case_text: review of some of the decided cases (including cases decided under similar provisions of the Life Insurance Act 1995 (Cth)) suggests that, in general terms, the Court has treated the critical factor governing the exercise of its discretion as being whether "policyholders" will be materially detrimentally affected by the implementation of the scheme: Re Insurance Australia Ltd at [76]; In the matter of GIO Personal Investment Services Ltd and AMP Life Ltd [2000] FCA 1871 at [27] .


case_outcome: referred to

case_text: Court's discretion to confirm a scheme for the transfer of an insurance business is conferred by s 17F. In In the matter of Reward Insurance Ltd [2004] FCA 151 , Heerey J observed (at [3]) that the discretion was a general one and that the Act did not specify any criteria that were to be considered. His Honour described as "a prime consideration" the nature of the actual and potential claims to which the transferor insurer is subject and the financial viability of the transferee insurer ( ibid ). In Re MDU Australian Insurance Co Pty Ltd [2008] FCA 490 , Emmett J identified (at [7]) "[t]he critical consideration" as being whether the affected policyholders would be detrimentally affected. His Honour also said (at [9]) that the interests of the existing policyholders of the transferee insurer must be considered. Earlier, in Mercantile & General Reinsurance Company of Australia Ltd [2004] FCA 1773 , his Honour had raised (at [23]) the question of the desirability of legislative amendment to make consideration of the interests of the latter mandatory (but see [44] below).


case_outcome: discussed

case_text: Court's discretion to confirm a scheme for the transfer of an insurance business is conferred by s 17F. In In the matter of Reward Insurance Ltd [2004] FCA 151 , Heerey J observed (at [3]) that the discretion was a general one and that the Act did not specify any criteria that were to be considered. His Honour described as "a prime consideration" the nature of the actual and potential claims to which the transferor insurer is subject and the financial viability of the transferee insurer ( ibid ). In Re MDU Australian Insurance Co Pty Ltd [2008] FCA 490 , Emmett J identified (at [7]) "[t]he critical consideration" as being whether the affected policyholders would be detrimentally affected. His Honour also said (at [9]) that the interests of the existing policyholders of the transferee insurer must be considered. Earlier, in Mercantile & General Reinsurance Company of Australia Ltd [2004] FCA 1773 , his Honour had raised (at [23]) the question of the desirability of legislative amendment to make consideration of the interests of the latter mandatory (but see [44] below). An intention that might suggest itself is that of making mandatory a consideration that this Court was already at liberty to take into account and has taken into account, namely, the interests of non-transferred (remaining) Australian branch policyholders of the transferor insurer, and existing (continuing) Australian branch policyholders of the transferee insurer, neither of which categories would fall within s 17C's concept of "affected policyholder": see Re Insurance Australia Ltd, above at [25], [70], [75], [76]; Mercantile & General Reinsurance Company of Australia Ltd , above, at [23]; PMI Indemnity Ltd [2005] FCA 1842 at [25] ff; Re Calliden Group Ltd [2007] FCA 2019 at [90] - [91] . Importantly, in no case has the Court had regard to the interests of policyholders of an overseas branch or discussed the desirability of their being considered. In Mercantile & General Reinsurance Company of Australia Ltd, above, for example, Emmett J referred to the effect of a scheme on the Australian branch policyholders of the transferee foreign general insurer, and not the policyholders of its overseas branches. His Honour also said (at [3]) that the non-Australian assets and liabilities of the transferee foreign general insurer could be ignored. Justice Emmett's comment relating to the desirability of legislative amendment to which I referred at [34] above is to be understood against the background of the fact that his Honour took into account the interests of only the Australian branch policyholders of the transferee foreign general insurer.


case_outcome: cited

case_title: PMI Indemnity Ltd [2005] FCA 1842

case_text: intention that might suggest itself is that of making mandatory a consideration that this Court was already at liberty to take into account and has taken into account, namely, the interests of non-transferred (remaining) Australian branch policyholders of the transferor insurer, and existing (continuing) Australian branch policyholders of the transferee insurer, neither of which categories would fall within s 17C's concept of "affected policyholder": see Re Insurance Australia Ltd, above at [25], [70], [75], [76]; Mercantile & General Reinsurance Company of Australia Ltd , above, at [23]; PMI Indemnity Ltd [2005] FCA 1842 at [25] ff; Re Calliden Group Ltd [2007] FCA 2019 at [90] - [91] . Importantly, in no case has the Court had regard to the interests of policyholders of an overseas branch or discussed the desirability of their being considered. In Mercantile & General Reinsurance Company of Australia Ltd, above, for example, Emmett J referred to the effect of a scheme on the Australian branch policyholders of the transferee foreign general insurer, and not the policyholders of its overseas branches. His Honour also said (at [3]) that the non-Australian assets and liabilities of the transferee foreign general insurer could be ignored. Justice Emmett's comment relating to the desirability of legislative amendment to which I referred at [34] above is to be understood against the background of the fact that his Honour took into account the interests of only the Australian branch policyholders of the transferee foreign general insurer.


case_text: required to be taken prior to the "making" of an application need only be taken prior to the time at which the Court is moved for the order of confirmation of the scheme, not prior to the filing of the application in the Court registry: Re Armstrong Jones Life Assurance Limited (1997) 74 FCR 160 at 163, per Emmett J; Re Royal & Sun Alliance Life Assurance Ltd [2000] FCA 1259 ; (2000) 104 FCR 37 at 39, per Katz J; Re Insurance Australia Ltd [2004] FCA 524 ; (2004) 139 FCR 450 ( Re Insurance Australia Ltd ) at [30] [37], per Lindgren J.


case_title: Re Calliden Group Ltd [2007] FCA 2019


case_text: required to be taken prior to the "making" of an application need only be taken prior to the time at which the Court is moved for the order of confirmation of the scheme, not prior to the filing of the application in the Court registry: Re Armstrong Jones Life Assurance Limited (1997) 74 FCR 160 at 163, per Emmett J; Re Royal & Sun Alliance Life Assurance Ltd [2000] FCA 1259 ; (2000) 104 FCR 37 at 39, per Katz J; Re Insurance Australia Ltd [2004] FCA 524 ; (2004) 139 FCR 450 ( Re Insurance Australia Ltd ) at [30] [37], per Lindgren J. A review of some of the decided cases (including cases decided under similar provisions of the Life Insurance Act 1995 (Cth)) suggests that, in general terms, the Court has treated the critical factor governing the exercise of its discretion as being whether "policyholders" will be materially detrimentally affected by the implementation of the scheme: Re Insurance Australia Ltd at [76]; In the matter of GIO Personal Investment Services Ltd and AMP Life Ltd [2000] FCA 1871 at [27] . The expression "affected policyholder" is defined and used in s 17C of the Act. That section is concerned with steps to be taken before the application for confirmation is made. In Re Insurance Australia Ltd , I held at [19]-[24] that an "affected policyholder" within the meaning of s 17C is a holder of a policy being transferred under the scheme. Accordingly, in the present case it is the policyholders of Westport who are "affected policyholders" for the purposes of s 17C of the Act. I also held, however, that this does not mean that the effect that the scheme will have on other policyholders is irrelevant to the exercise of the Court's discretion: Re Insurance Australia Ltd at [25]. SRIAU has no existing policyholders (see [22] above), but SRCAU does (see [20]-[21] above). An intention that might suggest itself is that of making mandatory a consideration that this Court was already at liberty to take into account and has taken into account, namely, the interests of non-transferred (remaining) Australian branch policyholders of the transferor insurer, and existing (continuing) Australian branch policyholders of the transferee insurer, neither of which categories would fall within s 17C's concept of "affected policyholder": see Re Insurance Australia Ltd, above at [25], [70], [75], [76]; Mercantile & General Reinsurance Company of Australia Ltd , above, at [23]; PMI Indemnity Ltd [2005] FCA 1842 at [25] ff; Re Calliden Group Ltd [2007] FCA 2019 at [90] - [91] . Importantly, in no case has the Court had regard to the interests of policyholders of an overseas branch or discussed the desirability of their being considered. In Mercantile & General Reinsurance Company of Australia Ltd, above, for example, Emmett J referred to the effect of a scheme on the Australian branch policyholders of the transferee foreign general insurer, and not the policyholders of its overseas branches. His Honour also said (at [3]) that the non-Australian assets and liabilities of the transferee foreign general insurer could be ignored. Justice Emmett's comment relating to the desirability of legislative amendment to which I referred at [34] above is to be understood against the background of the fact that his Honour took into account the interests of only the Australian branch policyholders of the transferee foreign general insurer.


case_title: Re MDU Australian Insurance Co Pty Ltd [2008] FCA 490


case_title: Re Royal & Sun Alliance Life Assurance Ltd [2000] FCA 1259 ; (2000) 104 FCR 37


case_text: order was quashed, and the Tribunal was directed to determine "the matter the subject of the decision according to law", by a consent order made by the Federal Magistrates Court on 29 January 2008. The order noted that the Minister acknowledged that the Tribunal had committed jurisdictional error by failing to ask itself the right question, namely whether the applicant's conscientious objection to performing military service could be regarded as a form of political opinion, or whether "conscientious objectors" could constitute a particular social group. The Minister's acknowledgment was based upon the decision of Gray J in Erduran v Minister for Immigration and Multicultural Affairs [2002] FCA 814 ; (2002) 122 FCR 150 at [28] , affirmed in the Full Court of this Court in VCAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 1.


