred to

case_text: compliance with O 8 r 3(2) the Court retains a discretion as to whether leave should be granted to serve a respondent outside Australia. So much follows from the use of the term " may ". It has thus been observed that "... the power given by O 8 r 3(2) is clearly a discretionary power ": West v TWG Services Ltd [2009] FCA 1052 at [10] . His Honour Justice Gray was there satisfied that the requirements of O 8 r 3(2) had been satisfied but nevertheless concluded as follows: [61] This being the case, my view is that I should refuse the leave sought to serve the amended application and the amended statement of claim on the respondent in England. To serve those documents in their present form would be to visit upon the respondent a proceeding in Australia involving a significant number of claims, with only a small number of those claims justifying the grant of leave for such service. Although technically the proceeding as a whole might fall within O 8 r 2 of the Federal Court Rules , because of the presence of the small number of claims, this is not enough to persuade me to exercise the discretion to permit service out of the jurisdiction in respect of the whole proceeding. To do so would be to allow the tail to wag the dog. See also: Best Australia Ltd v Aquagas Marketing Pty Ltd (1988) 83 ALR 217 at 222 to 223. The ambit of those considerations relevant to the exercise of the discretion may, however, be open to some debate and differences of opinion: e.g. Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2006] FCAFC 116 , 154 FCR 425.


case_text: should also be noted that if a " prima facie case " for relief has been made out in respect to one cause of action, it is immaterial that a " prima facie case " for relief has not been made out in respect to another cause of action: Cell Tech Communications Pty Ltd v Nokia Mobile Phones (UK) Ltd (1995) 58 FCR 365 at 373 per Lindgren J. See also: Trade Practices Commission v The Gillette Company (No 1) [1993] FCA 496 ; (1993) 45 FCR 366 at 371 per Burchett J. This was, of course, the issue that divided the Full Court in Bray v F Hoffman-La Roche Ltd [2003] FCAFC 153, 130 FCR 317.


case_title: H 1976 Nominees Pty Ltd v Galli (1979) 30 ALR 18

case_text: in respect to such allegations, it is considered, include such matters as: (i) the imprecision in allegations expressed in such broad terms as " [d]uring the 1980s and 1990s " — especially in circumstances where some of the " Particulars " provided do not give further content as to when such conduct is said to have occurred, but some of those " Particulars " (it must be recognised) do provide greater certainty; (ii) the fact that some of the matters set forth in Schedule B do not seem relevant to any representation being made as to any " future matter "; (iii) the lack of any precision in the manner in which it is said the First Respondent " [r]esolved to hold itself free to conduct itself on a basis inconsistent with " understandings said to have been reached and uncertainty as to whether such allegations seek to place reliance upon s 51A or perhaps s 52 ; (iv) the fact that the " Particulars " of the representation said to be set forth in Schedule D are more appropriate to be expressed as statements of " material facts " rather than as " Particulars "; and (v) the fact that the " Particulars " provided in Schedules E and F are more appropriate to be expressed as statements of " material facts " rather than as " Particulars " — but, more relevantly, to the extent that the representations there set forth are said to be " implied " — the absence of any basis upon which any such implication is said to arise. The existing pleading, it is considered, remains fundamentally deficient — even when recognition is given to the fact that it has been drafted in advance of (for example) discovery. If the Amended Statement of Claim remains in its present form, it would be open to one or other of the Respondents to (for example) deny or not admit a material fact. The purpose to be served by the provision of " Particulars ", it is to be recalled, is fundamentally different to the requirement to plead " material facts ": H 1976 Nominees Pty Ltd v Galli [1979] FCA 74 ; (1979) 30 ALR 181 at 186 to 187; Sides Engineering Pty Ltd v Energetech Australia Pty Ltd [2005] FCA 1672 at [6] to [7]. There is no requirement that a Respondent plead to a matter set forth in " Particulars ". To endorse at the outset a course whereby the issues are not clearly joined as between the protagonists is not a course which should be encouraged.


case_title: Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2006] FCAFC 116 , 154 FCR 425


case_title: McGrath v Australian Naturalcare Products Pty Ltd [2008] FCAFC 2 , 165 FCR 230


case_title: Merpro Montassa Ltd v Conoco Speciality Productions Inc [1991] FCA 70 ; (1991) 28 FCR 387


case_title: Sides Engineering Pty Ltd v Energetech Australia Pty Ltd [2005] FCA 1672


case_title: Skiwing Pty Ltd t/as Café Tiffany's v Trust Co of Australia Ltd (Stockland Property Management Ltd) [2009] FCA 347 , 255 ALR 339


case_title: Trade Practices Commission v The Gillette Company (No 1) [1993] FCA 496 ; (1993) 45 FCR 366


