case_text: The applicant's case is, shortly, that to practice her religion without being persecuted because of her membership of an unregistered church, she is required to take steps to avoid harm by meeting in small groups. Reliance in this is placed on the decision of the High Court in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473 and especially the following observations of McHugh and Kirby JJ at [43]: " The notion that it is reasonable for a person to take action that will avoid persecutory harm invariably leads a tribunal of fact into a failure to consider properly whether there is a real chance of persecution if the person is returned to the country of nationality. This is particularly so where the actions of the persecutors have already caused the person affected to modify his or her conduct by hiding his or her religious beliefs, political opinions, racial origins, country of nationality or membership of particular social groups. In cases where the applicant has modified his or her conduct, there is a natural tendency for the tribunal of fact to reason that, because the applicant has not been persecuted in the past, he or she will not be persecuted in the future. The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor and the relevant persecutory conduct is the harm that will be inflicted ... To determine the issue of a real chance without determining whether the modified conduct was influenced by the threat of harm was to fail to consider that issue properly " : emphasis added; and at [50]: "Insofar as decisions in the Tribunal and the Federal Court contain statements that asylum seekers are required, or can be expected, to take reasonable steps to avoid persecutory harm, they are wrong in principle and should not be followed."


case_outcome: cited

case_text: The short answer to this is that it attributes to the Tribunal a requirement of the applicant that is not present in its reasons. It did not decide the case on the basis that it was reasonable to expect that the applicant would, or would have to continue to, take reasonable action to avoid harm. Having rejected on credibility grounds that the applicant's group subdivided itself on a number of occasions to make it "less noticeable to the police", there was no claim before the Tribunal that the applicant had modified her behaviour in any way so as to practise her religion without risk of persecution. The applicant's claim was that she was a member of a small group and was persecuted as such. While accepting her small group membership, the Tribunal rejected the claim to persecution, relying both on the unreliability of the applicant's evidence and on the absence of country information relating to the targeting of small Christian groups such as the applicant's. The Tribunal in other words, did not ask itself a wrong question. It addressed the case advanced by the applicant and it considered, in light of what it accepted of that case, whether she had a well-founded fear of persecution if she returned to China. It did not ask whether it was possible for the applicant to live in China in such a way that as to avoid harm. Rather, it concluded that, in the manner in which she actually practised her religion, she would not put herself at risk of persecution from the Chinese authorities: cf NABD of 2002 v Minister of Immigration & Multicultural & Indigenous Affairs [2005] HCA 29 ; (2005) 216 ALR 1 at [151] and [161] ff. 7 I will order that the application be dismissed and that the applicant pay the costs of the first respondent. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate: Dated: 10 February 2006 Counsel for the Applicant: Mr Keen Solicitor for the Applicant: Refugee Advocacy Service of South Australia Counsel for the Respondent: Mr Roder Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 8 February 2006 Date of Judgment: 10 February 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/76.html


case_outcome: considered

case_text: Like the Federal Magistrate, I can see no error in the Tribunal having reached such a view. Whether or not I would have come to such a view is completely irrelevant. Again, like the Federal Magistrate, I can see no other procedural fairness defect in the course adopted by the Tribunal. Indeed, in so far as one can glean the nature of the hearing from the summary in the reasons, it seems that the Tribunal went beyond the strict requirements of s 424A of the Migration Act as they have been explained by the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 ; (2007) 81 ALJR 1190 , and in that Court's earlier decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 79 ALJR 1009.


case_title: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 79 ALJR 1009


case_outcome: referred to

case_title: Li v Minister for Immigration and Citizenship [2007] FMCA 454

case_text: Further, I accept that, as the first respondent submitted, the absence of specific reference to persistence in the Tribunal's reasons does not demonstrate a failure to take into account "all the circumstances of the relationship" for the purposes of reg 1.15A(3). The Tribunal was not obliged to mention the fact that the appellant and her sponsor chose to persist with the application even though the Departmental officers indicated that it would be refused. In the circumstances of the case, the relevance and weight of this matter were entirely for the Tribunal. I agree with the learned Federal Magistrate that: "[T]he Tribunal was not obliged to give weight to, or mention specifically in its reasons, the evidence about the applicant persisting with the application in the fact of the indications from the delegate that the application would be refused." See Li v Minister for Immigration and Another [2007] FMCA 454 at [27] . 20 At the hearing of the appeal, the appellant's counsel sought to call into question the conduct of the Departmental officers. This was not raised by the notice of appeal. Nor was it raised in written submissions prior to the hearing. No such argument was advanced or supporting evidence adduced in the Federal Magistrates Court. Nor was the issue raised in the Tribunal. I would not entertain this argument on appeal. 21 Further, I would not infer from the Tribunal's reasons and its failure to mention the matter specifically that the Tribunal failed to have regard to the duration of the appellant's and sponsor's relationship. It set out in detail the evidence before it, referring to dates in the course of the relationship. It specifically mentioned that the appellant and sponsor were married on 1 March 2001. It was, thus, clearly aware of the duration of the relationship between them. The Tribunal noted in its reasons, however, that the evidence raised a number of issues on the subject of commitment. These issues arose from such matters as inconsistencies in the evidence regarding the financial and social aspects of their relationship, the nature of their household and living arrangements, as well as their purported reconciliation, the sponsor's failure to inform the appellant of his previous relationship and children, and the appellant's lack of knowledge of the sponsor's medical conditions. The state of the evidence led the Tribunal to state that it was "not satisfied that the visa applicant and the sponsor have demonstrated a genuine commitment to each other as spouses at the time of decision". The Tribunal's reasons do not show that it acted otherwise than in conformity with reg 1.15A(3).


case_text: Both the appellant and the first respondent agree that the Tribunal was not under any general duty to exercise its powers pursuant to ss 359 , 359B and 363 to obtain further information. I reject the appellant's submission that this case raised a circumstance of a kind considered in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 (' Prasad ') at 170. It was not obvious that there was any additional material that was readily available and centrally relevant to the Tribunal's decision: compare Prasad at 170 per Wilcox J. This was not a case in which the exercise of power was so unreasonable that no reasonable person would have so exercised it in that way. 29 I repeat my earlier observations on the matter of persistence. It should be borne in mind that, as stated above, the appellant's alleged persistence with her application in the face of a foreshadowed refusal was not of itself a consideration that the Tribunal was, as a matter of law, bound to take into account. I add that the Tribunal did not apparently rely in its reasons on any of the inconsistencies or discrepancies in evidence given by the appellant and her sponsor at the Departmental interview. 30 Accordingly, the appellant's fourth ground of appeal is not made out. For the reasons stated, I would dismiss this appeal with costs. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny. Associate: Dated: 3 August 2007 Counsel for the Appellant: Mr A. Krohn Solicitors for the Appellant: Chua Tan & Associates Counsel for the First Respondent: Mr C. Horan Solicitors for the First Respondent: Australian Government Solicitor Date of Hearing: 30 July 2007 Date of Judgment: 3 August 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1098.html