case_title: VCAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 1


case_outcome: considered

case_text: applicant relies upon the decision of Lindsay FM in SZLQK v Minister for Immigration and Citizenship [2008] FMCA 633 ( SZLQK ), delivered on 23 May 2008. His Honour there determined that the scheme of the Act required that s 421 dealt only with the initial constitution of the Tribunal, that reconstitution of the Tribunal could not be effected by using s 421 of the Act, and that reconstitution of the Tribunal could occur only if s 422 or s 422A was available in the particular circumstances: see at [14]-[15]. His Honour thought that, otherwise, there would be no need for either of those provisions: see at [23]-[24]. He specifically indicated that cl 19 of the Principal Member's Direction issued on 9 August 2007 headed "Caseload and Constitution Policy" (which is in the same terms as cl 20 of the current direction) indicated a misapprehension on the part of the Principal Member that a remittal for reconsideration had the effect of requiring the constitution of a wholly new review: see at [33]. His Honour concluded that, in the circumstances of that case, s 422 was not available as a mechanism to reconstitute the Tribunal by the Principal Member (at [43]), and that the only means by which that could be done would be under s 422A. The Principal Member had not made the reconstitution pursuant to that section. Hence, there was error on the part of the Principal Member in appointing a different member to constitute the Tribunal. Nevertheless, his Honour concluded that the error on the part of the Principal Member was not a jurisdictional error going to the validity of the decision of the Tribunal. It was a procedural error, and so the challenge did not succeed. In NBMB v Minister for Immigration and Citizenship (2008) 100 ALD 118 ( NBMB ), delivered on 26 February 2008, Flick J reached a different conclusion. As it happened, his Honour's conclusion was not part of the ultimate reason for deciding the case. In the course of a challenge to a decision of the Tribunal, the applicant sought leave to amend the application to allege that the reconstitution of the Tribunal on the remittal of the review had been improper. His Honour refused leave to so amend the application, and in any event his Honour said that he would have resolved the point adversely to that applicant. In that case, as here, the Minister said that the reconstitution of the Tribunal following the quashing of its earlier decision was made under s 421 of the Act rather than s 422A of the Act (as contemplated by Lindsay FM in SZLQK ). His Honour noted that the justice of the case, when a decision of the Tribunal has been set aside, is generally that the Tribunal be reconstituted by a different member: see also Northern NSW FM Pty Limited v Australian Broadcasting Tribunal (1990) 26 FCR 39 at 43; Australian Trade Commission v Underwood Exports Pty Ltd (1997) 49 ALD 426 at 427. In NBMB , at [39]-[41], Flick J decided that there was no reason to impose any constraint upon the power conferred by s 421(2) in that circumstance. As he pointed out, it is a power that can be exercised from time to time: Acts Interpretation Act 1901 (Cth), s 33(1). The discretion to exercise that power, his Honour said, is to be exercised in the light of all the circumstances, including the order of the Federal Magistrates Court quashing the initial decision and what is recognised as "justice being seen to be done". His Honour also adverted to the possibility that the unavailability of a member for the purposes of s 422 may not simply be where the term of appointment has expired, or the member has died or become unable to carry out his duties, or has resigned. Unavailability might also arise, his Honour speculated at [41], where an order is made quashing the decision of the Tribunal as originally constituted. Otherwise, a member may remain "available" even though "justice in general is better seen to be done" if that member did not further participate in any re-hearing.


case_text: NBMB v Minister for Immigration and Citizenship (2008) 100 ALD 118 ( NBMB ), delivered on 26 February 2008, Flick J reached a different conclusion. As it happened, his Honour's conclusion was not part of the ultimate reason for deciding the case. In the course of a challenge to a decision of the Tribunal, the applicant sought leave to amend the application to allege that the reconstitution of the Tribunal on the remittal of the review had been improper. His Honour refused leave to so amend the application, and in any event his Honour said that he would have resolved the point adversely to that applicant. In that case, as here, the Minister said that the reconstitution of the Tribunal following the quashing of its earlier decision was made under s 421 of the Act rather than s 422A of the Act (as contemplated by Lindsay FM in SZLQK ). His Honour noted that the justice of the case, when a decision of the Tribunal has been set aside, is generally that the Tribunal be reconstituted by a different member: see also Northern NSW FM Pty Limited v Australian Broadcasting Tribunal (1990) 26 FCR 39 at 43; Australian Trade Commission v Underwood Exports Pty Ltd (1997) 49 ALD 426 at 427. In NBMB , at [39]-[41], Flick J decided that there was no reason to impose any constraint upon the power conferred by s 421(2) in that circumstance. As he pointed out, it is a power that can be exercised from time to time: Acts Interpretation Act 1901 (Cth), s 33(1). The discretion to exercise that power, his Honour said, is to be exercised in the light of all the circumstances, including the order of the Federal Magistrates Court quashing the initial decision and what is recognised as "justice being seen to be done". His Honour also adverted to the possibility that the unavailability of a member for the purposes of s 422 may not simply be where the term of appointment has expired, or the member has died or become unable to carry out his duties, or has resigned. Unavailability might also arise, his Honour speculated at [41], where an order is made quashing the decision of the Tribunal as originally constituted. Otherwise, a member may remain "available" even though "justice in general is better seen to be done" if that member did not further participate in any re-hearing. There are good reasons that it should be available to be so exercised it, namely that the decision of Member Muling had been quashed for jurisdictional error. As Flick J said in NBMB at [39]-[40]: The decision of the Tribunal as initially constituted had been set aside by the Federal Magistrates Court. Where such an order is made, "justice is in general better seen to be done if the Court or the Tribunal is reconstituted for the purposes of the rehearing" : Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39 at 43. See also Australian Trade Commission v Underwood Exports Pty Ltd (1997) 49 ALD 426 at 427. The "usual position [is] that remission to a differently constituted tribunal is the ordinary way to proceed": Industry Research and Development Board v IMT Ltd [2001] FCA 85 at [40] . There is no reason to impose any constraint upon the power conferred by s 421(2). The decision of the initial tribunal having been set aside, the exercise of the power conferred by s 421(2) thereafter arose for consideration. It is a power that can be exercised from time to time: s 31 of the Acts Interpretation Act 1901 (Cth). The discretion to be exercised by the principal member or his delegate was a discretion to be exercised in light of all the circumstances, including the order of the Federal Magistrates Court and what is recognised as "justice being seen to be done." Section 421(2) confers a power of appointment upon the principal member or his delegate: Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11 ; (2003) 215 CLR 518 at [40] per McHugh J. In the present proceedings, that power was exercised by a person with an appropriate delegation. The applicant submitted that s 33(1) of the Acts Interpretation Act 1901 (Cth) does not support the conclusion I have reached, although Flick J in NBMB in the passage set out above also referred to it. It relevantly provides that, where an Act confers a power, then that power may be exercised from time to time as the occasion arises, unless the contrary intention appears. The argument was that, by reason of ss 422 and 422A, a contrary intention did appear. I have rejected the contention that ss 422 and 422A cover all the circumstances in which the Tribunal may be reconstituted, as I consider they confine the general power in s 421 only in respect of the circumstances to which they relate. In other circumstances, or at least in circumstances such as the present, they do not limit the availability of s 421 to permit the reconstitution of the Tribunal. They do not reveal the contrary intention asserted on behalf of the applicant. Section 33(1) of the Acts Interpretation Act 1901 (Cth) therefore can, as it does, make clear that the power under s 421 may where it is available to be used be exercised from time to time. In the light of that conclusion, I do not need to consider the alternative contention of the Minister that, in any event, s 422 applies as the circumstances enable the Tribunal to be reconstituted because the initial member is not, or is no longer "available" for the purpose of the review. That was a possibility adverted to by Flick J in NBMB at [41]. There are some circumstances where, in the interests of justice, the remitted review might clearly be conducted by the initially appointed member (an obvious example is where the member applied the law as expressed in a binding decision, but that decision was subsequently reversed on an appeal). Thus, it would not appear that the quashing of a decision of the initial member necessarily leads to that member then becoming no longer "available" to conduct the review. Consequently, if that alternative contention is correct, the concept of availability would be a somewhat amorphous one, perhaps depending on the nature and gravity of the jurisdictional error in the first decision. It is not clear that such an inquiry was intended when a decision of the Tribunal has been quashed for jurisdictional error. I note the applicant's further argument in support of the alternative contention, based on s 422(1)(b) referring to the initial member of the Tribunal no longer being available for the purpose of the review "at the place" where the review is being conducted. It was argued that such an expression, directing attention to a geographical focus as one of the elements for the exercise of the power, also indicates that s 422 is not available in circumstances such as the present to reconstitute the Tribunal. It is not necessary to address that argument, in view of my conclusion above. I note that the "place where the review is being conducted" is not defined in the Act. Section 430A refers to the place at which a decision is to be handed down. A review may be conducted by a member sitting in one location or State, and the visa applicant being in another location or State; sometimes a legal representative or another migration agent, or an interpreter, is in yet another location. Sometimes, I assume, the hearing conducted under s 425 will occur away from the location or State in which the application for review was filed. I suspect that the reference to the "place where the review is being conducted" is not a necessary limiting factor upon when a member is no longer "available" to conduct that review. As I have said, it is not necessary to decide that question.