case_title: West v TWG Services Ltd [2009] FCA 1052


case_title: Western Australia v Vetter Trittler Pty Ltd (In liq) (Receiver and Manager Appointed) (1991) 30 FCR 102


case_title: WSGAL Pty Ltd v Trade Practices Commission [1992] FCA 510 ; (1992) 39 FCR 472


case_text: When these grounds are considered, it is apparent that pro bono counsel for Mr Boyes framed them as if this were an application for judicial review, doubtless because he was aware that an appeal under s 44 of the AAT Act was incompetent: see ss 474 and 483 of the Act . On judicial review, the Court cannot set aside the decision of the Tribunal except for jurisdictional error: see Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476 at 506-508 and 511 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; and Epenisa v Minister for Immigration and Multicultural Affairs [2007] FCA 80 at [4] - [12] per Besanko J.


case_title: Epenisa v Minister for Immigration and Multicultural Affairs [2007] FCA 80


case_text: On this occasion, I shall not summarise the parties' submissions. These submissions will appear sufficiently in the following discussion. It suffices to say that essentially Mr Boyes' case was that the Tribunal had no regard to relevant considerations, relied on irrelevant considerations, and asked itself the wrong question. Referring to Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 per McHugh, Gummow and Hayne JJ at 351, and Lu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 340 ; (2004) 141 FCR 346 per Black CJ at 360, counsel for Mr Boyes submitted that the Tribunal's decision was vitiated by jurisdictional error and that the applicant was entitled to relief. In the alternative, counsel contended that there had been a failure on the Tribunal's part to comply with s 499(2A) of the Act . Referring to Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at 376-377 and 388-390 per McHugh, Gummow, Kirby and Hayne JJ, counsel argued that failure to do what is compelled to be done by s 499(2A) invalidates anything done or purporting to be done under Direction 21.


case_title: Lu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 340 ; (2004) 141 FCR 346