case_outcome: discussed

case_text: The original jurisdiction of the High Court to review migration decisions arises under s 75(v) of Australia's Constitution. Consequently the legislature does not have power to direct the manner in which the power under that section is exercised or to restrict access to the remedies for which it provides, although it may be that some level of regulation is permissible so long as it does not 'so curtail or limit the right or ability of applicants to seek relief under s 75(v) as to be inconsistent with the place of that provision in the constitutional structure ...'; Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14 at [53] . The legislature's power is not so restricted in relation to the jurisdiction of the FMC or the Federal Court. 40 Division 2 of Part 8 of the Migration Act allocates jurisdiction for the review of migration decisions between the FMC and the Federal Court. The amendments to the Migration Act made by the Reform Act gave wider jurisdiction to the FMC than the Federal Court. As a result there are only very limited circumstances in which it is possible to commence proceedings for review of migration decisions in the Federal Court; see s 476A(1)(b)-(d). The policy behind the Reform Act is made clear in the following passages from the Reform Bill EM : The key areas of reform in the Bill to improve migration litigation are: (i) directing migration cases to the FMC for more efficient handling Directing migration cases to the FMC is central to the Government's package of reforms for more efficient handling of migration cases. The FMC was established to resolve expeditiously a high volume of less complex and shorter matters, making it a suitable forum for most migration cases. The Federal Court will have limited jurisdiction under the Migration Act in relation to migration cases. This will comprise, first, complex migration cases transferred from the FMC to the Federal Court and, secondly, migration cases involving judicial review of decisions of the Administrative Appeals Tribunal (AAT) under section 500 of the Migration Act or decisions made personally by the Minister for Immigration and Multicultural and Indigenous Affairs under section 501 , 501A , 501B or 501C of the Migration Act . This second group of migration cases involve decisions not to grant or cancel a visa, or involve deportation of a person, on character grounds.... Consistent with the key reform of directing migration cases to the FMC, the Bill also channels nearly all migration cases remitted from the High Court directly to the FMC. Migration cases will only be remitted to the Federal Court where they involve judicial review of character-related decisions made by the AAT or the Minister personally. (ii) ensuring identical grounds of review in migration cases ... (iii) imposing uniform time limits in all migration cases The Bill includes amendments to impose uniform time limits for applications for judicial review of migration decisions in the FMC, the Federal Court (in the limited circumstances that migration cases will be commenced in that Court) and the High Court. Applications must be made within 28 days of an applicant having received actual notice of the decision he or she seeks to review. The Court may extend the 28 day time limit by a further period of up to 56 days provided the person seeking to file the application makes the request for an extension of time within 84 days of actual notification of the tribunal decision (or decision of the Minister or delegate) and the Court is satisfied that it is in the interests of the administration of justice to extend the time limit. 41 Having considered the words of s 476A(1)(a) , its context and the policy behind Division 2, I have concluded that the section applies only to proceedings pending in the FMC in relation to a migration decision which that Court has jurisdiction to review. The crucial words in the subsection that lead me to this conclusion are 'in relation to the [migration] decision'. A proceeding pending in the FMC cannot be in relation to a migration decision where that Court has no jurisdiction to review the decision. This conclusion is not inconsistent with the FMC having jurisdiction to transfer the present proceeding. In the FMC the filing of Mr Fisher's application gave rise to 'a proceeding pending' in the FMC but not one that was pending in relation to a migration decision . It was pending in relation to a jurisdictional question, namely whether the Court had jurisdiction to review the tribunal's decision. 43 While the intent to apply strict time limits to applications for judicial review is very clear in the Act, there is nothing to indicate that the legislature intended the consequences of filing an application in the wrong court to be so draconian. On the contrary, the provisions of ss 477 , 477A and 486A indicate that Parliament intended applications for judicial review of migration decisions to be subject to the same time limits and the same restrictions on extensions of time whether brought in the FMC, the Federal Court or the High Court. The recent High Court decision in Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14 , that s 486A is invalid as an impermissible restriction on the right of applicants to seek relief under s 75(v) of the Constitution , does not cast doubt on the Parliamentary intention which is made plain in the Reform Bill EM. Nor does it impugn the validity of the time limits imposed on applications to the FMC or to this Court. 44 I conclude therefore that while the Federal Magistrate was entitled to transfer the proceeding to this Court pursuant to s 39 of the Federal Magistrates Act , that transfer did not give this Court original jurisdiction under s 476A(1)(a) in relation to the decision of the Tribunal. Once the proceeding was transferred however, pursuant to O 82 r 3 of the Federal Court Rules , the proceeding was to be treated as if it had been instituted in this Court with the consequence that the application filed in the FMC is to be treated as an application made to this Court. As a result, the application falls within s 476A(1)(b) and the time limit imposed by s 477A for applications under s 476A(1)(b) applies. That being so, the applicant still requires an extension of time if his application is to be valid and there is no question of this Court making any order that subverts the time limits in s 477A. 45 As explained in [34] above, the application for review was required to be filed no later than 21 September 2006. Since that time limit was not met, Mr Fisher required an extension of time under s 477A(2) which had to be filed by 16 November 2006. As the application to the FMC was made on 11 October it was within that time limit. Even though the period of 84 days within which an application for an extension of time must be made has now expired, it is my view that I am still able to consider the application for an extension because it was made within that period. Counsel for the respondent, Mr Lloyd accepted that construction which is the construction preferred by his client as opposed to an alternative construction which he put to the Court for the sake of completeness. I do not propose to examine that alternative construction.


case_outcome: applied

case_text: Once the documents were filed in the FMC, that Court had, at the very least, a limited jurisdiction to consider whether it had jurisdiction to deal with the application for an extension of time and with the substantive issues raised by the application. This proposition was embraced by Katz J in Khatri v Price [1999] FCA 1289 ; (1999) 95 FCR 287 at 290 where his Honour said: ...every Australian court must have at least a limited jurisdiction in every proceeding in which its jurisdiction is purportedly invoked, namely, a jurisdiction to determine whether it has the jurisdiction which has been purportedly invoked. 14 Federal Magistrate Lloyd-Jones transferred the proceeding to this Court. His Honour did not publish reasons for this decision but presumably, and in my view, rightly, his Honour decided that jurisdiction both in relation to an extension of time and in relation to the substantive issues for review lay not with the FMC, but with the Federal Court of Australia. 15 The respondent accepts that his Honour had jurisdiction to decide the jurisdictional point but submits that, having reached the conclusion that he did not have any jurisdiction to review the Tribunal's decision (or at least having given considerable weight to the submission to that effect) his Honour had no choice but to dismiss the application. In the respondent's submission, the Federal Magistrate had no power to transfer the proceeding under s 39. Therefore the proper course for this Court is to dismiss the present proceedings. 16 Alternatively, the respondent submits, that if the Federal Magistrate had power to transfer the proceeding under s 39 , it could only do so in respect of the question that the FMC had jurisdiction to answer, namely whether the FMC had jurisdiction to review the Tribunal decision. Accordingly, it is submitted, the FMC has only transferred this jurisdictional question to this Court, and therefore this Court may only determine the issue of the Federal Magistrates Court's jurisdiction and may not review the decision of the Tribunal. As the answer to the question whether the FMC had jurisdiction to review the decision of the Tribunal is clearly in the negative, it is submitted that this Court should dismiss the matter. Counsel for the respondent, Mr S Lloyd, elaborated on this point in his written submissions: The Minister contends that there is no proper basis for a court that lacks jurisdiction in respect of a matter to be empowered to transfer the substantive proceeding to a court that has jurisdiction in respect of it. However the matter be analysed, this Court should determine that its jurisdiction is restricted to disposing of the purported transfer or limited transfer of the jurisdictional point that occurred.


case_outcome: distinguished

case_text: The core of the respondent's argument is that the transfer of the proceeding is itself an exercise of jurisdiction in relation to the 'substantive proceeding'. In support of this submission the respondent relied on Gummow J's proposition that, 'To remit or transfer a proceeding is to exercise jurisdiction in respect of it'; McIntosh v National Australia Bank (1988) 17 FCR 482 at 483. I respectfully agree with this proposition, however, I do not accept that McIntosh is authority for the respondent's submission that because the FMC had no jurisdiction to quell the controversy between the parties, it had no jurisdiction to transfer it to the Federal Court. 18 McIntosh raised questions of constitutional power that do not arise here. It concerned a claim of contravention of s 52 of the Trade Practices Act 1974 (Cth) as well as other claims which included breach of fiduciary duty, negligence and breach of contract. The respondent in McIntosh had raised the question of whether the accrued jurisdiction of the Court had been attracted in respect of the non-s 52 claims and contended that any jurisdictional difficulty could be resolved by transferring the proceeding to the appropriate State court pursuant to s 86A of the Trade Practices Act . 19 Gummow J observed that it was an essential step in the respondent's submissions that the non-s 52 claims fell within s 86A because they were 'any other matter for determination in the proceeding'. His Honour commented that there was a difficulty in construing s 86A(1) as authorising a transfer of a matter in respect of which the Court had no jurisdiction. His Honour explained the difficulty thus: If that matter was not within the accrued jurisdiction, it would not fall within any of the heads in ss 75 and 76 of the Constitution (Cth). Then in its operation in such cases, s 86A(1) of the TP Act would not be a law defining the jurisdiction of this Court or investing any State court with federal jurisdiction ... If it were to be construed as suggested, s 86A(1) would go beyond the operation of a law within the scope of s 77 of the Constitution . The incidental power in s 51(xxxix) of the Constitution would not appear to support a law authorising a federal court to exercise jurisdiction (whether by transferring the proceedings or deciding them itself) in respect of matters outside federal jurisdiction ... 20 There are two points that I would like to make about the decision in McIntosh : first, the question was one of construction of s 86A(1) which provided for transfer of matters; second, Gummow J was persuaded that the proper construction of the section could not be that it authorised the transfers under consideration, because that construction would mean that the section was constitutionally invalid. 21 In this case the question is also one of construction of a transfer provision, namely s 39 of the Federal Magistrates Act . This section provides: (1) If a proceeding is pending in the Federal Magistrates Court, the Federal Magistrates Court may, by order, transfer the proceeding from the Federal Magistrates Court to the Federal Court or the Family Court. (2) The Federal Magistrates Court may transfer a proceeding under this section: (a) on the application of a party to the proceeding; or (b) on its own initiative. (3) In deciding whether to transfer a proceeding to the Federal Court under subsection (1), the Federal Magistrates Court must have regard to: (a) any Rules of Court made for the purposes of subsection 40(2); and (b) whether proceedings in respect of an associated matter are pending in the Federal Court; and (c) whether the resources of the Federal Magistrates Court are sufficient to hear and determine the proceeding; and (d) the interests of the administration of justice. ... (6) An appeal does not lie from a decision of the Federal Magistrates Court in relation to the transfer of a proceeding under subsection (1). 22 The respondent points out that s 39 requires that there be a proceeding 'pending' in the FMC for the power of transfer to this Court to arise and submits that a proceeding cannot be 'pending' in a court that does not have jurisdiction in respect of it. This submission fails to take into account that while the Federal Magistrate did not have jurisdiction to review the Tribunal's decision, his Honour did have limited jurisdiction in respect of the proceeding. Mr Lloyd did not contend otherwise; in fact his submission was premised on the Federal Magistrate having jurisdiction to decide if his jurisdiction extended to the substantive issues. 23 That leaves open the question whether the Federal Magistrate had jurisdiction to transfer the matter to a court that has jurisdiction over the substantive issues. Mr Lloyd relied on McIntosh as authority that there was no such jurisdiction, however, as demonstrated above, in McIntosh that proposition depended on the construction of s 86A(1) of the Trade Practices Act . Section 39 is significantly different; it deals with the transfer from one court with federal jurisdiction to another. The constitutional difficulties that were pertinent to the construction of s 86A(1) are not relevant to its construction. 24 Section 39 applies to a proceeding that is 'pending' in the FMC. The Macquarie Dictionary gives the meaning of 'pending' as including 'remaining undecided, awaiting decision'. This is an appropriate description of the proceeding as it was until the Federal Magistrate made an order disposing of it. That order could have been to dismiss it or, as occurred, an order to transfer it to this Court. I see no reason why his Honour's jurisdiction did not extend to the latter order.