case_text: NBMB v Minister for Immigration and Citizenship (2008) 100 ALD 118 ( NBMB ), delivered on 26 February 2008, Flick J reached a different conclusion. As it happened, his Honour's conclusion was not part of the ultimate reason for deciding the case. In the course of a challenge to a decision of the Tribunal, the applicant sought leave to amend the application to allege that the reconstitution of the Tribunal on the remittal of the review had been improper. His Honour refused leave to so amend the application, and in any event his Honour said that he would have resolved the point adversely to that applicant. In that case, as here, the Minister said that the reconstitution of the Tribunal following the quashing of its earlier decision was made under s 421 of the Act rather than s 422A of the Act (as contemplated by Lindsay FM in SZLQK ). His Honour noted that the justice of the case, when a decision of the Tribunal has been set aside, is generally that the Tribunal be reconstituted by a different member: see also Northern NSW FM Pty Limited v Australian Broadcasting Tribunal (1990) 26 FCR 39 at 43; Australian Trade Commission v Underwood Exports Pty Ltd (1997) 49 ALD 426 at 427. In NBMB , at [39]-[41], Flick J decided that there was no reason to impose any constraint upon the power conferred by s 421(2) in that circumstance. As he pointed out, it is a power that can be exercised from time to time: Acts Interpretation Act 1901 (Cth), s 33(1). The discretion to exercise that power, his Honour said, is to be exercised in the light of all the circumstances, including the order of the Federal Magistrates Court quashing the initial decision and what is recognised as "justice being seen to be done". His Honour also adverted to the possibility that the unavailability of a member for the purposes of s 422 may not simply be where the term of appointment has expired, or the member has died or become unable to carry out his duties, or has resigned. Unavailability might also arise, his Honour speculated at [41], where an order is made quashing the decision of the Tribunal as originally constituted. Otherwise, a member may remain "available" even though "justice in general is better seen to be done" if that member did not further participate in any re-hearing. There are good reasons that it should be available to be so exercised it, namely that the decision of Member Muling had been quashed for jurisdictional error. As Flick J said in NBMB at [39]-[40]: The decision of the Tribunal as initially constituted had been set aside by the Federal Magistrates Court. Where such an order is made, "justice is in general better seen to be done if the Court or the Tribunal is reconstituted for the purposes of the rehearing" : Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39 at 43. See also Australian Trade Commission v Underwood Exports Pty Ltd (1997) 49 ALD 426 at 427. The "usual position [is] that remission to a differently constituted tribunal is the ordinary way to proceed": Industry Research and Development Board v IMT Ltd [2001] FCA 85 at [40] . There is no reason to impose any constraint upon the power conferred by s 421(2). The decision of the initial tribunal having been set aside, the exercise of the power conferred by s 421(2) thereafter arose for consideration. It is a power that can be exercised from time to time: s 31 of the Acts Interpretation Act 1901 (Cth). The discretion to be exercised by the principal member or his delegate was a discretion to be exercised in light of all the circumstances, including the order of the Federal Magistrates Court and what is recognised as "justice being seen to be done." Section 421(2) confers a power of appointment upon the principal member or his delegate: Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11 ; (2003) 215 CLR 518 at [40] per McHugh J. In the present proceedings, that power was exercised by a person with an appropriate delegation.


case_title: Australian Trade Commission v Underwood Exports Pty Ltd (1997) 49 ALD 426


case_text: on this issue, I refer to the decision of the Full Court in SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107 ; (2007) 159 FCR 291. I have given anxious thought to whether that decision, which is of course binding on me, dictates a different conclusion to the one I have reached. Where the Tribunal has been differently reconstituted following the quashing of its initial decision, that case decided that s 424A did not require the Tribunal as newly constituted to re-give particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review. I do not think that decision dictates an opposite conclusion. Clearly, in the case of a Tribunal reconstituted under ss 422 or 422A, where the Tribunal's task is to "finish the review", that decision is apt. It may also be apt where the Tribunal has been reconstituted under s 421, where at least in one sense the process of review by its consideration of a member of the Tribunal recommences. In the latter circumstance, the activating fact to enliven s 424A must be the assessment of the information by the Tribunal as constituted. If, however, as appears to have been the case in that decision, the Tribunal as reconstituted formed the same view about certain information as the Tribunal as previously constituted, because (as the Full Court pointed out at [42]) the giving of the required notice may be given administratively, the notice given earlier would satisfy s 424A. The second ground of review, so the applicant argues, is that the Tribunal wrongly asked whether the applicant is a conscientious objector rather than whether he would refuse to undergo further military service if he were to return to Israel. For that reason, I have put the words "conscientious objector" in quotation marks in the heading to this part of my reasons. The critical part of its reasons are set out at [15] above.


case_text: Tribunal was obliged to consider any claim made by the applicant which could, if the asserted facts were established to the satisfaction of the Tribunal, resolve the application for a protection visa in his favour: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 77 ALJR 1088 at [23] and [32] per Gummow and Callinan JJ, Hayne J agreeing, and at [65] and [74] per Kirby J. That case involved a failure to respond to a substantial, clearly articulated argument relying upon established facts, and so a failure to exercise its jurisdiction in relation to that claim. In NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1 at [63] , the Court (Black CJ, French and Selway JJ) said: It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. See also Chen v Minister for Immigration and Multicultural Affairs [2000] FCA 1901 ; (2000) 106 FCR 157 at [114] .


case_title: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1


case_title: Chen v Minister for Immigration and Multicultural Affairs [2000] FCA 1901 ; (2000) 106 FCR 157


case_text: do not need to consider the contention that the Tribunal, by focusing on the term "conscientious objector" as it is explained in the context of s 29A of the National Service Act 1951 (Cth) in R v District Court of Queensland Northern District; Ex parte Thompson [1968] HCA 48 ; (1968) 118 CLR 488 at 492, failed to ask itself the correct question under the Convention. I have reached the view that it failed to consider the applicant's claim to have been a conscientious objector according to law. The third contention of the applicant can be shortly dealt with.


case_text: 425(1) obliges the Tribunal to invite the applicant to appear to give evidence and present arguments relating to the issues arising in relation to the decision under review. The nature and extent of that obligation, in the sense of the Tribunal putting the applicant on notice as to the matters he should address at the hearing, was discussed by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [35] , [36] and [47]. In particular, at [36] the Court (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ) said: Ordinarily then, as was the case here, the Tribunal will begin its interview of an applicant who has accepted the Tribunal's invitation to appear, knowing that it is not persuaded by the material already before it to decide the review in the applicant's favour. That lack of persuasion may be based on particular questions the Tribunal has about specific aspects of the material already before it; it may be based on nothing more particular than a general unease about the veracity of what is revealed in that material. But unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision. It is appropriate, where there has been a remittal of an earlier decision of the Tribunal, to apply that observation to the reasons given by the Tribunal as earlier constituted, provided of course that the reasons for that decision being quashed do not negate the relevant earlier reasons. The problem here, however, is not that the Tribunal did not ask the applicant to expand on those aspects of his claim based upon his asserted political beliefs which would lead him not to undertake further military service and to explain why that account should be accepted. The problem here, as I have found, is simply that the Tribunal appears not to have recognised that the applicant did expand on that aspect of his claim as it did not then consider whether to accept his evidence or to consider its consequences. In my view, the Tribunal's error was not in failing to fulfil the requirements of s 425. It is a different one. For those reasons, I direct that the decision of the Tribunal given on 7 July 2008 be quashed, and the matter constituting the review instigated by application made on 25 May 2007 be remitted to the Tribunal again for consideration according to law. The Minister should pay to the applicant his costs of the application. I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate: Dated: 27 May 2009 Counsel for the Applicant: S Ower Solicitor for the Applicant: McDonald Steed McGrath Counsel for the Respondents: C Bleby Solicitor for the Respondents: Australian Government Solicitor Date of Hearing: 27 April 2009 Date of Judgment: 27 May 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/554.html


case_text: The phrase "assessable income " refers not to the assessable income of the year in which the expenditure was incurred but to assessable income generally: Steele at [22]; Fletcher at 16 - 17; Ronpibon at 56 (per Latham CJ, Rich, Dixon, McTiernan and Webb JJ); Riverside Road Lodge at 311; Commissioner of Taxation (Cth) v Total Holdings (Aust) Pty Ltd [1979] FCA 30 ; (1979) 43 FLR 217 at 222 and AGC (Advances) Ltd v Commissioner of Taxation (Cth) [1975] HCA 7 ; (1975) 132 CLR 175 at 189 and 196-197. 40 Finally, even if an item of expenditure cannot be traced to a particular item of income that fact of itself does not mean that the expenditure is not deductible: Total Holdings at 224 and the authorities there cited. However, an item of expenditure may not be deductible if it was incurred at a point too soon before the income producing activity commenced or if it was incurred after the income producing activity has ceased: Steele at [44]; Federal Commissioner of Taxation v Maddalena (1971) 45 ALJR 426; Riverside Road Lodge at 313; Amalgamated Zinc at 309 and AGC (Advances) at 197-198.


case_text: Spriggs submitted that the management fee was, as the invoice stated, for " management and promotional services by CSM for season 2004 " and that those services were not identified. I reject that contention. A label is never determinative: Commissioner of Taxation v Broken Hill Pty Co Ltd (2000) ATC 4659 at 4668; Colonial Mutual Life Assurance Society Ltd v Federal Commissioner of Taxation [1953] HCA 68 ; (1953) 89 CLR 428 ; Hallstroms Pty Ltd v Commissioner of Taxation [1946] HCA 34 ; (1946) 72 CLR 634 and Sun Newspapers Ltd & Associated Newspapers Ltd v Commissioner of Taxation [1938] HCA 72 ; (1938) 61 CLR 337. The fee paid by Spriggs to CSM was payment for Connors of CSM negotiating a playing contract with an AFL club. The playing contract facilitated the generation of income of both Football Payments and Additional Services Payments. CSM negotiated each of Spriggs' AFL playing contracts. That is not surprising. Mr Shinners from AFLPA said that it is rare for a player to negotiate his own playing contract and he estimates 90% of AFL players currently have an accredited agent. Consistent with the terms of the Representation Agreement, Connors from CSM also negotiated the activities that generated or produced all of Spriggs' income from "Additional Services". 66 An examination of the character of the advantage sought is assisted by asking two questions: (1) what was the management fee really paid for? and (2) is what it was really paid for, in truth and in substance, a capital asset?: Colonial Mutual at 454 and Sun Newspapers Ltd at 359-360. The advantage must be identified and characterised. The answer to those questions is not assisted by an analysis of the contractual right or rights secured under the contract, as distinct from the activity itself: see Federal Commissioner of Taxation v Raymor (NSW) Pty Ltd [1990] FCA 193 ; (1990) 24 FCR 90 at 99 (per Davies, Gummow and Hill JJ) citing Dixon J in Hallstroms at 648. As Dixon J said in Hallstroms , the answer: "...depends on what the expenditure is calculated to effect from a practical and business point of view, rather than upon the juristic classification of the legal rights, if any, secured, employed or exhausted in the process." See also Citylink at [148] (per Crennan J) (with whom Gleeson CJ, Gummow, Heydon and Callinan JJ agreed).