case_title: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355


case_text: In the course of argument in relation to these grounds, counsel for Mr Boyes submitted that the Tribunal should have noted that Mr Boyes pleaded guilty to the charges he faced. Further, according to counsel, a "complete examination of the seriousness of the Applicant's conduct should also involve considering the possible maximum sentence available to the sentencing judge". The applicant also challenged the Tribunal's finding concerning the repugnance of the crime, on the basis that the fraud involved in Mr Boyes' offending was not the same kind of fraud as that referred to in par 2.7(b) of Direction 21. Additionally, so counsel submitted, the Tribunal misapplied certain observation of the Full Court of this Court in Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197 ; (1999) 91 FCR 234 (" SRT "). The Tribunal failed to place the remarks of the sentencing judge in proper context and treat them as the law required. 27 In SRT , a Full Court held that it was not open to the Tribunal, in such a case as this, to impugn either the sentence or the essential facts found by the sentencing judge in sentencing: see SRT at 244 per Branson, Lindgren and Emmett JJ; also Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354 at 358 per Fisher and Lockhart JJ. It was to be borne in mind, however, that the Tribunal considered matters at a time different from the sentencing judge and that the Tribunal may be required to give consideration to the fact that some relevant circumstances had changed between the sentencing and the Tribunal's consideration of the matter. Moreover, so the Court said in SRT at 243, "accepting the findings of the sentencing judge does not prevent the Tribunal from distinguishing between those findings in terms of weight". 31 There is nothing in the Tribunal's reasons to support the submission that it misapplied SRT , and misused the sentencing judges' findings and observations in reaching its decision. Further, I would not infer from the Tribunal's reasons that the Tribunal did not take into account the fact that Mr Boyes had entered a guilty plea in the County Court. Certainly, the fact was specifically referred to in the Tribunal's reasons for decision. In this circumstance, it is unnecessary to decide whether the Tribunal was bound to consider the fact that Mr Boyes had pleaded guilty in the earlier criminal proceeding, although I doubt that it was. The consideration of this factor is not mandated by the Act alone and not mandated, directly at least, by the combination of s 499(2A) and Direction 21. There is, moreover, no basis in the Act , even when read with Direction 21, to support the proposition that, in considering the seriousness of Mr Boyes' conduct for the purpose of determining whether to cancel his visa, the Tribunal was bound to consider the maximum sentence that Mr Boyes' offences might have attracted under the criminal law. 32 There is no jurisdictional error shown in grounds (a), (b) or (c). (d) The decision of the Tribunal should be set aside as it misapplied paragraph 2.7(b) of Direction No 21 when it referred to but apparently failed to give due regard to "the repugnance of the crime", thereby failing to consider relevant material or considering irrelevant material. 33 Under this ground, counsel for Mr Boyes submitted that the Tribunal erred in likening the crimes committed by Mr Boyes to the crimes referred to in par 2.7(b) of Direction 21. I reject this submission for the reasons set out at [28]-[29] above. (e) The decision of the Tribunal should be set aside as it failed to exercise its discretion or failed to consider relevant material when it purported to consider the likelihood that the applicant's conduct may be repeated by merely repeating the words contained in part of paragraph 2.10 of Direction No 21 without apparently making its own findings. 39 Direction 21 also provides that "the extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may be reasonably expected to make" are relevant to the assessment to be made under par 2.10. Under this ground, the applicant contended that the Tribunal failed to consider the prospects of further rehabilitation and the positive contribution that Mr Boyes may reasonably be expected to make, as par 2.10 of Direction 21 required. Had the Tribunal done so, it would have acknowledged the effect of the passage of time. The applicant argued that the Tribunal misapplied SRT when it did not refer to the passage of time. 40 Counsel for Mr Boyes also submitted that the Tribunal erred when it combined consideration of rehabilitation with consideration of remorse, which were two different things. Counsel added that "the Tribunal went too far when it allowed those explanations by the self-represented represented applicant to colour its consideration of these requirements under the direction". 41 As already noted, in SRT , the Full Court noted that the Tribunal considered matters at a time different from the sentencing judge and that the Tribunal may be required to give consideration to the fact that some relevant circumstances had changed between the sentencing and the Tribunal's consideration of the matter. 42 In the present case, the Tribunal did not limit its consideration of rehabilitation prospects and risk of recidivism to the sentencing remarks of Judge Wood in the County Court. On the contrary, the Tribunal made a comprehensive review of the curial material in its possession and the evidence of Mr Boyes' rehabilitation. It referred to this latter evidence in some detail and noted that it was to Mr Boyes' credit. The Tribunal plainly took account of the matters relevant to the passage of time between sentencing and its decision-making, when it said that it was prepared to view favourably his undertakings to achieve qualifications and personal skills and that it gave some weight to the favourable comments of others about him. 43 Clearly enough, the Tribunal considered the prospects of rehabilitation and the risk of recidivism. In considering the broad question of whether the offending conduct might be repeated, it was open to the Tribunal to consider Mr Boyes' evidence about his attitude to his offending and his understanding of why it was wrong, more particularly as Mr Boyes had apparently made an assertion to the Tribunal in this regard. 44 Ground 4(g) discloses no error. (h) The decision of the Tribunal should be set aside as it erred when it took account of an irrelevant consideration when purporting to apply paragraph 2.11 of Direction No 21 by hypothesising on the effect on non-citizens of not cancelling the applicant's visa. 45 Paragraph 2.11 of Direction 2.11 relevantly states that "[g]eneral deterrence aims to deter other people from committing the same or a similar offence". It also states that the "general deterrence factor" may be relevant in a number of ways, indicating what these ways may be.


case_text: In SRT , a Full Court held that it was not open to the Tribunal, in such a case as this, to impugn either the sentence or the essential facts found by the sentencing judge in sentencing: see SRT at 244 per Branson, Lindgren and Emmett JJ; also Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354 at 358 per Fisher and Lockhart JJ. It was to be borne in mind, however, that the Tribunal considered matters at a time different from the sentencing judge and that the Tribunal may be required to give consideration to the fact that some relevant circumstances had changed between the sentencing and the Tribunal's consideration of the matter. Moreover, so the Court said in SRT at 243, "accepting the findings of the sentencing judge does not prevent the Tribunal from distinguishing between those findings in terms of weight".


case_text: A significant part of the case that Mr Boyes put to the Tribunal turned on his assertion that he wanted to re-establish his relationship with the mother of his son. It was in this context that the absence of evidence from the mother concerned the Tribunal and led it to adjourn the hearing in order that she might make a statement. When no statement from her was forthcoming, the Tribunal did not have an obligation to make further inquiries concerning the child. There was nothing to create such an obligation: compare Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151 ; (2004) 139 FCR 292 at 314 per Tamberlin, Sackville and Stone JJ; and Taylor v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 208 at [19] per Marshall, Mansfield and Siopis JJ. Instead it was bound to decide the case on the evidence and other material before it. Upon this basis, it made the specific findings that the child's best interests would be achieved if he remained in Australia with his mother and that his interests would not necessarily be affected if Mr Boyes' visa were cancelled. The applicant has not made out jurisdictional error under ground (i).