case_outcome: approved

case_text: The construction I have adopted is consistent with the views expressed on a number of occasions when the issue has come before the FMC; Stewart v Pegasus Investments & Holdings Pty Ltd [2004] FMCA 712 at [9] 15], O'Neill v Minister for Immigration and Multicultural Affairs [2006] FMCA 1912 at [11] [16]. Although there is no authority in this Court directly on point I note that in Ogawa v Phipps [2006] FCA 361 ; (2006) 151 FCR 311, which concerned a matter within the exclusive jurisdiction of the Federal Court, Finkelstein J made an order in the nature of mandamus requiring Phipps FM to order that the proceeding be transferred to the Federal Court. The matter was so transferred and addressed by the Federal Court in Ogawa v Registrar of the High Court of Australia [2006] FCA 607 , although ultimately it was dismissed by consent.


case_title: Ogawa v Registrar of the High Court of Australia [2006] FCA 607


case_title: Stewart v Pegasus Investments & Holdings Pty Ltd [2004] FMCA 712


case_text: Mr Nair placed considerable emphasis on his submission that the letter from the Tribunal misled the applicant by advising him that he could apply to the FMC or the Federal Court, thus creating the impression that he had a free choice between the two courts. It is not clear where this submission was intended to lead. At one stage Mr Nair was suggesting that the letter was so misleading as not to constitute notification and therefore the period within which applications for judicial review must be made had not yet started to run. Even if the letter were misleading in the manner suggested I would reject this submission but, in any event, I do not accept that the letter was misleading. While the opening sentence of the second paragraph (see [3] above) may be capable of creating that impression, read in its entirety, the letter does not do so. It certainly does not purport to give definitive advice about appeal rights; it advises the applicant that legal advice may be desirable and that further information can be obtained from the websites of both courts. As I have concluded that the letter was not misleading, the reasoning in Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386, on which the applicant relied, is not relevant to the present proceeding. 12 The respondent submitted that, as the documents were filed outside the 28 day period within which, pursuant to s 477(1), applications to the FMC can be made, at best they could only constitute an application for an extension of time under s 477(2). I accept that submission however I am inclined to the view that the documents were also capable of constituting an inchoate application should an extension of time be granted.


case_text: second respondent, Centrelink, has moved the Court for summary judgment under s 31A of the Federal Court of Australia Act 1976 (Cth) on the basis that the appeal filed by the appellant, Vitaly Kulik, has no reasonable prospects of success. The power conferred by s 31A extends to the summary dismissal of an appeal: see Bishop v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1118 at [12] . The power of a single judge to exercise this jurisdiction is conferred by s 25(2B)(aa) of the Federal Court of Australia Act 1976 . The judgment appealed from dismissed an application from the Administrative Appeals Tribunal on the ground that, while the Tribunal failed to comply with s 42A(4) of the Administrative Appeals Tribunal Act 1976 (Cth), it would have been futile in the circumstances to send the matter back to the Tribunal for the reason that the only decision open to the Tribunal was that it had no jurisdiction to entertain the review application made to it. Fundamental to her Honour's decision, after careful consideration of the Tribunal's decision, was her inability to discern an intelligible claim made by the appellant that could enliven the review jurisdiction of the Tribunal. Further, the documents that were filed before her Honour in support of the appeal to the Court did not in her Honour's view, despite her best endeavours, identify any sensible application. Before I turn to the appellant's Notice of Appeal, I should indicate that the decisions seemingly challenged by Mr Kulik relate to purported FOI requests which were refused by Centrelink. Something of their character is portrayed in the terms of the Notice of Appeal. The Grounds of Appeal are stated to be: Falsification of evidence by Second Responder (see Applicant's Affidavit-1, Affidavit-2, Affidavit-3 and Applicant's Written Submission). Sabotage of the Federal Court of Australia Proceedings by Second Responder (see Applicant's Affidavit-2, Affidavit-3, Applicant's Written Submission and other evidence: Ref. FCA-2001-1 =>FCA-2008-10). The text of the 4/9/2009 Judgement was copied from the Second Responder's documents and filibusters, including Second Responder's false evidence and misprints. E.g. the paragraph 7 of the Judgement refers to "direction hearing on 18 March, 2009". There was no direction hearing on 18 March, 2009. The main items of Applicant's evidence are Commonwealth Ombudsman reports. Justices Rares and Stone, obviously, have no experience and personal knowledge of the Second Responder's anti-justice operations and "legal" methods. Hence, they can not "understand" and "comprehend" evidence, submitted by Applicant. The orders sought are that: To appoint a justice, who has some knowledge and experience of the Second Responder's computer crimes. To review case (P)ACD 40 of 2008. To issue a restraining order, forbidding Second Responder to cut Applicant's access to medical system during Proceedings of Federal Court of Australia. It is now more than 4 months since the Second Responder disconnected access to all basic services (including Legal Aid), as described in the Applicant's Affidavit-2. It is apparent upon the face of the Notice of Appeal that it does not identify any ground upon which her Honour's discretionary decision not to remit the matter to the Tribunal could be said to disclose appellable error. It does not otherwise disclose any error in her Honour's treatment of the Tribunal's decision to dismiss the appellant's application to it. Equally the orders sought in the Notice are not ones which properly could be made in a matter such as the present. For my own part, I can discern no appellable error in her Honour's careful judgment. Both her Honour, and another judge of this Court, have made considerable efforts to enable the appellant, who is self represented, to identify a decision or decisions capable of being reviewed by the Tribunal. He has been unsuccessful in that endeavour. I am in the circumstances satisfied that the appellant has no reasonable prospect of successfully prosecuting the appeal, in consequence, I will order that the appeal be dismissed with costs. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate: Dated: 16 November 2009 Counsel for the Appellant: The Appellant did not appear. Counsel for the First Respondent: The First Respondent did not appear. Counsel for the Second Respondent: Mr J Bird Solicitor for the Second Respondent: Blake Dawson Date of Hearing: 16 November 2009 Date of Judgment: 16 November 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1324.html


case_title: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR

case_text: The Tribunal is not obliged to speculate on claims that did not squarely arise on the material before it and it is not open for the Appellant to now reformulate his claims on an ex post facto basis; NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263 ; (2004) 144 FCR 1 at [58] ; SDAQ v Minister for Immigration and Multicultural Affairs [2003] FCAFC 120 ; (2003) 199 ALR 265 at [19] ; S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 203 ALR 112 at [1] .