case_title: Commissioner of Taxation (Cth) v Broken Hill Pty Co Ltd (2000) ATC 4659

case_text: Spriggs submitted that the management fee was, as the invoice stated, for " management and promotional services by CSM for season 2004 " and that those services were not identified. I reject that contention. A label is never determinative: Commissioner of Taxation v Broken Hill Pty Co Ltd (2000) ATC 4659 at 4668; Colonial Mutual Life Assurance Society Ltd v Federal Commissioner of Taxation [1953] HCA 68 ; (1953) 89 CLR 428 ; Hallstroms Pty Ltd v Commissioner of Taxation [1946] HCA 34 ; (1946) 72 CLR 634 and Sun Newspapers Ltd & Associated Newspapers Ltd v Commissioner of Taxation [1938] HCA 72 ; (1938) 61 CLR 337. The fee paid by Spriggs to CSM was payment for Connors of CSM negotiating a playing contract with an AFL club. The playing contract facilitated the generation of income of both Football Payments and Additional Services Payments. CSM negotiated each of Spriggs' AFL playing contracts. That is not surprising. Mr Shinners from AFLPA said that it is rare for a player to negotiate his own playing contract and he estimates 90% of AFL players currently have an accredited agent. Consistent with the terms of the Representation Agreement, Connors from CSM also negotiated the activities that generated or produced all of Spriggs' income from "Additional Services".


case_text: However, the expenditure must be incidental and relevant to the gaining or producing of assessable income: Steele v Deputy Commissioner of Taxation [1999] HCA 7 ; (1999) 197 CLR 459 at [22] ; Ronpibon Tin NL v Commissioner of Taxation (Cth) [1949] HCA 15 ; (1949) 78 CLR 47 at 56 (per Latham CJ, Rich, Dixon, McTiernan and Webb JJ) and Commissioner of Taxation (Cth) v Riverside Road Lodge Pty Ltd (in liq) [1990] FCA 205 ; (1990) 23 FCR 305 at 311-312. What is incidental and relevant is determined not by reference to the certainty or likelihood of the expenditure resulting in the generation of income. One must identify the essential character of the expenditure to determine whether it is in truth an outgoing incurred in gaining or producing assessable income: Fletcher v Federal Commissioner of Taxation [1991] HCA 42 ; (1991) 173 CLR 1 at 17 and Lunney v Commissioner of Taxation [1958] HCA 5 ; (1958) 100 CLR 478 at 499. 39 The phrase "assessable income " refers not to the assessable income of the year in which the expenditure was incurred but to assessable income generally: Steele at [22]; Fletcher at 16 - 17; Ronpibon at 56 (per Latham CJ, Rich, Dixon, McTiernan and Webb JJ); Riverside Road Lodge at 311; Commissioner of Taxation (Cth) v Total Holdings (Aust) Pty Ltd [1979] FCA 30 ; (1979) 43 FLR 217 at 222 and AGC (Advances) Ltd v Commissioner of Taxation (Cth) [1975] HCA 7 ; (1975) 132 CLR 175 at 189 and 196-197. 40 Finally, even if an item of expenditure cannot be traced to a particular item of income that fact of itself does not mean that the expenditure is not deductible: Total Holdings at 224 and the authorities there cited. However, an item of expenditure may not be deductible if it was incurred at a point too soon before the income producing activity commenced or if it was incurred after the income producing activity has ceased: Steele at [44]; Federal Commissioner of Taxation v Maddalena (1971) 45 ALJR 426; Riverside Road Lodge at 313; Amalgamated Zinc at 309 and AGC (Advances) at 197-198.


case_text: The phrase "assessable income " refers not to the assessable income of the year in which the expenditure was incurred but to assessable income generally: Steele at [22]; Fletcher at 16 - 17; Ronpibon at 56 (per Latham CJ, Rich, Dixon, McTiernan and Webb JJ); Riverside Road Lodge at 311; Commissioner of Taxation (Cth) v Total Holdings (Aust) Pty Ltd [1979] FCA 30 ; (1979) 43 FLR 217 at 222 and AGC (Advances) Ltd v Commissioner of Taxation (Cth) [1975] HCA 7 ; (1975) 132 CLR 175 at 189 and 196-197. 40 Finally, even if an item of expenditure cannot be traced to a particular item of income that fact of itself does not mean that the expenditure is not deductible: Total Holdings at 224 and the authorities there cited. However, an item of expenditure may not be deductible if it was incurred at a point too soon before the income producing activity commenced or if it was incurred after the income producing activity has ceased: Steele at [44]; Federal Commissioner of Taxation v Maddalena (1971) 45 ALJR 426; Riverside Road Lodge at 313; Amalgamated Zinc at 309 and AGC (Advances) at 197-198. 42 Whether an outgoing incurred by a taxpayer satisfies one or more of the positive limbs for deductibility depends upon the facts of each case: Maryborough Newspapers Co Ltd v Commissioner of Taxation [1929] HCA 16 ; (1929) 43 CLR 450 and Total Holdings at 223.


case_text: In Commissioner of Taxation v Stone [2005] HCA 21 ; (2005) 222 CLR 289 at [11] to [15], Gleeson CJ, Gummow, Hayne and Heydon JJ described "sport" and "professional sport" in the following terms: "11. "Sport" is usually used to describe forms of (more or less) athletic pastime undertaken for pleasure or recreation. In many contexts, it may be used in contradistinction to "business" or "occupation". It is a word that may carry with it echoes of what once was commonly understood to be the Olympic ideal of the amateur pitting skill and strength against others in the pursuit of excellence. It may convey only the idea of a pursuit which is intended to do no more than provide diversion or amusement to both participants and onlookers. 12. "Professional sport" may be thought to be a phenomenon of the second half of the 20th century. It was during that century that the expression came to be associated with those who made their principal pursuit the playing of sport for reward. During parts of the 20th century, and even before, distinctions were drawn among cricketers between those who were "gentlemen" and those who were "players", between the professional tennis player and the amateur, between the professional boxer and the amateur, between the golf club professional and the club player. What was understood as marking one group apart from the other was sometimes whether the "professional" was employed by an employer (often a club). But that was not the only basis for the distinction. Distinct codes of sport emerged in rugby football and in boxing, where the rules of the game differed according to whether those participating were professionals or amateurs. Then, as professional golf and tennis circuits developed, the distinction might be thought to have turned upon whether the individual sought to make the playing of the sport a full-time occupation and the principal source of income. 13. The plaintiff in Tolley v J S Fry & Sons Ltd ([1931] AC 333) was a well known amateur golfer. The House of Lords upheld the award by a jury of damages for libel of the plaintiff by reason of the publication in 1928 of an advertisement for the defendants' chocolate in which there appeared a caricature of the plaintiff. The innuendo pleaded by the plaintiff had been that (at 337): "[the] defendants meant, and were understood to mean, that the plaintiff had agreed or permitted his portrait to be exhibited for the purpose of the advertisement of the defendants' chocolate; that he had done so for gain and reward; that he had prostituted his reputation as an amateur golf player for advertising purposes, that he was seeking notoriety and gain by the means aforesaid; and that he had been guilty of conduct unworthy of his status as an amateur golfer". 14. However, the distinctions upon which the pleading in Tolley turned 75 years ag o (See Hopman v Mirror Newspapers Ltd (1960) 61 SR (NSW) 631) were never tidy. They never accommodated what probably always was, but certainly emerged as being, the wide variety of circumstances in which some of those participating in sport have received sums of money for, or as a result of, their endeavours on a playing arena. They are distinctions that do not take account of the changing role played by those who have organised sporting competitions. No longer is the organisation of such competitions the preserve, as it once may have been, of the voluntary association or members' club. Now many competitions are conducted for the profit of those who organise them. 15. Athletic contests for prizes are very old. Classifying a participant in such a contest as "professional" does no more than present the question: What is meant by "professional"? That is why asking no more than whether this taxpayer was a "professional" athlete either restates the relevant question, about whether the receipts in question were "income", in words that distract attention from the content of that relevant question, or it seeks to inject presuppositions into the debate that should not be made. Likewise, when considering whether a person who receives sums for, or in connection with, sport is conducting a business, or exploiting that person's skills or abilities for reward, care must be taken lest presuppositions that should not be made are injected into the debate." (Emphasis added.) The highlighted section of the passage is apt to describe the AFL and the players registered to play in the AFL Competition. Paragraph [15] of the passage is a reminder that the term 'professional' should not distract attention from the need for a critical assessment of the activities and income of the taxpayer. 33 Section 8 of the 1997 Act provides, so far as is relevant: "(1) You can deduct from your assessable income any loss or outgoing to the extent that: (a) it is incurred in gaining or producing your assessable income; or (b) it is necessarily incurred in carrying on a business for the purpose of gaining or producing your assessable income. (2) However, you cannot deduct a loss or outgoing under this section to the extent that: (a) it is a loss or outgoing of capital, or of a capital nature; or (b) it is a loss or outgoing of a private or domestic nature; or ..." 34 "Business" is defined in s 995-1 of the 1997 Act to include "any profession, trade, employment, vocation or calling, but does not include occupation as an employee." "Business" was defined in the same way in s 6(1) of the Income Tax Assessment Act 1936 (Cth) ("the 1936 Act "). 48 The Commissioner did not contend that it was not possible for a professional sportsperson to be carrying on a business of exploiting his or her sporting talent. As the High Court in Stone said (at 307): "The conclusion that the taxpayer was engaged in a business during the 1998-1999 year proceeds from an acceptance of the proposition that, showing that both before and during that year, the taxpayer was paid to endorse a company or its products as an athlete demonstrated that she has turned her athletic talent to account for money." Spriggs' position is not distinguishable. He turned his football talent to account for money both before and during the 2005 income year: see [27] [31] above. 49 In fact, the Commissioner did not dispute that CSM sought to negotiate "Additional Services" to be undertaken by Spriggs during the 2005 income year. The Commissioner's contention was that CSM's lack of success " demonstrates that ... Spriggs was not sufficiently marketable to sustain a viable business." That proposition should be rejected. That it seeks to import into the concept of "business", in the absence of an allegation of sham, some requirement of viability, is contrary to established authority on the question of what is a business and what business expenses are deductible. No less importantly, the contention is contrary to the facts. 50 First, the proposition is unworkable. By reference to what standard (financial or otherwise) and at what time would "viability" be determined? The Commissioner identified no standard. In any case, what was not viable about Spriggs' business in the 2005 income year? He received and returned assessable income from both Football Payments and a small amount of money for Additional Services. His income position was positive, not negative. 52 It is to the facts in the present case that I now turn. As noted above, Spriggs turned his football talent to account for money both before and during the 2005 income year. Not only had "trading" commenced, there was in fact a "discernible trading pattern". His business derived substantial income. 2005 was not the best year. It was not the worst. The 2005 income year cannot be looked at in isolation. As the High Court said in Stone (at 305), the fact that other sports and other athletes may have attracted larger rewards is irrelevant. 53 In the 2005 income year, Spriggs was carrying on a business for the purpose of gaining or producing his assessable income. For the reasons outlined above (see [43] to [47]), the management fee was incurred by Spriggs in carrying on that business. 54 The Commissioner contends that all expenditure incurred prior to an employment contract is not deductible. In this case, the Commissioner contends that the management fee was incurred at a point too soon to be an expense incurred in gaining or producing assessable income notwithstanding that: (1) the management fee was incurred on 20 December 2004; and (2) the playing contract for the 2005 season was signed on 9 December 2004. 55 The Commissioner's general (not to say universal) contention that all expenditure incurred prior to the playing contract being signed was not deductible because it came "at a point too soon to be properly regarded as incurred in gaining assessable income" should be rejected. Of course, as a general proposition, an expense may "come at a point too soon to be properly regarded as incurred in gaining assessable income". Whether an outgoing does come at a point too soon to satisfy s 8-1(a) of the 1997 Act is determined by reference to the particular facts of each case.