case_title: Taylor v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 208


case_text: This case is distinguishable from Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568 ; (2001) 107 FCR 133, which was relied on by the applicant. In Mr Boyes' case, in contrast to Wan , the Tribunal clearly stated what the best interests of the child indicated that it should decide. The Tribunal in Wan limited its consideration to how the children's interests would be affected by a decision to refuse to grant their father a visa. That is not this case. Further, in Wan , in contrast to this case, the Tribunal did not treat the best interests of the children as a primary consideration. 56 Ground (i) discloses no error. 57 Counsel for Mr Boyes did not address the other grounds stated in the initiating documents and it is unnecessary to refer to them here. None of them disclosed a tenable ground upon which a finding of jurisdictional error might be made. Nor could they disclose contravention of s 499(2A).


case_text: In short, the submissions of Asciano on ss 38(3)(g) and 53 (3) are not without force. However, that force, along with the vitality of Dowsett J's reasons in Queensland Rail , is diminished for at least two reasons. First, Dowsett J reached his view based in part on the premise that the rebate scheme found in s 164(1)(ab) of the Customs Act and s 78A(1)(ab) of the Excise Act was beneficial legislation and should be given a broad construction: Queensland Rail at [39]. Asciano argues that the same premise should be adopted in this case - the Court should take a commonsense and commercial approach in order to encourage the activities to which the Act applies. However, the Full Court of this Court recently rejected that premise in Commissioner of Taxation v Ostwald Bros Civil Pty Ltd (2008) 167 FCR 588 , relying on the legislative history for the proposition that the Act is to be construed narrowly in order to balance the beneficial purpose of encouraging the use of cleaner fuels with the important government interest of protecting the revenue: at [33]-[37]. 23 Thus an argument about ambiguity has force only when backed by a presumption of construction that such ambiguity should be resolved in a particular way. For example, if the Act were considered beneficial legislation to be broadly construed, as the pre-2003 legislation was when Dowsett J handed down Queensland Rail , I might be inclined to favour Asciano's view. However, I am now bound to follow the Full Court's decision in Ostwald that the Act is to be construed narrowly, which creates a presumption in favour of the Commissioner. 24 That is to say, if it be "the intent of the diesel fuel rebate scheme to pay rebate only on those activities that are explicitly mentioned in the legislation and not to activities that are said to be integral to, associated with or connected with these activities," ( Ostwald at [34] quoting the legislative history) then I consider it is for Parliament, not this Court, to broaden the scope of the scheme. To the extent there is any doubt as to whether off-rail activities are covered, that doubt must be judicially resolved in the Commissioner's favour because on any view it cannot be said that off-rail activities are explicitly included by ss 38 and 53 of the Act . 25 Asciano also raises a policy argument that the result (that whether a purchase for a particular use is credit-eligible turns on whether the use occurs on or off-rail) is anomalous. For example, the evidence disclosed that a train's brakes may be safety-tested by using special on-rail equipment or by using off-rail equipment (in the form of a compressor) next to the track. Asciano submits that to say that diesel fuel purchases in the first case, but not the second, would be credit-eligible is bizarre because the same activity in both cases is integral and incidental to the carrying on of Asciano's rail transport business. 34 The second point is that para [1.41] is consistent with the broader statement in the Explanatory Memorandum (at 3) that the Act was designed to make minor amendments to the existing schemes "to clarify the Government's position on certain activities." It is also consistent with the view, now endorsed by the Full Court in Ostwald , that the benefits conferred by the Act should be construed narrowly.


case_text: In Kelly v The Queen [2004] HCA 12 ; (2004) 218 CLR 216 , 253, McHugh J said that "[n]othing is more likely to defeat the intention of the legislature than to give a definition a narrow, literal meaning and then use that meaning to negate the evident policy or purpose of a substantive enactment." Indeed, it is now well established that there is no need for ambiguity in the statutory text before resort is had to purpose, context, and the legislative history: White v Designated Manager of IP Australia (No. 2) [2008] FCA 816 at [18] - [20] .