case_text: There is nothing before me which demonstrates that the Tribunal failed to comply with the provisions of s 424AA or otherwise failed to accord procedural fairness; NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 at [21] . This ground fails. 22 The appellant has not particularised the claim which he alleges was not considered by the Tribunal. The Tribunal made reasoned findings in respect to the Appellant's claims based on his religion and political opinion. The Federal Magistrate found at [43] that the Tribunal did not reach any conclusion as to the one child policy being a law of general application. Rather, the Tribunal found that there was no real chance that the appellant would suffer persecution in consequence of that policy if he returned to China.


case_text: The first respondent submits that this finding was based on the Tribunal's earlier finding that the appellant was not a practising Christian and member of an underground church in China and had not suffered persecution for that reason. The first respondent then characterises these findings as considerations of the appellant's motivation and beliefs as evidenced by his conduct in China and not his conduct in Australia. It submits that s 91R(3) does not apply to a person's conscientious beliefs or motivations for conduct; NBKT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 195 ; (2006) 156 FCR 419 at [96] and SZJGV at [25] and s 91R(3) should not operate so to oblige the Tribunal to disregard its own ultimate findings as to whether the appellant's conduct in Australia should be disregarded.


case_text: The first respondent submits that even if there has been a breach of s 91R(3) , the Court should refuse relief in its discretion. There is merit in the submission. I am satisfied that the findings in respect to the appellant's conduct in China would, independently of the findings as to his conduct in Australia, support the Tribunal's conclusions on the question of persecution: R v Commonwealth Court of Conciliation and Arbitration; ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33 ; (1949) 78 CLR 389 at 400; Stead v State Government Insurance Commission [1986] HCA 54 ; (1986) 161 CLR 141 at 145-6; Re Refugee Review Tribunal; ex parte AALA [2000] FCA 57 ; (2000) 204 CLR 82 at [104] , [131] and [211]; SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 at [80] , [174] and [211]; see also SZBYR v Minister for Immigration and Citizenship [2007] FCA 26 ; (2007) 235 ALR 609 at [29] .


case_title: R v Commonwealth Court of Conciliation and Arbitration; ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33 ; (1949) 78 CLR 389


case_title: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162


case_title: SDAQ v Minister for Immigration and Multicultural Affairs [2003] FCAFC 120 ; (2003) 199 ALR 265


case_title: Stead v State Government Insurance Commission [1986] HCA 54 ; (1986) 161 CLR 141


case_text: The appellant has not particularised the alleged breach of s 424AA. The Court below observed, correctly in my view, that no s 424A(1) obligations arose from the Tribunal's appraisal of the Appellant's testimony: SZBYR v Minister for Immigration and Citizenship [2007] FCA 26 ; (2007) 235 ALR 609 at [18] and SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 at [27] . Section 424AA could only apply in this case to the evidence of the appellant's son. Two matters emerge in that respect. First the testimony given by his son did not, in its terms, constitute a basis for an undermining, denial or rejection of the Appellant's claims. It did not form part of the Tribunal's reasons for decision: SZBYR at [17]. Second, the Tribunal clearly complied with the procedure prescribed by s 424AA. Specifically as the Federal Magistrate observed [22]-[23] the Tribunal explained to the appellant and invited his response to its concerns that: ... it may not accept the son's evidence and may find in any case that his son's evidence was very vague, including that he also could not identify which group the applicant belonged to. ... The appellant stated that he would like more time to comment, but wished to do so at the current hearing. The Tribunal ... considered that he did not reasonably require an adjournment of the hearing. 45 The first respondent submits that even if there has been a breach of s 91R(3) , the Court should refuse relief in its discretion. There is merit in the submission. I am satisfied that the findings in respect to the appellant's conduct in China would, independently of the findings as to his conduct in Australia, support the Tribunal's conclusions on the question of persecution: R v Commonwealth Court of Conciliation and Arbitration; ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33 ; (1949) 78 CLR 389 at 400; Stead v State Government Insurance Commission [1986] HCA 54 ; (1986) 161 CLR 141 at 145-6; Re Refugee Review Tribunal; ex parte AALA [2000] FCA 57 ; (2000) 204 CLR 82 at [104] , [131] and [211]; SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 at [80] , [174] and [211]; see also SZBYR v Minister for Immigration and Citizenship [2007] FCA 26 ; (2007) 235 ALR 609 at [29] .


case_text: The first respondent submits, for the following reasons, that s 91R(3) was not engaged in the present case. If the Tribunal had properly considered s 91R(3) it would not have applied it. Section 91R(3) is confined in its operation to sur place claims . The appellant did not make a sur place claim based on his conduct in Australia and therefore s 91R(3) did not arise: SZHFE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2006] FCA 648 at [30] ; SZHFE v Minister for Immigration and Citizenship [2007] HCA Trans 10 ; SZGDJ v Minister for Immigration and Citizenship [2008] FCA 722 at [17] - [22] . The appellant relied on his conduct in Australia, merely as corroboration of his claims to being a Christian in China. He did not claim to have a fear of persecution in China based on his conduct in Australia. Accordingly, the Tribunal could not have found that the appellant's fears for reason of his Christian conduct in Australia were well-founded and Convention based, because the appellant did not claim to hold such fears based on his conduct in Australia. Accordingly, s 91R(3) had no application. 29 Likewise, the decision of Weinberg J in SZGDJ v Minister for Immigration and Citizenship [2008] FCA 722 did not involve a sur place claim. The conduct in that case involved a failure by the appellant whilst in Australia to involve himself in the activities of an Awami League support group in Australia. It is not difficult to appreciate why this did not attract the exclusionary operation of s 91R(3). 30 Weinberg J did refer in obiter to the second-reading speech relating to the introduction of s 91R that subsection (3) was intended to deal with sur place claims. However, the question whether conduct amounting to purported corroborative evidence of alleged refugee status did not arise for consideration in that case. I do not consider that his Honour was expressing a considered opinion as to the reach of s 91R(3).


case_text: The appellant has not particularised the alleged breach of s 424AA. The Court below observed, correctly in my view, that no s 424A(1) obligations arose from the Tribunal's appraisal of the Appellant's testimony: SZBYR v Minister for Immigration and Citizenship [2007] FCA 26 ; (2007) 235 ALR 609 at [18] and SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 at [27] . Section 424AA could only apply in this case to the evidence of the appellant's son. Two matters emerge in that respect. First the testimony given by his son did not, in its terms, constitute a basis for an undermining, denial or rejection of the Appellant's claims. It did not form part of the Tribunal's reasons for decision: SZBYR at [17]. Second, the Tribunal clearly complied with the procedure prescribed by s 424AA. Specifically as the Federal Magistrate observed [22]-[23] the Tribunal explained to the appellant and invited his response to its concerns that: ... it may not accept the son's evidence and may find in any case that his son's evidence was very vague, including that he also could not identify which group the applicant belonged to. ... The appellant stated that he would like more time to comment, but wished to do so at the current hearing. The Tribunal ... considered that he did not reasonably require an adjournment of the hearing.


case_text: This extended construction was applied by the Full Court in SZJGV at [27] where it found that the Tribunal had had regard to the appellant's conduct in Australia, if only for the limited purpose of assessing the credibility of his claim to have been a Falun Gong practitioner in China and to have suffered persecution for having done so. The Full Court held that by so doing the Tribunal contravened s 91R(3) of the Act . This construction of s 91R(3) , extending beyond refugee sur place claims, is consistent with the approach taken by Driver FM in SZHAY v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 199 FLR 148 at [32] to which the Full Court referred with apparent approval in SZJGV at [10].


case_text: The first respondent submits, for the following reasons, that s 91R(3) was not engaged in the present case. If the Tribunal had properly considered s 91R(3) it would not have applied it. Section 91R(3) is confined in its operation to sur place claims . The appellant did not make a sur place claim based on his conduct in Australia and therefore s 91R(3) did not arise: SZHFE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2006] FCA 648 at [30] ; SZHFE v Minister for Immigration and Citizenship [2007] HCA Trans 10 ; SZGDJ v Minister for Immigration and Citizenship [2008] FCA 722 at [17] - [22] . The appellant relied on his conduct in Australia, merely as corroboration of his claims to being a Christian in China. He did not claim to have a fear of persecution in China based on his conduct in Australia. Accordingly, the Tribunal could not have found that the appellant's fears for reason of his Christian conduct in Australia were well-founded and Convention based, because the appellant did not claim to hold such fears based on his conduct in Australia. Accordingly, s 91R(3) had no application.