case_text: The classic test for resolving the distinction between capital and revenue is that stated by Dixon J in Sun Newspapers Ltd at 363: "There are, I think, three matters to be considered, (a) the character of the advantage sought, and in this its lasting qualities may play a part, (b) the manner in which it is to be used, relied upon or enjoyed, and in this and under the former head recurrence may play its part, and (c) the means adopted to obtain it; that is, by providing a periodical reward or outlay to cover its use or enjoyment for periods commensurate with the payment or by making a final provision or payment so as to secure future use or enjoyment." See also Federal Commissioner of Taxation v Citylink Melbourne Limited [2006] HCA 35 ; (2006) 80 ALJR 1282 at [147] and GP International Pipecoaters Pty Ltd v The Commissioner of Taxation of the Commonwealth of Australia [1990] HCA 25 ; (1990) 170 CLR 124 at 137. 66 An examination of the character of the advantage sought is assisted by asking two questions: (1) what was the management fee really paid for? and (2) is what it was really paid for, in truth and in substance, a capital asset?: Colonial Mutual at 454 and Sun Newspapers Ltd at 359-360. The advantage must be identified and characterised. The answer to those questions is not assisted by an analysis of the contractual right or rights secured under the contract, as distinct from the activity itself: see Federal Commissioner of Taxation v Raymor (NSW) Pty Ltd [1990] FCA 193 ; (1990) 24 FCR 90 at 99 (per Davies, Gummow and Hill JJ) citing Dixon J in Hallstroms at 648. As Dixon J said in Hallstroms , the answer: "...depends on what the expenditure is calculated to effect from a practical and business point of view, rather than upon the juristic classification of the legal rights, if any, secured, employed or exhausted in the process." See also Citylink at [148] (per Crennan J) (with whom Gleeson CJ, Gummow, Heydon and Callinan JJ agreed).


case_outcome: distinguished

case_text: Finally, even if an item of expenditure cannot be traced to a particular item of income that fact of itself does not mean that the expenditure is not deductible: Total Holdings at 224 and the authorities there cited. However, an item of expenditure may not be deductible if it was incurred at a point too soon before the income producing activity commenced or if it was incurred after the income producing activity has ceased: Steele at [44]; Federal Commissioner of Taxation v Maddalena (1971) 45 ALJR 426; Riverside Road Lodge at 313; Amalgamated Zinc at 309 and AGC (Advances) at 197-198. 56 The phrase "come at a point too soon to be properly regarded as incurred in gaining assessable income" was first used by Menzies J in Maddalena . However, that is not what occurred here. The Commissioner's reliance upon Maddalena is misplaced. The case is distinguishable on a number of bases. 57 The management fee was expenditure outlayed within a framework in which Spriggs, as a professional footballer, produced his income. That framework was the AFL Player Rules, the Representation Agreement and the Standard AFL Playing Contract. That framework has to be considered in context including Mr Shinners' evidence that it is rare for a player to negotiate his own playing contract and that he estimates 90% of AFL players currently have an accredited agent. 58 Moreover, the management fee was not incurred prior to the generation of the income. The income was ongoing. The income that was generated as a result of the negotiations of the Accredited Agent was, in each year (except 2004), from two necessarily related sources. One of those sources was the playing contract. The other was his additional services which he was able to provide only because he was a contracted AFL player. The term of Spriggs' playing contracts varied from between 1 and 2 years. For each year of each of the playing contracts negotiated by Connors of CSM, the Representation Agreement imposed an obligation on Spriggs to pay a percentage of his Football Payments to CSM. 61 Some analogies may or may not be apposite. And argument by analogy must never be allowed to obscure the particularity of the arrangements in question. Maddalena concerned an era of professional sportsmen and women which bears little or no resemblance to professional sport in the twenty first century. One only has to point to the absence of the electronic media, let alone the internet, in the 1930's to make good that proposition. Secondly, the factual matrix in Maddalena is very different to the factual matrix of Spriggs. 62 In Maddalena , Menzies J described the taxpayer and the issue in the following terms (at 548-9): "The question is whether the taxpayer, who earns his living as an electrician and as a professional footballer, is entitled to deductions under s 51 of the Income Tax Assessment Act [ 1936 (Cth)] of travelling expenses, and under s 51 and 64A of the Act of legal expenses, incurred by him in seeking and obtaining a new contract with a new club to play football. ... Of course, in his career as a professional footballer, a player who is successful ordinarily moves from grade to grade and from club to club. His employment is part-time and it is common for a player to play football in representative teams as well as with his club ... Furthermore, it is common knowledge that because a man is a successful professional he can earn fees from advertising and other sources which, of course, form part of his assessable income. Nothing I say in this judgment bears upon expenditure to earn such fees. Here it is the agreement with Newtown that the taxpayer spent money to secure." (Emphasis added.) 63 Spriggs was a full time professional footballer. Maddalena was not. Spriggs seeks to claim the management fee as a deduction. That fee was incurred after the playing contract was signed, not before, and could not be charged if no playing contract was negotiated. Maddalena sought to claim travelling expenses and legal expenses, expenses which were incurred before the playing contract and which were incurred regardless of whether or not a playing contract was secured. The management fee incurred by Spriggs did not " come at a point too soon to be properly regarded as incurred in gaining assessable income ". 64 In relation to the "negative limb" of s 8-1 of the 1997 Act , the Commissioner submitted that even if the management fee was an outgoing incurred by Spriggs in gaining or producing assessable income, it was on capital, not revenue, account and therefore not deductible under s 8-1 of the 1997 Act . This argument also fails.


case_text: An examination of the character of the advantage sought is assisted by asking two questions: (1) what was the management fee really paid for? and (2) is what it was really paid for, in truth and in substance, a capital asset?: Colonial Mutual at 454 and Sun Newspapers Ltd at 359-360. The advantage must be identified and characterised. The answer to those questions is not assisted by an analysis of the contractual right or rights secured under the contract, as distinct from the activity itself: see Federal Commissioner of Taxation v Raymor (NSW) Pty Ltd [1990] FCA 193 ; (1990) 24 FCR 90 at 99 (per Davies, Gummow and Hill JJ) citing Dixon J in Hallstroms at 648. As Dixon J said in Hallstroms , the answer: "...depends on what the expenditure is calculated to effect from a practical and business point of view, rather than upon the juristic classification of the legal rights, if any, secured, employed or exhausted in the process." See also Citylink at [148] (per Crennan J) (with whom Gleeson CJ, Gummow, Heydon and Callinan JJ agreed).


case_text: The limb is not confined to circumstances where the income is derived from carrying on a business: Fairfax at 40 and Federal Commissioner of Taxation v Snowden & Willson Pty Ltd [1958] HCA 23 ; (1958) 99 CLR 431 at 435-6.


case_text: However, the expenditure must be incidental and relevant to the gaining or producing of assessable income: Steele v Deputy Commissioner of Taxation [1999] HCA 7 ; (1999) 197 CLR 459 at [22] ; Ronpibon Tin NL v Commissioner of Taxation (Cth) [1949] HCA 15 ; (1949) 78 CLR 47 at 56 (per Latham CJ, Rich, Dixon, McTiernan and Webb JJ) and Commissioner of Taxation (Cth) v Riverside Road Lodge Pty Ltd (in liq) [1990] FCA 205 ; (1990) 23 FCR 305 at 311-312. What is incidental and relevant is determined not by reference to the certainty or likelihood of the expenditure resulting in the generation of income. One must identify the essential character of the expenditure to determine whether it is in truth an outgoing incurred in gaining or producing assessable income: Fletcher v Federal Commissioner of Taxation [1991] HCA 42 ; (1991) 173 CLR 1 at 17 and Lunney v Commissioner of Taxation [1958] HCA 5 ; (1958) 100 CLR 478 at 499. 39 The phrase "assessable income " refers not to the assessable income of the year in which the expenditure was incurred but to assessable income generally: Steele at [22]; Fletcher at 16 - 17; Ronpibon at 56 (per Latham CJ, Rich, Dixon, McTiernan and Webb JJ); Riverside Road Lodge at 311; Commissioner of Taxation (Cth) v Total Holdings (Aust) Pty Ltd [1979] FCA 30 ; (1979) 43 FLR 217 at 222 and AGC (Advances) Ltd v Commissioner of Taxation (Cth) [1975] HCA 7 ; (1975) 132 CLR 175 at 189 and 196-197.