case_text: As in any statutory interpretation case, one begins with the plain language before moving to considerations of context, purpose and legislative history: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 29 ; (1998) 194 CLR 355. 7 In favour of the Commissioner's construction there are two points. First, there is the parallelism of the two "for" subclauses. The most natural reading of a series of subclauses each beginning with the same word is that each is co-equal and each attaches to the full predicate preceding the first item in the list. An alternative way of putting the point (and this is the second point on the Commissioner's side) is to realise that the subsequent repetition or omission, as the case may be, of the preposition "for" is a matter of style and emphasis that does not change the meaning. 8 This is the case with s 38(5). The second use of "for" in the opening words of the provision was not intended to set up an independent subclause not limited or modified by "in or on a rail vehicle". That is made clear by the absence of the conjunction "or" between heating and lighting and the presence instead of a comma. If the "for air-conditioning, heating, lighting" subclause was really independent of the "for any purpose" subclause, it would read: "Use in equipment in or on a rail vehicle for air-conditioning, heating [ or ] lighting or for any purpose incidental to using the rail vehicle." To put it another way, the sentence would stand on its own even if everything from "or for any purpose" through to the end of sub-clause (c) were deleted. Here, however, the lack of the additional "or" demonstrates that "any purpose," rather than being the first item in a new list untethered to the "air-conditioning, heating, lighting" list, is in fact item number four in a list of objects of the first "for" and the repetition of "for" is for rhetorical purposes only. Moreover, in modern legislative drafting, a comma is generally not used to separate the penultimate and ultimate items in a list: see e.g. s 33 of the Act (containing no commas between the penultimate and ultimate items in any of the three lists). Thus, the presence of the comma between heating and lighting indicates that heating is not the penultimate item and that in fact lighting, which is not followed by a comma, is the penultimate item and "any purpose" is the ultimate item. 9 In other words, the language of s 38(5) is to be read as follows: "Use in equipment in or on a rail vehicle for [(1)] air-conditioning, [(2)] heating, [(3)] lighting or for [(4)] any purpose incidental to using the rail vehicle[.]" The contrary reading advanced by Asciano - "Use in equipment [A] in or on a rail vehicle for [(1)] air-conditioning, [(2)] heating, [(3)] lighting or [B] for any purpose incidental to using the rail vehicle" - must be rejected. Once it is accepted that there is really only one preposition "for" - the first one - followed by a list of four objects, the whole of Asciano's argument falls away. As noted earlier, Asciano accepts that the first three items - air-conditioning, heating and lighting - are constrained by the phrase "in or on a rail vehicle"; if "any purpose" is merely the fourth item in that same list, it follows that it must also be so constrained. 10 For those reasons, I do not consider the language of s 38(5) to be ambiguous when considered on its own. 13 Asciano relies on both the broader context of s 38 as well as that of s 53 itself in support of its construction. As to s 38, Asciano submits that if the Commissioner's reading of s 38(5) is adopted, then s 38(3)(g) will become superfluous, contrary to the well-known maxim of statutory construction that every effort should be made to give all the words of a statute some work to do: Project Blue Sky , 194 CLR at 382. This argument depends on the premise that "in connection with" in s 38(3)(g) and "incidental to" in s 38(5) have the effectively the same meaning. When pressed, the Commissioner was not able to identify any relevant difference in meaning; however, as will be seen below, I do not consider it necessary to make a definitive finding in that regard. 14 With respect to s 53, Asciano focuses on the parenthetical clause "(otherwise than for the purpose of propelling a road vehicle on a public road)," arguing that if all purchases for off-rail activities were already excluded by the s 38 definitions, there would be no need for the exclusion in the substantive provision. Asciano reinforces the point by noting that there is no equivalent parenthetical exception for "use in marine transport" (see s 53(3)), while the parenthetical exceptions for use in mining operations and use in primary production carve out "any vehicle" in the former but only "road vehicles" in the latter. These contrasts are emphasised to make the point that Parliament must have carefully considered and tailored the exceptions in each case. 19 It may well be that the introduction of s 38 has in fact made the parenthetical language in s 53(3) superfluous. Asciano submits that to the extent that there is any conflict between the operative s 53 and the definitional s 38 , the substantive provision must prevail: Project Blue Sky , 194 CLR at 382. That proposition is of course true, but it does not assist in resolving the present case because there is no conflict. Section 53(3) says only that fuel purchases for use in propelling a road vehicle along a public road are not eligible for credits. As to whether any other purchases for off-rail use are or are not eligible, s 53 is simply silent. In other words, this is not a situation where the substantive provision says X and the definition says "not X"; rather, this is a case where the substantive provision says "not X" (i.e. propelling a road vehicle along a public road) and the definition says "not X" and "not Y" (i.e. other off-rail activities).