case_title: SZHFE v Minister for Immigration and Citizenship [2007] HCA Trans 10


case_text: Although no ground of appeal was raised concerning jurisdictional error by the Tribunal for breaching s 91R(3) of the Act , the first respondent has quite properly raised this for the Court's consideration in light of the recent Full Federal Court decision reported as SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105 ; (2008) 102 ALD 226. The report, involving the proper construction of s 91R(3) , concerns three appeals: one was an application for leave to appeal in respect of which leave was granted. The other two appellants were SZJXO and SZKBK. 26 Section 91R(3) relevantly provides that: (3) For the purposes of the application of this Act and the regulations to a particular person: (a) in determining whether the person has a well founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol; disregard any conduct engaged in by the person in Australia unless: (b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol. 28 I do not agree. SZHFE did not concern a sur place claim. The Tribunal in that case found that the applicant's conduct in Australia was not an attempt to enhance his protection visa claims but rather was an attempt to achieve permanent residency by another route. Accordingly, s 91R(3) did not require that his conduct be disregarded. There appears to have been very little argument before Jacobson J as to the proper construction of s 91R(3). His Honour did however express his opinion that " s 91R(3) is only enlivened where an applicant seeks to rely on conduct in Australia to support a claim to have a well-founded fear of persecution". I do not apprehend his Honour to be saying that the provision is limited in its effect to conduct in support of a sur place claim. Nor is this opinion necessarily inconsistent with the construction of s 91R(3) articulated in SZJGV by the Full Court. 31 Contrary to the first respondent's submission, the court in SZJGV held that s 91R(3) , upon its proper construction, is not limited to sur place claims which depend on conduct deliberately engaged in by an applicant in Australia to attract the adverse attention of the authorities in his or her country of origin and thereby support a claim to be a refugee. It said at [24]: Section 91R(3) was intended to and does require such conduct to be disregarded when assessments are being made. It is not (although it could have been) confined in its terms to conduct which may render a person a refugee sur place. Decision-makers are, subject to the proviso in para (b), required to disregard "any" conduct in Australia by an applicant. The conduct is to be disregarded in determining "whether" an applicant has a well-founded fear of persecution for a convention reason. The conduct may suggest that such a fear is or is not well-founded. In either case it must be disregarded. If the tribunal brings the conduct into account it will contravene s 91R(3). 32 This extended construction was applied by the Full Court in SZJGV at [27] where it found that the Tribunal had had regard to the appellant's conduct in Australia, if only for the limited purpose of assessing the credibility of his claim to have been a Falun Gong practitioner in China and to have suffered persecution for having done so. The Full Court held that by so doing the Tribunal contravened s 91R(3) of the Act . This construction of s 91R(3) , extending beyond refugee sur place claims, is consistent with the approach taken by Driver FM in SZHAY v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 199 FLR 148 at [32] to which the Full Court referred with apparent approval in SZJGV at [10]. 36 The first respondent submits that this finding was based on the Tribunal's earlier finding that the appellant was not a practising Christian and member of an underground church in China and had not suffered persecution for that reason. The first respondent then characterises these findings as considerations of the appellant's motivation and beliefs as evidenced by his conduct in China and not his conduct in Australia. It submits that s 91R(3) does not apply to a person's conscientious beliefs or motivations for conduct; NBKT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 195 ; (2006) 156 FCR 419 at [96] and SZJGV at [25] and s 91R(3) should not operate so to oblige the Tribunal to disregard its own ultimate findings as to whether the appellant's conduct in Australia should be disregarded. 38 This mirrors the situation considered by the Full Court in SZJGV in the appeal of SZJXO at [28]. The Court there said: The tribunal did not have regard to the appellant's conduct in Australia for the purpose of deciding whether or not he had practised Falun Gong in China before coming to Australia. It did, however, have regard to his conduct in Australia for the purpose of determining that there was no reason to believe that he would be persecuted by reason of his Falun Gong activities should be (sic) return to China. ... The tribunal thus brought into account, to the appellant's detriment, his conduct in Australia when determining whether he had a well-founded fear of persecution should he return to China. The tribunal thereby contravened s 91R(3). In doing so it made a jurisdictional error. (Emphasis added) 39 The evidence of the appellant as to his conduct in Australia is correctly characterised, in my opinion, as intended to have been corroborative of his evidence that he was a genuinely committed Christian in China and to have been persecuted there for that reason. No claim was made by him that he feared persecution because of his involvement as a Christian in Australia. Nonetheless the Tribunal made a finding to that effect as set out at para [35] above. 40 Conduct under either head, where the proviso under s 91R(3)(b) has application, as here, must be disregarded. The Tribunal committed jurisdictional error by contravening s 91R(3) when it relied upon findings as to the appellant's alleged practice of Christianity in Australia as a basis for finding that he would not practice Christianity in China upon his return and that accordingly there was no real chance that he would be persecuted for a Convention reason based in his religious belief then, or in the reasonably foreseeable future. 41 The appellant's conduct was not addressed as evidence to support a sur place claim but only as corroborative evidence of his claims to have practised Christianity in China. Nonetheless, as SZJGV has made clear, s 91R(3) is properly engaged even in those circumstances. 42 Counsel for the Minister in SZJGV did not submit that the Tribunal's decisions could, despite the breach of s 91R(3) , be supported independently by reason of other findings. 43 Counsel for the first respondent in this case submits to the contrary. 44 In this case, unlike SZJXO, the finding that the appellant was not a committed Christian in China depended on primary findings to which I have referred which were quite discrete from the findings concerning his attendance at church services in Australia. The finding as to his alleged practice of Christianity in China did not depend upon any conduct in Australia. The relevant findings accordingly stand apart. In SZJXO the finding that there was no real chance of the appellant being persecuted by reason of her religious beliefs on her return to China was derived from evidence which was intermixed including her conduct in Australia: [28]. The position was the same in the appeal of SZKBK at [30].


case_text: Section 424AA does not impose any obligation on the Tribunal. It enables the Tribunal, if it chooses to do so, to give oral particulars of adverse information to an applicant at a hearing that may otherwise need to be given in writing under s 424A(1): SZMCD v Minister for Immigration and Citizenship [2008] FMCA 1039 at [56] . If the Tribunal chooses to give oral particulars of information under s 424AA but fails to comply with the requirements of s 424AA(b) , the consequence is not that it falls into jurisdictional error. The consequence is that s 424A (2A) is not engaged; SZMCD at [68]. This is in light of the Explanatory Memorandum. (The abbreviation "RRT" refers to the Tribunal): ... Section 424AA provides a new discretion for the RRT to orally give information and invite an applicant to comment on or respond to the information at the time that the applicant is appearing before the RRT in response to an invitation issued under section 425. This will complement the RRT's existing obligation under section 424A , in that, if the RRT does not orally give information and seek comments or a response from an applicant under section 424AA , it must do so in writing, under section 424A. The corollary is that if the RRT does give clear particulars of the information and seek comments or a response from an applicant under section 424AA , it is not required to give the particulars under section 424A.


case_title: S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 203 ALR 112


case_text: Finally, the Commissioner's reference to and reliance upon the parties' prior and subsequent conduct is misplaced. Where, as here, the language in context is not ambiguous, the Court may not look at the prior and subsequent conduct of the parties to interpret the Occupational Licence Agreement: Administration of Papua and New Guinea v Daera [1973] HCA 59 ; (1973) 130 CLR 353 at 446 (per Gibbs J); Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24 ; (1982) 149 CLR 337 at 348 (per Mason J) and L Schuler AG v Wickman Machine Tool Sales Ltd [1973] UKHL 2 ; [1974] AC 235 at 261; cf Sinclair, Scott & Co Ltd v Naughton [1929] HCA 34 ; (1929) 43 CLR 310 at 327; Farmer v Honan [1919] HCA 13 ; (1919) 26 CLR 183 at 197. Such conduct cannot be used to generate disputes about the meaning of unambiguous terms. Such an approach would be inconsistent with the " general test of objectivity [that] is of pervasive influence in the law of contract" : Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (No 2) [2004] HCA 55 ; (2005) 218 CLR 471 at [31] - [36] and, in particular at [34] quoting Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 at 549 (per Gleeson CJ).


case_outcome: followed

case_text: Clause 5.2 cannot be considered in isolation. The whole of the Occupational Licence Agreement is relevant together with the other documents to which it refers and which were executed "contemporaneously": Chacmol Holdings Pty Ltd v Handberg (2005) 215 ALR 748 at [63] - [78] (per North and Dowsett JJ) (collecting and discussing authority for the proposition that contemporaneously executed contracts forming part of the same transaction should be construed as one instrument). It was not suggested that anything turns on the order in which documents were executed or that "contemporaneously" means anything more precise than "bearing the same date". The other documents fitting this description of being executed "contemporaneously" include the documents listed in [19] above as having been executed on 14 December 1994. Further, construction of an agreement as a whole necessarily involves giving effect to each part of it in relation to all other parts of it: Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36 ; (1973) 129 CLR 99 at 109 (per Gibbs J) and Wilkie v Gordian Runoff Ltd [2005] HCA 17 ; (2005) 221 CLR 522 at [15] - [16] .