case_text: The classic test for resolving the distinction between capital and revenue is that stated by Dixon J in Sun Newspapers Ltd at 363: "There are, I think, three matters to be considered, (a) the character of the advantage sought, and in this its lasting qualities may play a part, (b) the manner in which it is to be used, relied upon or enjoyed, and in this and under the former head recurrence may play its part, and (c) the means adopted to obtain it; that is, by providing a periodical reward or outlay to cover its use or enjoyment for periods commensurate with the payment or by making a final provision or payment so as to secure future use or enjoyment." See also Federal Commissioner of Taxation v Citylink Melbourne Limited [2006] HCA 35 ; (2006) 80 ALJR 1282 at [147] and GP International Pipecoaters Pty Ltd v The Commissioner of Taxation of the Commonwealth of Australia [1990] HCA 25 ; (1990) 170 CLR 124 at 137.


case_title: Hallstroms Pty Ltd v Federal Commissioner of Taxation [1946] HCA 34 ; (1946) 72 CLR 634


case_text: The first positive limb is directed at expenditure " incurred in gaining or producing your assessable income " (emphasis added). "In" means in the actual course of producing assessable income: Federal Commissioner of Taxation v Payne [2001] HCA 3 ; (2001) 202 CLR 93 at 99 (Gleeson CJ, Kirby and Hayne JJ); Amalgamated Zinc (De Bavay's) Ltd v Commissioner of Taxation (Cth) [1935] HCA 81 ; (1935) 54 CLR 295 at 303 (Latham CJ) and at 309 (Dixon J); W Nevill & Co Ltd v Commissioner of Taxation (Cth) [1937] HCA 9 ; (1937) 56 CLR 290 at 305; and John Fairfax & Sons Pty Ltd v Commissioner of Taxation (Cth) [1959] HCA 4 ; (1959) 101 CLR 30 at 40. 37 The limb is not confined to circumstances where the income is derived from carrying on a business: Fairfax at 40 and Federal Commissioner of Taxation v Snowden & Willson Pty Ltd [1958] HCA 23 ; (1958) 99 CLR 431 at 435-6.


case_outcome: applied

case_text: Secondly, whether or not a person is in business is a question of fact: John v Federal Commissioner of Taxation [1989] HCA 5 ; (1989) 166 CLR 417 at 430. As the High Court went on to say in John : "... in some cases the determination of that fact may depend on questions of impression and degree. If trading has not commenced or if there is no discernible trading pattern, the question of intention or purpose may be relevant in the sense that if there is an absence of intention or purpose to engage in trade regularly, routinely or systematically then the person may well not be a trader." A business does not have to be successful to be a business: John at 430.


case_text: However, the expenditure must be incidental and relevant to the gaining or producing of assessable income: Steele v Deputy Commissioner of Taxation [1999] HCA 7 ; (1999) 197 CLR 459 at [22] ; Ronpibon Tin NL v Commissioner of Taxation (Cth) [1949] HCA 15 ; (1949) 78 CLR 47 at 56 (per Latham CJ, Rich, Dixon, McTiernan and Webb JJ) and Commissioner of Taxation (Cth) v Riverside Road Lodge Pty Ltd (in liq) [1990] FCA 205 ; (1990) 23 FCR 305 at 311-312. What is incidental and relevant is determined not by reference to the certainty or likelihood of the expenditure resulting in the generation of income. One must identify the essential character of the expenditure to determine whether it is in truth an outgoing incurred in gaining or producing assessable income: Fletcher v Federal Commissioner of Taxation [1991] HCA 42 ; (1991) 173 CLR 1 at 17 and Lunney v Commissioner of Taxation [1958] HCA 5 ; (1958) 100 CLR 478 at 499.


case_text: Whether an outgoing incurred by a taxpayer satisfies one or more of the positive limbs for deductibility depends upon the facts of each case: Maryborough Newspapers Co Ltd v Commissioner of Taxation [1929] HCA 16 ; (1929) 43 CLR 450 and Total Holdings at 223.


case_text: However, the expenditure must be incidental and relevant to the gaining or producing of assessable income: Steele v Deputy Commissioner of Taxation [1999] HCA 7 ; (1999) 197 CLR 459 at [22] ; Ronpibon Tin NL v Commissioner of Taxation (Cth) [1949] HCA 15 ; (1949) 78 CLR 47 at 56 (per Latham CJ, Rich, Dixon, McTiernan and Webb JJ) and Commissioner of Taxation (Cth) v Riverside Road Lodge Pty Ltd (in liq) [1990] FCA 205 ; (1990) 23 FCR 305 at 311-312. What is incidental and relevant is determined not by reference to the certainty or likelihood of the expenditure resulting in the generation of income. One must identify the essential character of the expenditure to determine whether it is in truth an outgoing incurred in gaining or producing assessable income: Fletcher v Federal Commissioner of Taxation [1991] HCA 42 ; (1991) 173 CLR 1 at 17 and Lunney v Commissioner of Taxation [1958] HCA 5 ; (1958) 100 CLR 478 at 499. 39 The phrase "assessable income " refers not to the assessable income of the year in which the expenditure was incurred but to assessable income generally: Steele at [22]; Fletcher at 16 - 17; Ronpibon at 56 (per Latham CJ, Rich, Dixon, McTiernan and Webb JJ); Riverside Road Lodge at 311; Commissioner of Taxation (Cth) v Total Holdings (Aust) Pty Ltd [1979] FCA 30 ; (1979) 43 FLR 217 at 222 and AGC (Advances) Ltd v Commissioner of Taxation (Cth) [1975] HCA 7 ; (1975) 132 CLR 175 at 189 and 196-197. 41 The first and second positive limbs overlap. They are not mutually exclusive. As the High Court said in Ronpibon (at 56), " in actual working [the second limb] can add but little to the operation of " the first limb. Three points should be made about the second limb: it operates and only operates to allow deductions of business expenses; the business must be carried on for the purpose of gaining or producing assessable income and, as with the first limb, "assessable income" refers to assessable income generally and not the assessable income of a particular income year.


case_title: Sun Newspapers Ltd and Associated Newspapers Ltd v Federal Commissioner of Taxation [1938] HCA 72 ; (1938) 61 CLR 337

case_text: Spriggs submitted that the management fee was, as the invoice stated, for " management and promotional services by CSM for season 2004 " and that those services were not identified. I reject that contention. A label is never determinative: Commissioner of Taxation v Broken Hill Pty Co Ltd (2000) ATC 4659 at 4668; Colonial Mutual Life Assurance Society Ltd v Federal Commissioner of Taxation [1953] HCA 68 ; (1953) 89 CLR 428 ; Hallstroms Pty Ltd v Commissioner of Taxation [1946] HCA 34 ; (1946) 72 CLR 634 and Sun Newspapers Ltd & Associated Newspapers Ltd v Commissioner of Taxation [1938] HCA 72 ; (1938) 61 CLR 337. The fee paid by Spriggs to CSM was payment for Connors of CSM negotiating a playing contract with an AFL club. The playing contract facilitated the generation of income of both Football Payments and Additional Services Payments. CSM negotiated each of Spriggs' AFL playing contracts. That is not surprising. Mr Shinners from AFLPA said that it is rare for a player to negotiate his own playing contract and he estimates 90% of AFL players currently have an accredited agent. Consistent with the terms of the Representation Agreement, Connors from CSM also negotiated the activities that generated or produced all of Spriggs' income from "Additional Services". 65 The classic test for resolving the distinction between capital and revenue is that stated by Dixon J in Sun Newspapers Ltd at 363: "There are, I think, three matters to be considered, (a) the character of the advantage sought, and in this its lasting qualities may play a part, (b) the manner in which it is to be used, relied upon or enjoyed, and in this and under the former head recurrence may play its part, and (c) the means adopted to obtain it; that is, by providing a periodical reward or outlay to cover its use or enjoyment for periods commensurate with the payment or by making a final provision or payment so as to secure future use or enjoyment." See also Federal Commissioner of Taxation v Citylink Melbourne Limited [2006] HCA 35 ; (2006) 80 ALJR 1282 at [147] and GP International Pipecoaters Pty Ltd v The Commissioner of Taxation of the Commonwealth of Australia [1990] HCA 25 ; (1990) 170 CLR 124 at 137. 66 An examination of the character of the advantage sought is assisted by asking two questions: (1) what was the management fee really paid for? and (2) is what it was really paid for, in truth and in substance, a capital asset?: Colonial Mutual at 454 and Sun Newspapers Ltd at 359-360. The advantage must be identified and characterised. The answer to those questions is not assisted by an analysis of the contractual right or rights secured under the contract, as distinct from the activity itself: see Federal Commissioner of Taxation v Raymor (NSW) Pty Ltd [1990] FCA 193 ; (1990) 24 FCR 90 at 99 (per Davies, Gummow and Hill JJ) citing Dixon J in Hallstroms at 648. As Dixon J said in Hallstroms , the answer: "...depends on what the expenditure is calculated to effect from a practical and business point of view, rather than upon the juristic classification of the legal rights, if any, secured, employed or exhausted in the process." See also Citylink at [148] (per Crennan J) (with whom Gleeson CJ, Gummow, Heydon and Callinan JJ agreed).