case_text: The Commissioner attempts to meet this concern by speculating that the legislature may have been concerned in the rail context with hybrid vehicles such as "hi-rails," which are capable of travelling both on roads and on rail: see Queensland Rail v Commissioner of Taxation [2006] FCA 816 ; (2006) 153 FCR 524 at [19] , [23]-[24] for a description of these vehicles. Quite correctly, counsel for Asciano noted in oral argument that this speculation, even if correct, did not meet the point, because s 38 would already cover purchases for hi-rail use - when the fuel is purchased for on-rail use, it would be eligible for credit, but when the fuel is purchased for use in off-rail activities, whether on public roads or otherwise, it would be ineligible. Moreover, as Asciano submitted, the argument that the parenthetical language was included by inadvertence or out of an abundance of caution in the predecessor to s 53, (s 164(1)(ab) of the Customs Act 1901 (Cth) and s 78A(1)(ab) of the Excise Act 1901 (Cth)), was rejected by Dowsett J in Queensland Rail [2006] FCA 816 ; 153 FCR 524 at [40] for the reasons identified by Asciano above. 16 In short, the submissions of Asciano on ss 38(3)(g) and 53 (3) are not without force. However, that force, along with the vitality of Dowsett J's reasons in Queensland Rail , is diminished for at least two reasons. First, Dowsett J reached his view based in part on the premise that the rebate scheme found in s 164(1)(ab) of the Customs Act and s 78A(1)(ab) of the Excise Act was beneficial legislation and should be given a broad construction: Queensland Rail at [39]. Asciano argues that the same premise should be adopted in this case - the Court should take a commonsense and commercial approach in order to encourage the activities to which the Act applies. However, the Full Court of this Court recently rejected that premise in Commissioner of Taxation v Ostwald Bros Civil Pty Ltd (2008) 167 FCR 588 , relying on the legislative history for the proposition that the Act is to be construed narrowly in order to balance the beneficial purpose of encouraging the use of cleaner fuels with the important government interest of protecting the revenue: at [33]-[37]. 17 Secondly, at the time of the decision in Queensland Rail , the relevant language in the substantive provision, "use in rail transport," was not defined in the Customs Act . Dowsett J was thus led to consult the dictionary and a variety of other sources before reaching the view (at [44]) that: [T]he words "in rail transport" mean 'in a system or means of transportation or conveyance of people or goods by rail'. Such a system must inevitably involve loading and unloading activities and maintenance activities. The use of diesel fuel in the course of such activities is necessarily "in" that system, regardless of whether such use occurs on- or off-rail. 18 Given such an expansive definition of "in rail transport" (one which, I should add, I might have been inclined to embrace myself in the absence of any legislative guidance), it is not surprising that his Honour concluded that off-rail activities fell within the credit scheme. However, the Court now has the benefit of s 38 of the Act in which it is made clear that, however plausible Dowsett J's judicial definition of "in rail transport" as a "system" might be in the abstract, the legislature has chosen to define the term more narrowly as a subset of that whole system. As can be seen, the common thread in each of the s 38 subparagraphs is the limitation or linking of "in or on a rail vehicle" to "in rail transport". 19 It may well be that the introduction of s 38 has in fact made the parenthetical language in s 53(3) superfluous. Asciano submits that to the extent that there is any conflict between the operative s 53 and the definitional s 38 , the substantive provision must prevail: Project Blue Sky , 194 CLR at 382. That proposition is of course true, but it does not assist in resolving the present case because there is no conflict. Section 53(3) says only that fuel purchases for use in propelling a road vehicle along a public road are not eligible for credits. As to whether any other purchases for off-rail use are or are not eligible, s 53 is simply silent. In other words, this is not a situation where the substantive provision says X and the definition says "not X"; rather, this is a case where the substantive provision says "not X" (i.e. propelling a road vehicle along a public road) and the definition says "not X" and "not Y" (i.e. other off-rail activities). 23 Thus an argument about ambiguity has force only when backed by a presumption of construction that such ambiguity should be resolved in a particular way. For example, if the Act were considered beneficial legislation to be broadly construed, as the pre-2003 legislation was when Dowsett J handed down Queensland Rail , I might be inclined to favour Asciano's view. However, I am now bound to follow the Full Court's decision in Ostwald that the Act is to be construed narrowly, which creates a presumption in favour of the Commissioner. 29 Finally, much was made by both sides of the Explanatory Memorandum to the Energy Grants (Credits) Scheme Bill 2003 (Cth). At times, the parties made efforts to parse the language of the Explanatory Memorandum as if it were itself a statutory instrument. It suffices to say for present purposes that I do not think so much can be made of the Explanatory Memorandum. At a broader level, the point made by Asciano was that the Explanatory Memorandum demonstrated Parliament's intent to maintain the same level of benefits in the Act as in the pre-2003 credit scheme. I accept that premise. However, the argument then proceeded that because Dowsett J found in Queensland Rail that purchases for off-rail use were credit-eligible prior to 2003, it must be the case that Parliament intended for those benefits to be preserved in the Act . 30 The flaw in this argument is that Queensland Rail was not handed down until 2006. The relevant pre-2003 provisions themselves make no explicit mention of whether purchases for certain off-rail uses are eligible for credit. Thus the knowledge that such benefits were deemed to be available under the old scheme cannot be imputed to Parliament in 2003. (The situation might of course be different had the decision in Queensland Rail been issued prior to passage of the Act , in which case it would be presumed that Parliament had taken that decision into account when passing the new legislation: Pearce DC and Geddes RS, Statutory Interpretation in Australia (5 th ed 2001) at para [3.39] and [3.40].) Thus it is perfectly consistent, notwithstanding Queensland Rail , to impute to Parliament the view that purchases for off-rail use were not eligible for credit prior to 2003 and that the Act would indeed maintain the same level of benefits in that purchases for off-rail use would continue to be ineligible. 31 The Commissioner adopted this latter view, submitting that Parliament was likely to be aware that such credits for off-rail activities were not available when drafting the Act . In June 2000, the Commissioner issued Excise Bulletin EB 2000/3, which stated that benefits were not available for off-rail uses of the kind now claimed by Asciano: Queensland Rail at [14]. The Explanatory Memorandum to the Act states that "[t]he [Commissioner] has released administrative guidelines on which activities are eligible for a rebate" under the marine and rail categories, but that there is no further clarification in the Customs Act and continued "uncertainty surrounding which activities are actually eligible": Explanatory Memorandum at [1.39]-[1.40]. It seems tolerably clear that the Explanatory Memorandum was referring to Excise Bulletin EB 2000/3. 32 The Explanatory Memorandum then goes on to state (at [1.41]): In order to remove this uncertainty and align the current administration of the marine transport and rail transport categories with the legislation, the new expressions 'use in marine transport' and 'use in rail transport' have been introduced into the [Act], so as to set out clearly in the legislation which activities in these categories will qualify for the off-road credit. 33 Obviously, Parliament's attempts to achieve clarity in this regard cannot be termed an unqualified success. Two points do, however, emerge from these paragraphs. The first is that Parliament intended to align the regimes for marine and rail transport. It was conceded by Asciano that, with respect to marine transport, the location of the equipment is relevant in all cases - if the equipment is not located on a vessel, purchases for use in that equipment are not credit-eligible. In other words, para [1.41] supports the contention that given that Parliament intended to harmonise the marine and rail transport credit regimes and given that credits are not available under the marine transport regime for off-vessel activities, the better view is that credits are not (unless explicitly stated otherwise) available under the rail transport regime for off-rail activities. 35 The definitions now found in s 38 of the Act must be given effect according to their terms. Those definitions were not in the rebate scheme legislation under consideration in Queensland Rail and it follows that the decision in Queensland Rail does not govern the present case. The purchase of off-road diesel fuel for use in equipment not located in or on a rail vehicle is not entitled to a credit under s 53 of the Act even if it is used for a purpose incidental to the use of a vehicle in rail transport. 36 Accordingly, I will dismiss the application with costs. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gordon. Associate: Dated: 16 September 2008 Counsel for the Applicant: Mr J de Wijn QC and Mr D McInerney Solicitor for the Applicant: PricewaterhouseCoopers Legal Counsel for the Respondent: Mr N Williams SC and Mr S Lloyd Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 8 September 2008 Date of Judgment: 16 September 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1401.html