case_title: Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540


case_text: The process of identifying a 'tax benefit' is prescribed by s 177C. It requires an assessment of what might reasonably be expected to have happened if the scheme had not been entered into or carried out. This process has been described as the identification of the 'alternative postulate': Hart at [66] and Macquarie Finance Ltd v Commissioner of Taxation [2005] FCAFC 205 ; (2005) 146 FCR 77 at [204] . This is an objective assessment: Calder v Commissioner of Taxation (2005) 226 ALR 643 at [95]; Macquarie at [212]; Pridecraft Pty Ltd v Federal Commissioner of Taxation (2004) 213 ALR 450 at [64]-[65].


case_text: This distinction between purchase and use explains why interest and rental outgoings are on revenue account, even though each can be said, in one sense, to secure capital advantages, namely a principal sum for use in a business and possession of a structural asset such as land or a building: see Cape Flattery Silica Mines Pty Ltd v FCT (1997) 36 ATR 360 at 373. 87 The Commissioner contended, however, that the Prepayment: (1) formed part of the consideration for the grant of the Casino Licence; (2) was made for the purpose of obtaining a lease of the Permanent Casino Site; and / or (3) was made in order to obtain the exclusivity of the casino licence in the first 12 years of operation, and was therefore an affair of capital. 88 The Commissioner put those contentions on two bases: first, by reference to the transaction documents and secondly, by reference to other "contemporaneous" documents. The contentions are rejected on both bases.


case_title: Chacmol Holdings Pty Ltd v Handberg (2005) 215 ALR 748


case_text: In support of the contention that the Prepayment was in the nature of a capital payment, the Commissioner also relied on the "surrounding circumstances" or "background", arguing that the legal agreement pursuant to which the Prepayment was made did not reflect the whole arrangement between the parties: City Link Melbourne Ltd v Commissioner of Taxation [2004] FCAFC 272 ; (2004) 141 FCR 69 at [46] (" City Link (Federal Court) "). The "surrounding circumstances" or "background" were said by the Commissioner to comprise documents temporally proximate to the Transaction Documents containing descriptions of the Prepayment and the benefit sought to be obtained from making it. Three documents in particular were referred to by the Commissioner: an explanatory memorandum produced by Star City's legal advisors on 19 April 1994, three days before Star City made its final offer; a letter written by Star City's legal advisors to the NSW State Revenue Office on 27 April 1994 (five days after Star City made its final offer); and a letter written by Star City to the NSW Treasurer on 13 December 1994, the day before the Transaction Documents were executed: see Annexure at [42]-[44], [50]-[51] and [59]-[60] 101 The "surrounding circumstances" or "background" relied on by the Commissioner is irrelevant to the proper characterisation of the Prepayment because the advantage sought by the Prepayment is capable of identification and characterisation by reference to the Leases and the Occupational Licence Agreement and, if necessary, the Transaction Documents as a whole: City Link (Federal Court) at [44]-[45], approved by Citylink (High Court) at [120], [151] and [154].


case_title: Cliffs International Inc v FCT [1979] HCA 8 ; (1979) 142 CLR 140 (Stephens J dissenting)

case_text: This distinction between acquisition and use was articulated by Dixon J in Sun Newspapers : " whether on the one hand [the payment] is a capitalized sum payable by deferred instalments or on the other hire or rent accruing de die in diem, or at other intervals, for the use of the thing " (363). More recently, the test was re-stated by Stephen J in his dissenting judgment in Cliffs International Inc v FCT [1979] HCA 8 ; (1979) 142 CLR 140 at 160 where his Honour said: "The important distinction between ... [recurrent capital outgoings] ... and instances of leases of land or the licensing of patents is that in those cases rent or royalties are paid for the right to occupy or use the property or rights of another. But here the vendors, upon exercise of the option, retained nothing and the taxpayer thereafter made no use of anything to which the vendors retained any claim." See also Gibbs ACJ in Federal Commissioner of Taxation v South Australian Battery Makers Pty Ltd [1978] HCA 32 ; (1978) 140 CLR 645 at 655. 94 The fact that the rent was paid by way of a lump sum does not detract from the fact that rent was paid to secure the use of the Premises for the period to which the payment related. Unlike the vendors in Cliffs International and Colonial, here the State retains title to that part of the profit-yielding structure from which Star City derives its income; the Premises were merely made available for use by SHCP for the duration of the Primary Rental Period. In addition to not receiving title to the Premises at the end of the lease term, SHCP received no option to purchase (whether at a below-market price or otherwise), and it was not suggested that 99 years constitutes all or a major portion of the life of the Premises.


case_text: An examination of the character of the advantage sought is assisted by asking two questions: (1) what was the Prepayment really paid for? and (2) is what it was really paid for, in truth and in substance, a capital asset?: Colonial Mutual Life Assurance Society Ltd v Federal Commissioner of Taxation [1953] HCA 68 ; (1953) 89 CLR 428 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 FCT v Raymor (NSW) Pty Ltd (1990) 24 FCR 90 at 99 (per Davies, Gummow and Hill JJ) citing Dixon J in Hallstroms Pty Ltd v Federal Commissioner of Taxation [1946] HCA 34 ; (1946) 72 CLR 634 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 (High Court) at [148] (per Crennan J) (with whom Gleeson CJ, Gummow, Heydon and Callinan JJ agreed). 94 The fact that the rent was paid by way of a lump sum does not detract from the fact that rent was paid to secure the use of the Premises for the period to which the payment related. Unlike the vendors in Cliffs International and Colonial, here the State retains title to that part of the profit-yielding structure from which Star City derives its income; the Premises were merely made available for use by SHCP for the duration of the Primary Rental Period. In addition to not receiving title to the Premises at the end of the lease term, SHCP received no option to purchase (whether at a below-market price or otherwise), and it was not suggested that 99 years constitutes all or a major portion of the life of the Premises.


case_text: Instead, the payment secured the use of the Premises for the purposes of generating income from the casino. There was no allegation and could be no allegation that the Prepayment of rent was a sham. The two leases (the Construction Lease and the Freehold Lease) were necessary and existed, the rent was an agreed amount, was payable and was paid. Although labels can never be determinative ( Jupiters Ltd v Deputy Commissioner of Taxation [2002] FCAFC 206 ; (2002) 118 FCR 163 at [26] ; South Australian Battery Makers at 655 and Commissioner of Taxation (Cth) v Broken Hill Pty Co Ltd (2000) 179 ALR 593 at [36]), the Prepayment was in this case, as it was described a prepayment of rent.


case_text: The differences in language between the two sections are not material: s 1-3 of the 1997 Act ; the Explanatory Memorandum to the Tax Law Improvement Bill 1996 at 42; and Commissioner of Taxation v Citylink Melbourne Ltd (2006) 228 CLR 1 at [90] (" Citylink (High Court) ").


case_title: Commissioner of Taxation (Cth) v South Australian Battery Makers Pty Ltd [1978] HCA 32 ; (1978) 140 CLR 645

case_text: This distinction between acquisition and use was articulated by Dixon J in Sun Newspapers : " whether on the one hand [the payment] is a capitalized sum payable by deferred instalments or on the other hire or rent accruing de die in diem, or at other intervals, for the use of the thing " (363). More recently, the test was re-stated by Stephen J in his dissenting judgment in Cliffs International Inc v FCT [1979] HCA 8 ; (1979) 142 CLR 140 at 160 where his Honour said: "The important distinction between ... [recurrent capital outgoings] ... and instances of leases of land or the licensing of patents is that in those cases rent or royalties are paid for the right to occupy or use the property or rights of another. But here the vendors, upon exercise of the option, retained nothing and the taxpayer thereafter made no use of anything to which the vendors retained any claim." See also Gibbs ACJ in Federal Commissioner of Taxation v South Australian Battery Makers Pty Ltd [1978] HCA 32 ; (1978) 140 CLR 645 at 655.