case_text: The first positive limb is directed at expenditure " incurred in gaining or producing your assessable income " (emphasis added). "In" means in the actual course of producing assessable income: Federal Commissioner of Taxation v Payne [2001] HCA 3 ; (2001) 202 CLR 93 at 99 (Gleeson CJ, Kirby and Hayne JJ); Amalgamated Zinc (De Bavay's) Ltd v Commissioner of Taxation (Cth) [1935] HCA 81 ; (1935) 54 CLR 295 at 303 (Latham CJ) and at 309 (Dixon J); W Nevill & Co Ltd v Commissioner of Taxation (Cth) [1937] HCA 9 ; (1937) 56 CLR 290 at 305; and John Fairfax & Sons Pty Ltd v Commissioner of Taxation (Cth) [1959] HCA 4 ; (1959) 101 CLR 30 at 40.


case_title: Sutherland Publishing Company v Caxton Publishing Company Limited [1936] All ER 177

case_text: Subject to s 116(1C) , the Copyright Act contemplates that the Court may grant damages in respect of copyright infringement and in respect of conversion. In Sutherland Publishing Company Limited v Caxton Publishing Company Limited [1936] All ER 177 , the English Court of Appeal decided that the remedies given by ss 6 (for breach of copyright) and 7 (for conversion) of the English Copyright Act, 1911 were cumulative, not alternative remedies. Lord Wright, MR, explained (at 180-81) that: Both are claims for a wrong, each wrong being different from the other. The former is for a wrong done to an incorporeal right, copyright, the latter is for conversion of particular chattels, the infringing copies. The measure of damages is different. In the latter case the measure is the value of the copies, which by force of the statute are deemed to be the property of the plaintiff, from the mere fact of being brought into existence; whereas in the other case, the measure of damage is the depreciation caused by the infringement to the value of the copyright, as a chose in action. It was strenuously contended that where the infringement consisted in the multiplication and sale of copies of a work, the damages under the two sections would overlap and the injustice of giving double compensation would be committed. It may be true that in some cases there may be an overlapping of the damages under the two sections, but, as I have already explained, there are two separate and diverse causes of action, each of which must receive appropriate consideration when it comes to the question of damages. ... It must be left to the good sense of the tribunal which assesses the damages to avoid giving excessive damages. Subsection 116(1C) addresses the considerations raised in this second paragraph, requiring the Court to form an opinion as to the sufficiency of the relief to be granted under s 115 of the Copyright Act. (The formulation of the measure of damages for copyright infringement in the first paragraph of the above passage may be misleading in some circumstances: see, e.g., Autodesk Australia Pty Ltd v Cheung (1990) 94 ALR 472 (" Autodesk ") at 475 per Wilcox J.)


case_text: Subject to s 116(1C) , the Copyright Act contemplates that the Court may grant damages in respect of copyright infringement and in respect of conversion. In Sutherland Publishing Company Limited v Caxton Publishing Company Limited [1936] All ER 177 , the English Court of Appeal decided that the remedies given by ss 6 (for breach of copyright) and 7 (for conversion) of the English Copyright Act, 1911 were cumulative, not alternative remedies. Lord Wright, MR, explained (at 180-81) that: Both are claims for a wrong, each wrong being different from the other. The former is for a wrong done to an incorporeal right, copyright, the latter is for conversion of particular chattels, the infringing copies. The measure of damages is different. In the latter case the measure is the value of the copies, which by force of the statute are deemed to be the property of the plaintiff, from the mere fact of being brought into existence; whereas in the other case, the measure of damage is the depreciation caused by the infringement to the value of the copyright, as a chose in action. It was strenuously contended that where the infringement consisted in the multiplication and sale of copies of a work, the damages under the two sections would overlap and the injustice of giving double compensation would be committed. It may be true that in some cases there may be an overlapping of the damages under the two sections, but, as I have already explained, there are two separate and diverse causes of action, each of which must receive appropriate consideration when it comes to the question of damages. ... It must be left to the good sense of the tribunal which assesses the damages to avoid giving excessive damages. Subsection 116(1C) addresses the considerations raised in this second paragraph, requiring the Court to form an opinion as to the sufficiency of the relief to be granted under s 115 of the Copyright Act. (The formulation of the measure of damages for copyright infringement in the first paragraph of the above passage may be misleading in some circumstances: see, e.g., Autodesk Australia Pty Ltd v Cheung (1990) 94 ALR 472 (" Autodesk ") at 475 per Wilcox J.) 21 The infringement was flagrant in the sense that it was a "deliberate and calculated" infringement of the applicants' copyright: see Ravenscroft v Herbert and New English Library [1980] RPC 193 at 208 per Brightman J, cited with approval by Wilcox J in Autodesk at 478. In this regard, I refer to the findings at [65], [66], [67] and [77] in Boyapati (No 1) . The respondents acted in disregard of copyright notices: see Boyapati (No 1) at [70] and [77]. There was, furthermore, a continuing disregard of the applicants' rights even after the applicants had given notice of the infringement: see Boyapati (No 1) at [69]. The need to deter similar infringements of copyright


case_text: I accept that, as the applicants maintain, the provision to a student of an infringing copy of an Icarus College practice exam was an actionable conversion, the measure of damages being the market value of the exam. So calculated, conversion damages may be awarded under s 116. The applicants accept that, on this analysis, damages under s 115(2) would be confined to indirect losses, such as the diminution of goodwill or any loss associated with the failure to enhance goodwill or reputation: see TS & B Retail Systems Pty Ltd v 3Fold Resources Pty Ltd (No 3) (2007) 158 FCR 444 at 496 per Finkelstein J and Prior v Sheldon (2000) 48 IPR 301 at 321-22 per Wilcox J. This would apparently prevent any overlap of the kind that s 116(1C) is intended to avoid.


case_title: Prior v Sheldon (2000) 48 IPR 301


case_text: Ultimately, however, the court cannot form an opinion as to the sufficiency of relief under s 115 of the Copyright Act until relief under s 115 is granted or the court has reached a definite view about the relief it proposes to grant under this provision: compare Sony Entertainment (Australia) Ltd v Smith [2005] FCA 228 ; (2005) 64 IPR 18 at [119] - [121] per Jacobson J. Furthermore, I accept that, as the applicants submit, the assessment of conversion damages should begin with the respondents' discovery of data that would permit the reliable assessment of the number of times that the infringing exams were downloaded by students for their use. If this data were unavailable, then there would be a need to consider other bases for calculating conversion damages. 16 In the circumstances, it suffices to say, at this stage, that, subject to the opinion of the Court under s 116(1C), the applicants are entitled to an assessment of conversion damages under s 116(A), as well as infringement damages under s 115. 17 Subsection 116(1D) provides that, in deciding whether to grant relief in an action for conversion and in assessing the amount of damages payable, the court may have regard to the following: (a) the expenses incurred by the defendant, being a person who marketed or otherwise dealt with the infringing copy, in manufacturing or acquiring the infringing copy; (b) whether the expenses were incurred before or after the infringing copy was sold or otherwise disposed of by the defendant; (c) any other matter that the court considers relevant.


case_text: The infringement was flagrant in the sense that it was a "deliberate and calculated" infringement of the applicants' copyright: see Ravenscroft v Herbert and New English Library [1980] RPC 193 at 208 per Brightman J, cited with approval by Wilcox J in Autodesk at 478. In this regard, I refer to the findings at [65], [66], [67] and [77] in Boyapati (No 1) . The respondents acted in disregard of copyright notices: see Boyapati (No 1) at [70] and [77]. There was, furthermore, a continuing disregard of the applicants' rights even after the applicants had given notice of the infringement: see Boyapati (No 1) at [69]. The need to deter similar infringements of copyright


case_text: By virtue of s 43 of the Federal Court of Australia Act 1976 (Cth), the Court may make orders as to costs. The power, which is discretionary, must be exercised judicially: see Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at 234 per Black CJ and French J. Within this general discretion, it is accepted that costs ordinarily follow the event, with the result that a successful litigant receives costs in the absence of special circumstances justifying some other order: see Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at 234 per Black CJ and French J.


case_text: The usual rule is that costs are payable on a party and party basis, unless the circumstances of the case warrant a departure from the normal course: see Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 (" Colgate-Palmolive ") at 233 per Sheppard J and O 62 of the Rules. In Colgate-Palmolive , Sheppard J referred to the circumstances in which indemnity costs might be awarded, mentioning, amongst other things, "the fact that the proceedings were commenced or continued ... in wilful disregard of known facts or clearly established law" and "the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions", though noting that "[t]he question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis": see Colgate-Palmolive at 233-34. The Full Court reconsidered the appropriateness of an indemnity costs award in Re Wilcox: Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151 (" Re Wilcox ") at 152-53 per Black CJ and 156-58 per Cooper and Merkel JJ. In Re Wilcox , at 156-57, Cooper and Merkel JJ reiterated Sheppard J's approach, saying: In order to exercise the discretion [regarding costs] judicially the following principles have been accepted by the Court as applicable: (a) the Court ought not to depart from the rule that costs be ordered on a party and party basis unless the circumstances of the case warrant the Court in departing from the usual course; (b) the circumstances which may warrant departure from the usual course arise as and when the justice of the case so requires or where there may be some special or unusual feature in the case to justify the court in departing from the usual course; (c) whilst the circumstances in cases in which indemnity costs have been ordered offer a guide, the question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for costs other than on a party and party basis. See also Abbott v Random House Australia Pty Ltd [1999] FCA 1540 at [5] per Beaumont, Miles and Drummond JJ, quoting the above passage with approval. Even more recently, the Full Court in Hamod v New South Wales [2002] FCA 424 ; (2002) 188 ALR 659 at 665 (per Gray J, with whom Carr and Goldberg JJ agreed) explained the basal principle for an award of indemnity costs in the following terms: Indemnity costs are not designed to punish a party for persisting with a case that turns out to fail. They are not awarded as a means of deterring litigants from putting forward arguments that might be attended by uncertainty. Rather, they serve the purpose of compensating a party fully for costs incurred, as a normal costs order could not be expected to do, when the Court takes the view that it was unreasonable for the party against whom the order is made to have subjected the innocent party to the expenditure of costs.