case_text: In Kelly v The Queen [2004] HCA 12 ; (2004) 218 CLR 216 , 253, McHugh J said that "[n]othing is more likely to defeat the intention of the legislature than to give a definition a narrow, literal meaning and then use that meaning to negate the evident policy or purpose of a substantive enactment." Indeed, it is now well established that there is no need for ambiguity in the statutory text before resort is had to purpose, context, and the legislative history: White v Designated Manager of IP Australia (No. 2) [2008] FCA 816 at [18] - [20] . 26 The Commissioner's response to this argument was to acknowledge the differing result in each case but note that the legislature had to draw a line somewhere and the line might as well be based on location, which creates a bright-line rule that is easy to administer. In effect, the parties entered into the age-old debate of flexible standards versus bright-line rules. I recently dealt with this debate in White v Designated Manager of IP Australia (No. 2) [2008] FCA 816 at [44] . I do not propose to repeat the discussion in White as to the virtues and vices of each. Instead, I note two points particularly relevant to the choice in this case. 27 First, the imposition of bright-line rules is particularly apt and commonplace in the realm of taxation. Just as it would impose a crushing administrative burden to vet every 17 to 19 year old to see if they were mature enough to vote, the Commissioner would not be able to function effectively if faced with requests for rebates and credits that required application of fuzzy standards. 28 Secondly, the result in this case is not so anomalous or absurd as to require or invite judicial redrafting of the legislation: White at [18]. In fact, the legislature was well aware of the anomalies created by the imposition of such a rule but accepted them nevertheless. In the March 2003 Senate Economics Legislation Committee's report on the provisions of the Energy Grants (Credits) Scheme Bill 2003 (Cth), a submission made by Brambles Industrial Services was addressed. Brambles raised the same point now made by Asciano (at (3.27]) that "the Bill would introduced [sic] an anomalous situation [that] 'an activity is eligible or ineligible for an off-road credit based on the location of the equipment performing the function as well as the actual function itself'." The Committee's response (at [3.29]) was that "in any legislation under which eligibility to entitlement depends upon classification, there will inevitably be definitional issues at the borderline." In effect, the Committee's view was that a line must be drawn somewhere and it might as well be the location of the equipment, which creates a simple and easily administrable rule.