case_text: Finally, the Commissioner's reference to and reliance upon the parties' prior and subsequent conduct is misplaced. Where, as here, the language in context is not ambiguous, the Court may not look at the prior and subsequent conduct of the parties to interpret the Occupational Licence Agreement: Administration of Papua and New Guinea v Daera [1973] HCA 59 ; (1973) 130 CLR 353 at 446 (per Gibbs J); Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24 ; (1982) 149 CLR 337 at 348 (per Mason J) and L Schuler AG v Wickman Machine Tool Sales Ltd [1973] UKHL 2 ; [1974] AC 235 at 261; cf Sinclair, Scott & Co Ltd v Naughton [1929] HCA 34 ; (1929) 43 CLR 310 at 327; Farmer v Honan [1919] HCA 13 ; (1919) 26 CLR 183 at 197. Such conduct cannot be used to generate disputes about the meaning of unambiguous terms. Such an approach would be inconsistent with the " general test of objectivity [that] is of pervasive influence in the law of contract" : Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (No 2) [2004] HCA 55 ; (2005) 218 CLR 471 at [31] - [36] and, in particular at [34] quoting Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 at 549 (per Gleeson CJ). 61 As to the evidence of prior conduct (the 13 December 1994 letter), although the Commissioner submitted that the letter explicitly states that SHCP was the party liable for the Prepayment, the inferences that the Commissioner sought to draw from the letter are not open on the face of it. First, the letter was sent by Star City to the Treasurer of New South Wales, as the CCA's nominated recipient of the Prepayment. The letter was not a communication between the parties to the Occupational Licence Agreement. As such, it is not relevant to the proper construction of cl 5.2 of the Occupational Licence Agreement. It does not and cannot provide evidence of the objective factual background known to the parties at or before the date of the Agreement. The letter does not form part of the relevant factual matrix in which the Agreement was set which might highlight the context in which the words were used and the purpose for which they were chosen: Codelfa Construction at 401. 62 Secondly, the letter was concerned with and addressed an issue separate from the use to which the Commissioner sought to put it. The letter dealt with the method by which the Prepayment was to be paid. The fact that the letter described that issue in a particular way does not point to the conclusion that the Commissioner sought to draw from it that the party obliged to make the payment had been absolved of liability or was not in fact liable. 63 Thirdly, even if the letter were to be considered as part of some relevant factual matrix, it would not assist in resolving the question of the proper construction of the Occupational Licence Agreement. The letter was an attempt by Star City to gain leverage in its bargaining with the CCA in circumstances where it was the preferred candidate for the grant of the casino licence and, if successful, would be required to pay the Prepayment. The letter was an attempt by Star City to secure repayment of the Prepayment if a possible legal challenge to the grant of such a licence, by an opposition bidding consortium associated with the late Mr Kerry Packer, had been successful. Such a challenge was made although it was unsuccessful: Darling Casino Ltd v New South Wales Casino Control Authority [1997] HCA 11 ; (1997) 191 CLR 602. Negotiations of this nature are evidence of no more than the expectations of the parties and cannot be used to construe the meaning of the written agreement: Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd [1979] HCA 51 ; (1979) 144 CLR 596 at 606 and Codelfa at 352.


case_text: Thirdly, even if the letter were to be considered as part of some relevant factual matrix, it would not assist in resolving the question of the proper construction of the Occupational Licence Agreement. The letter was an attempt by Star City to gain leverage in its bargaining with the CCA in circumstances where it was the preferred candidate for the grant of the casino licence and, if successful, would be required to pay the Prepayment. The letter was an attempt by Star City to secure repayment of the Prepayment if a possible legal challenge to the grant of such a licence, by an opposition bidding consortium associated with the late Mr Kerry Packer, had been successful. Such a challenge was made although it was unsuccessful: Darling Casino Ltd v New South Wales Casino Control Authority [1997] HCA 11 ; (1997) 191 CLR 602. Negotiations of this nature are evidence of no more than the expectations of the parties and cannot be used to construe the meaning of the written agreement: Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd [1979] HCA 51 ; (1979) 144 CLR 596 at 606 and Codelfa at 352.


case_title: Duke of Westminster's Case [1936] AC 1

case_text: Moreover, even if the "surrounding circumstances" or "background" were examined, they do not alter the identification of, or the character of, the advantage sought by the Prepayment. The three documents referred to in [100] above cannot be said to constitute the " whole factual matrix of which the [Leases and the Occupational Licence Agreement] forms part ": FCT v Cooling (1990) 22 FCR 42 at 51-53 citing Duke of Westminster's Case [1936] AC 1. The documents by their nature and content do not form part of the factual matrix. None of the documents was sent by one contracting party to any other contracting party or was executed by the contracting parties. I considered the letter sent by Star City to the NSW Treasurer on 13 December 1994 in pars [61] to [63] above. The issues identified in relation to that document apply equally to the 19 April 1994 and 27 April 1994 letters. Moreover, even if the documents did form part of the factual matrix, they form just that only part. It is not open to either party to pick and choose from the factual matrix.


case_title: EA Greenwood (NSW) Pty Ltd v FCT 80 ATC 4039; (1980) 10 ATR 571

case_text: Whether the scheme identified by the Commissioner is a scheme within the meaning of s 177A is a question of fact: Walters v Commissioner of Taxation [2007] FCA 1270 at [59] - [60] . Where there is no evidence of an express agreement or arrangement, the question is whether an inference as to the existence of a scheme can be drawn from all the facts proved: EA Greenwood (NSW) Pty Ltd v FCT 80 ATC 4039 at 4041-2; (1980) 10 ATR 571 at 573-574 citing Federal Commissioner of Taxation v Cooper Brookes (Wollongong) Pty Ltd (1979) 10 ATR 128 (Full Court of the Federal Court).


case_title: Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (No 2) [2004] HCA 55 ; (2005) 218 CLR 471


case_title: Esso Australia Resources Ltd v FCT (1998) 84 FCR 541


case_title: FCT v Cooling (1990) 22 FCR 42


case_text: That the series of steps identified must constitute of itself one and only one "scheme", "plan" or "arrangement" (see ss 177A(3) and (5) and FCT v Consolidated Press Holdings Ltd [2001] HCA 32 ; (2001) 207 CLR 235 at 254 [52] and 264 [96]) is made clear by the fact that the dominant purpose under s 177D of the 1936 Act is usually determined at the time the scheme is entered into: FCT v Mochkin [2003] FCAFC 15 ; (2003) 127 FCR 185 at [45] ; Vincent v FCT [2002] FCAFC 291 ; (2002) 124 FCR 350 at 372-373. In other words, the scheme must be identified and the identified scheme must exist from the outset.


case_text: The sections contain two "positive limbs": outgoings are deductible to the extent that they are incurred in gaining or producing assessable income (the first limb) or necessarily incurred in carrying on a business for the purposes of gaining or producing assessable income (the second limb): Ronpibon Tin NL and Tongkah Compound NL v Federal Commissioner of Taxation [1949] HCA 15 ; (1949) 78 CLR 47 at 57; FCT v Payne [2001] HCA 3 ; (2001) 202 CLR 93 at 98; Fletcher v Federal Commissioner of Taxation [1991] HCA 42 ; (1993) 173 CLR 1 at 16-17 and John Fairfax & Sons Pty Ltd v Federal Commissioner of Taxation [1959] HCA 4 ; (1959) 101 CLR 30 at 40. The sections also relevantly contain one "negative limb": outgoings are not deductible to the extent that they are outgoings of capital or of a capital nature. 127 That the series of steps identified must constitute of itself one and only one "scheme", "plan" or "arrangement" (see ss 177A(3) and (5) and FCT v Consolidated Press Holdings Ltd [2001] HCA 32 ; (2001) 207 CLR 235 at 254 [52] and 264 [96]) is made clear by the fact that the dominant purpose under s 177D of the 1936 Act is usually determined at the time the scheme is entered into: FCT v Mochkin [2003] FCAFC 15 ; (2003) 127 FCR 185 at [45] ; Vincent v FCT [2002] FCAFC 291 ; (2002) 124 FCR 350 at 372-373. In other words, the scheme must be identified and the identified scheme must exist from the outset.


case_text: An examination of the character of the advantage sought is assisted by asking two questions: (1) what was the Prepayment really paid for? and (2) is what it was really paid for, in truth and in substance, a capital asset?: Colonial Mutual Life Assurance Society Ltd v Federal Commissioner of Taxation [1953] HCA 68 ; (1953) 89 CLR 428 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 FCT v Raymor (NSW) Pty Ltd (1990) 24 FCR 90 at 99 (per Davies, Gummow and Hill JJ) citing Dixon J in Hallstroms Pty Ltd v Federal Commissioner of Taxation [1946] HCA 34 ; (1946) 72 CLR 634 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 (High Court) at [148] (per Crennan J) (with whom Gleeson CJ, Gummow, Heydon and Callinan JJ agreed).