case_title: Re Wilcox: Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151


case_title: Abbott v Random House Australia Pty Ltd [1999] FCA 1540


case_title: Hamod v New South Wales [2002] FCA 424 ; (2002) 188 ALR 659


case_text: Other cases decided recently in this Court show that these principles are regularly applied: see, e.g., Barrett Property Group Limited v Metricon Homes Pty Ltd (No 2) [2007] FCA 1823 (" Barrett ") at [3]-[5] per Gilmour J; Xat Ky v Australvic Property Management Pty Ltd (No 2 ) [2007] FCA 1785 at [12] - [13] , [29] per Middleton J; Access for All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2007] FCA 974 at [10] per Collier J; Jainshe Southern Pty Ltd v Turnbull Cooktown Pty Ltd (No 2) [2007] FCA 903 per Besanko J; and Cirillo v Consolidated Press Property Ltd (No 2) [2007] FCA 179 at [4] - [5] per Finn J. 40 As Gilmour J said in Barrett at [23]-[24]: The general rule under Order 62 rule 3(3) may be departed from where the party in whose favour the costs order was made was required by the interlocutory proceeding to 'incur significant costs over and above those which it would have incurred had the opposing party acted with competence and diligence': Life Airbag Co of Australia Pty Ltd v Life Airbag Co (New Zealand) Ltd [1998] FCA 545 ; where the proceeding is complex and its final resolution is a long time away: Allstate Life Insurance Co v ANZ Banking Group Ltd [1995] FCA 660 ; Readymix Holdings International Pty Ltd v Wieland Process Equipment Pty Ltd [2006] FCA 1297: Courtney v Medtel Pty Ltd (No 3) [2004] FCA 347. In McKellar v Container Terminal Management Services Ltd [1999] FCA 163 9, Weinberg J adopted the observation of Lindgren J in Allstate that: ... the power to order that costs be paid forthwith should perhaps be used less sparingly than it has in the past. This is particularly so in lengthy and complex cases where substantial costs have been thrown away as a result of ill-considered pleadings being drawn. Such costs should be capable of being recovered without the innocent party having to wait, possibly for years, for that to occur. In Barrett , Gilmour J referred to a number of cases in which the unsuccessful respondents in intellectual property cases were ordered to pay costs forthwith: see Barrett at [26]-[28]. As his Honour noted, however, each case depends very much on its own circumstances. 41 Having regard to the nature of the case, including the claims and diverse cross-claims that it involved, the evidence adduced by the parties, and the length of the trial, it may safely be assumed that the applicants have already incurred substantial costs. These costs are independent of the quantum of damages, which has yet to be established. The disposition of the quantum case may be some way off. Moreover, the applicants submit that "[t]he claim for damages may be rendered nugatory by the fact that the second respondent is once again bankrupt and by the first respondent's uncertain financial position". The respondents have not disputed this proposition. In the circumstances, it is appropriate that there be an order that the costs of the proceeding to date of the applicants/cross- respondents be paid forthwith. 42 The applicants also seek liberty to apply for an order that the costs in their favour be fixed in a gross sum in accordance with O 62 r 4(2)(c) of the Rules. They note (and the respondents do not dispute) the second respondent's current status as an undischarged bankrupt. They also note (and the respondents do not dispute) that the first respondent is a foreign corporation registered to conduct business in Australia without obvious assets in Australia. As already observed, the costs involved are likely to be substantial. Having regard to the course of the proceeding to date, it may reasonably be assumed that taxation will be drawn-out and expensive. The applicants may well be obliged to meet the entire financial burden. In these circumstances, the applicants have liberty to apply for an order that the costs in their favour be fixed in a gross sum in accordance with the Rules.


case_text: Other cases decided recently in this Court show that these principles are regularly applied: see, e.g., Barrett Property Group Limited v Metricon Homes Pty Ltd (No 2) [2007] FCA 1823 (" Barrett ") at [3]-[5] per Gilmour J; Xat Ky v Australvic Property Management Pty Ltd (No 2 ) [2007] FCA 1785 at [12] - [13] , [29] per Middleton J; Access for All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2007] FCA 974 at [10] per Collier J; Jainshe Southern Pty Ltd v Turnbull Cooktown Pty Ltd (No 2) [2007] FCA 903 per Besanko J; and Cirillo v Consolidated Press Property Ltd (No 2) [2007] FCA 179 at [4] - [5] per Finn J.


case_title: Access for All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2007] FCA 974


case_title: Jainshe Southern Pty Ltd v Turnbull Cooktown Pty Ltd (No 2) [2007] FCA 903


case_title: Cirillo v Consolidated Press Property Ltd (No 2) [2007] FCA 179


case_text: the appellant submitted that the Tribunal failed to invite him to appear before it, and, therefore, proceeded in breach of s 425(1) of the Act. As I have said, the Tribunal forwarded the letter dated 24 August 2005 containing the invitation to a hearing to the appellant's address for service. However, the Magistrate appears to have accepted the appellant's evidence to the effect that he had used a friend's address as his address for service. The friend had moved from that address and did not tell the appellant or the Tribunal. By the time the appellant found out about this and went to collect his mail, it was too late. The Magistrate held that the Tribunal had complied with s 441A of the Act and that there could be no jurisdictional error based merely on the appellant's failure to receive a notice. He referred to NADK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 184. The Magistrate's conclusion was that the decision of the Tribunal was a privative clause decision within s 474 of the Act and that there was no jurisdictional error. He therefore dismissed the application. In essence, other than an impermissible challenge to the merits of the decision made by the delegate and then the Tribunal, the appellant submitted on appeal that the Magistrate had erred in rejecting the two grounds upon which he challenged the Tribunal's decision. As to the second ground of challenge, that also must fail. The evidence establishes that the Tribunal complied with the service provisions in s 441A(4) of the Act and therefore the provisions of ss 425 and 425A. The fact that the arrangement between the appellant and his friend broke down and the appellant did not receive the letter from the Tribunal dated 24 August 2004 until it was too late is of no consequence in terms of the Tribunal's obligation and the question whether there had been a failure to comply with the Act which vitiates the decision: NADK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (supra) per Tamberlin, Sackville and Hely JJ at [16]. The Tribunal complied with the provisions of the Act and was entitled to proceed to make a decision on the review: VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 134 ; (2004) 136 FCR 407.


case_text: to the first ground of challenge, I see no error in the reasoning of the Magistrate. What the Tribunal member emphasised was the lack of information. On the authorities, that is not information within the terms of s 424A(1)(a): VAF v Minister for Immigration and Multicultural and Indigenous Affairs (supra) per Finn and Stone JJ at [24]; SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238. It is no more than the Tribunal's subjective appraisal of the material before it.


case_text: appellant lodged an application with the Federal Magistrates Court of Australia under s 476 of the Act. He challenged the Tribunal's decision on two grounds. First, he submitted that the Tribunal had not given to him particulars of information that it considered would be the reason or a part of the reason for affirming the decision that was under review within the provisions of s 424A(1) of the Act. The Magistrate rejected that submission on the ground that the reason for the Tribunal's decision was the inadequacy of the material provided to the Tribunal, and inadequacy of a claim is not 'information' for the purposes of s 424A of the Act. The Magistrate said that inadequacy of information is no more than a subjective appraisal by the Tribunal about the material provided and a subjective appraisal of the material does not constitute information for the purpose of s 424A. The Magistrate referred to VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 and SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195.


case_text: appellant lodged an application with the Federal Magistrates Court of Australia under s 476 of the Act. He challenged the Tribunal's decision on two grounds. First, he submitted that the Tribunal had not given to him particulars of information that it considered would be the reason or a part of the reason for affirming the decision that was under review within the provisions of s 424A(1) of the Act. The Magistrate rejected that submission on the ground that the reason for the Tribunal's decision was the inadequacy of the material provided to the Tribunal, and inadequacy of a claim is not 'information' for the purposes of s 424A of the Act. The Magistrate said that inadequacy of information is no more than a subjective appraisal by the Tribunal about the material provided and a subjective appraisal of the material does not constitute information for the purpose of s 424A. The Magistrate referred to VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 and SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195. As to the first ground of challenge, I see no error in the reasoning of the Magistrate. What the Tribunal member emphasised was the lack of information. On the authorities, that is not information within the terms of s 424A(1)(a): VAF v Minister for Immigration and Multicultural and Indigenous Affairs (supra) per Finn and Stone JJ at [24]; SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238. It is no more than the Tribunal's subjective appraisal of the material before it.


case_text: to the second ground of challenge, that also must fail. The evidence establishes that the Tribunal complied with the service provisions in s 441A(4) of the Act and therefore the provisions of ss 425 and 425A. The fact that the arrangement between the appellant and his friend broke down and the appellant did not receive the letter from the Tribunal dated 24 August 2004 until it was too late is of no consequence in terms of the Tribunal's obligation and the question whether there had been a failure to comply with the Act which vitiates the decision: NADK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (supra) per Tamberlin, Sackville and Hely JJ at [16]. The Tribunal complied with the provisions of the Act and was entitled to proceed to make a decision on the review: VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 134 ; (2004) 136 FCR 407.


case_text: practice application arises because of a perception, which is not ill-founded, on behalf of the Applicants that there has been a studied non-compliance by the Third, Fourth and Fifth Respondents which directions made in respect of the management of this case. The High Court in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27 ; (2009) 83 ALJR 951 (Aon Insurance), has recently emphasised the role of case management in the modern era in the conduct of litigation. It is the practice of this Court, and has been since its inception, for cases actively to be managed by judges. Directions in respect of interlocutory steps in a case given by a judge are not aspirational statements. The particular events of non-compliance are helpfully summarised in a table which forms part of the submissions made on behalf of the Applicants which is annexure A to the reasons for judgment. It does seem that the Third, Fourth and Fifth Respondents are not disposed to ignore Court orders in the sense that eventually there is compliance of sorts. That does not though mean that there is not an event of default of a kind which enlivens a jurisdiction under O 35A r 2 of the Federal Court Rules to give default judgment. The case is one listed for mediation on 27 November 2009. That is a factor I take into account in deciding whether to give default judgment as requested.