case_outcome: related

case_text: On 16 April last, declarations and orders were made in this proceeding following delivery of reasons for judgment on 11 April 2008 ( A & L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2008] FCA 466). Those reasons dealt with relief in relation to liability found earlier ( A & L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2007] FCA 1047 ; (2007) 165 IR 94). The question of costs was reserved. The orders were varied by consent on 29 May 2008. Written submissions have been received as to costs. These reasons deal with that issue and assume familiarity with the previous judgments and orders.


case_title: A & L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2007] FCA 1047 ; (2007) 165 IR 94


case_text: There is another complication. Each applicant had discrete claims for relief. The claims by the first applicant were claims for damages. The second applicant brought claims for penalties for breach of the Workplace Relations Act . Neither applicant had any concrete interest in the claims of the other. The respondents objected to joinder. Joinder was permitted ( A & L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2005] FCA 1658 ; (2005) 226 ALR 247 at [6] [12]). It was noted that the joinder of the causes of action complicated the long standing costs regime reflected in s 347 of the Workplace Relations Act . In the course of dealing with the question of security for costs which followed the permitting of joinder, the following was said ( A & L Silvestri Pty Ltd [2005] FCA 1658 ; 226 ALR 247 at [13] ): "In my opinion, the joinder of applicants with the one set of solicitors and counsel has the consequence that Hadgkiss will be responsible for any order for costs which is made arising out of the proceedings, even if made in the Silvestri proceeding. The joinder is convenient for the applicants and liability for costs is one of the prices to be paid for that." That passage, of course, relates to the liability for costs rather than the entitlement to costs.


case_title: Bahonko v Sterjov [2008] FCAFC 30

case_text: The first applicant seeks an order for costs of the claims for damages upon which it succeeded pursuant to s 82 of the Trade Practices Act 1974 (Cth) against the third to fifth respondents for acting in contravention of s 45D of the Trade Practices Act and the first and second respondents for being knowingly concerned in the contravention of s 45D. The respondents submit that such an order would be inconsistent with the decision of the Full Court in Goldman Sachs JBWere Services Pty Ltd v Nikolich [2007] FCAFC 120 ; (2007) 163 FCR 62 because of the effect of s 347 of the Workplace Relations Act 1996 (Cth) as it was applicable to this case (now s 824) or at least that there is a necessity to "enter the murky waters" of an inconsistency between that decision and Bahonko v Sterjov [2008] FCAFC 30. I do not agree. Bahonko [2008] FCAFC 30 establishes that a discrete federal claim is not affected by the restrictions on the award of costs in the Workplace Relations Act . This was a discrete federal claim (cf Thompson v Big Bert Pty Ltd [2008] FCA 792). However, full operation must be given to the effect of s 347 by ensuring that costs in relation to the discrete federal claim would only be awarded where those costs do not overlap with costs incurred in relation to the Workplace Relations Act claim.


case_text: The first applicant seeks an order for costs of the claims for damages upon which it succeeded pursuant to s 82 of the Trade Practices Act 1974 (Cth) against the third to fifth respondents for acting in contravention of s 45D of the Trade Practices Act and the first and second respondents for being knowingly concerned in the contravention of s 45D. The respondents submit that such an order would be inconsistent with the decision of the Full Court in Goldman Sachs JBWere Services Pty Ltd v Nikolich [2007] FCAFC 120 ; (2007) 163 FCR 62 because of the effect of s 347 of the Workplace Relations Act 1996 (Cth) as it was applicable to this case (now s 824) or at least that there is a necessity to "enter the murky waters" of an inconsistency between that decision and Bahonko v Sterjov [2008] FCAFC 30. I do not agree. Bahonko [2008] FCAFC 30 establishes that a discrete federal claim is not affected by the restrictions on the award of costs in the Workplace Relations Act . This was a discrete federal claim (cf Thompson v Big Bert Pty Ltd [2008] FCA 792). However, full operation must be given to the effect of s 347 by ensuring that costs in relation to the discrete federal claim would only be awarded where those costs do not overlap with costs incurred in relation to the Workplace Relations Act claim. 3 There is another complication. The s 45D claim also overlapped with a claim in tort for inducing breach of contract. However, that claim is properly seen as associated with, or accrued in relation to, the Trade Practices Act claim rather than the Workplace Relations Act claim. Thus, Goldman Sachs JBWere Services Pty Ltd v Nikolich [2007] FCAFC 120 ; 163 FCR 62 is not applicable to it.