case_title: Federal Commissioner of Taxation v Cooper Brookes (Wollongong) Pty Ltd (1979) 10 ATR 128


case_text: As Gummow and Hayne JJ said in Federal Commissioner of Taxation v Hart [2004] HCA 26 ; (2004) 217 CLR 216 at [43] : "This definition [of scheme] is very broad. It encompasses not only a series of steps which together can be said to constitute a 'scheme' or a 'plan' but also (by its reference to action in the singular) the taking of but one step." 126 The Commissioner is under no obligation to show a series of steps to prove a scheme. However, if (as here) he elects to rely upon multiple actions, there must be a connection between those actions because otherwise they do not constitute "a scheme, plan or course of action": Commissioner of Taxation (Cth) v Peabody [1994] HCA 43 ; (1994) 181 CLR 359 at 382-384 and Hart at [43] and [55]. A series of disjointed or unconnected steps could not amount to a scheme. That is because the existence of a scheme and its identification for the purposes of s 177A is a question of fact to be determined by the evidence: it is not a question of abstracting bits from what actually happened. 132 As Gummow and Hayne JJ said in Hart at [52]: "There is no doubt that 'tax laws affect the shape of nearly every business transaction' ( Frank Lyon Co v United States (1978) 435 US 561 at 580, cited in Spotless [1996] HCA 34 ; (1996) 186 CLR 404 at 416). But as was said in the joint reasons in Spotless (at 416) "A particular course of action may be, to use a phrase found in the Full Court judgments, both 'tax driven' and bear the character of a rational commercial decision. The presence of the latter characteristic does not determine the answer to the question whether, within the meaning of Pt IVA , a person entered into or carried out a 'scheme' for the 'dominant purpose' of enabling the taxpayer to obtain a 'tax benefit' . (Emphasis added.)" Always the question must be whether the terms of the Act apply to the facts and circumstances of the particular case." 134 In addition, even if one or more of the schemes was capable of being a scheme for the purposes of Part IVA , Star City did not obtain a tax benefit in relation to it. The Commissioner contended that in determining the answer to that question, it was necessary to construe and apply Pt IVA according to its terms: Federal Commissioner of Taxation v Spotless Services Ltd [1996] HCA 34 ; (1996) 186 CLR 404 at 414 and Federal Commissioner of Taxation v Hart [2004] HCA 26 ; (2004) 217 CLR 216 at [51] . So much may be accepted. 135 The process of identifying a 'tax benefit' is prescribed by s 177C. It requires an assessment of what might reasonably be expected to have happened if the scheme had not been entered into or carried out. This process has been described as the identification of the 'alternative postulate': Hart at [66] and Macquarie Finance Ltd v Commissioner of Taxation [2005] FCAFC 205 ; (2005) 146 FCR 77 at [204] . This is an objective assessment: Calder v Commissioner of Taxation (2005) 226 ALR 643 at [95]; Macquarie at [212]; Pridecraft Pty Ltd v Federal Commissioner of Taxation (2004) 213 ALR 450 at [64]-[65]. 148 Section 177D(b) is not directed at attributing a purpose to "the scheme": Hart at [63]. The test of purpose is objective. Actual subjective purposes are irrelevant: Hart at [65]. And if there is more than one purpose, the question is whether the taxation benefit purpose was the " ruling, prevailing or most influential purpose" : Spotless at 416. 149 Moreover, as Gummow and Hayne JJ said in Hart at [53]: "The bare fact that a taxpayer pays less tax, if one form of transaction rather than another is made, does not demonstrate that Pt IVA applies. Simply to show that a taxpayer has obtained a tax benefit does not show that Pt IVA applies." 150 The fact that the Consortium's advisers referred to taxation considerations including the non-deductibility of the "Second Specified Payment Amount" and the deductibility of the Prepayment is not surprising. It would be surprising, if not negligent of them, if they did not. And the terms in which they referred to these issues does not assist the Commissioner. As Gummow and Hayne JJ said, 'tax laws affect the shape of nearly every business transaction'. 151 It goes without saying that any rational economic actor will endeavour to minimise the tax consequences of a business transaction. For that reason, it must be shown not just that a tax benefit was received, but also that the "dominant purpose" of the transaction was to obtain the tax benefit. In this case, an objective consideration of the Bid Process and Transaction Documents reveals no such dominant purpose on the part of Star City. 152 The Commissioner's arguments in favour of the application of Pt IVA assume a degree of unilateral freedom on the part of the Star City Consortium to frame the arrangement in terms of its choice which the history of the Bid Process denies: see Annexure at [1] to [60]. Throughout the negotiations, there were two considerations that remained consistent: the Casino would operate on leased land owned by the State and rent would be paid for use of those Premises. 153 Thus, from the outset, the transaction comprised a number of necessary and essential components including the Casino Licence, the Construction Lease and the Freehold Lease. Components made necessary and essential by, inter alia, the Casino Control Act and by the fact that the Premises were vested in the Crown. It is also important to re-emphasize that for the State parties (the CCA and the Treasury), commercial considerations required payment of as much money as could be obtained as soon as it could be obtained.


case_text: The Occupational Licence Agreement recorded the agreement obliging Star City to pay the Prepayment. Star City was "definitively committed" to the outgoing, the Prepayment: Federal Commissioner of Taxation v James Flood Pty Ltd [1953] HCA 65 ; (1953) 88 CLR 492 at 506. That outgoing was incurred by Star City in its capacity as the holder of the Casino Licence entitling it to operate the Casino for which it required premises from which to conduct that activity. The Prepayment was thus an outgoing incurred by Star City in gaining or producing assessable income under s 51(1) of the 1936 Act and / or s 8-1 of the 1997 Act . 80 Subject to the next issue, there was no dispute between the parties that, if the Prepayment was an outgoing incurred by Star City in gaining or producing assessable income under s 51(1) of the 1936 Act and / or s 8-1 of the 1997 Act , then a proportion of the Prepayment was allowable as a deduction from the assessable income of Star City for each year of income in the Primary Rental Period in accordance with s 82KZM of the 1936 Act : see [5] above. 81 In relation to the "negative limb" of s 51(1) of the 1936 Act and / or s 8-1 of the 1997 Act , the Commissioner submitted that even if the Prepayment was an outgoing incurred by Star City in gaining or producing assessable income, the Prepayment was on capital, not revenue, account and therefore not deductible under s 51(1) of the 1936 Act and / or s 8-1 of the 1997 Act . This argument also fails.


case_title: Federal Commissioner of Taxation v South Australian Battery Makers Pty Ltd [1978] HCA 32 ; (1978) 140 CLR 645


case_title: Federal Commissioner of Taxation v Spotless Services Ltd & Anor [1996] HCA 34 ; (1996) 186 CLR 404

case_text: As Gummow and Hayne JJ said in Hart at [52]: "There is no doubt that 'tax laws affect the shape of nearly every business transaction' ( Frank Lyon Co v United States (1978) 435 US 561 at 580, cited in Spotless [1996] HCA 34 ; (1996) 186 CLR 404 at 416). But as was said in the joint reasons in Spotless (at 416) "A particular course of action may be, to use a phrase found in the Full Court judgments, both 'tax driven' and bear the character of a rational commercial decision. The presence of the latter characteristic does not determine the answer to the question whether, within the meaning of Pt IVA , a person entered into or carried out a 'scheme' for the 'dominant purpose' of enabling the taxpayer to obtain a 'tax benefit' . (Emphasis added.)" Always the question must be whether the terms of the Act apply to the facts and circumstances of the particular case." 134 In addition, even if one or more of the schemes was capable of being a scheme for the purposes of Part IVA , Star City did not obtain a tax benefit in relation to it. The Commissioner contended that in determining the answer to that question, it was necessary to construe and apply Pt IVA according to its terms: Federal Commissioner of Taxation v Spotless Services Ltd [1996] HCA 34 ; (1996) 186 CLR 404 at 414 and Federal Commissioner of Taxation v Hart [2004] HCA 26 ; (2004) 217 CLR 216 at [51] . So much may be accepted. 148 Section 177D(b) is not directed at attributing a purpose to "the scheme": Hart at [63]. The test of purpose is objective. Actual subjective purposes are irrelevant: Hart at [65]. And if there is more than one purpose, the question is whether the taxation benefit purpose was the " ruling, prevailing or most influential purpose" : Spotless at 416.


case_text: As Gummow and Hayne JJ said in Hart at [52]: "There is no doubt that 'tax laws affect the shape of nearly every business transaction' ( Frank Lyon Co v United States (1978) 435 US 561 at 580, cited in Spotless [1996] HCA 34 ; (1996) 186 CLR 404 at 416). But as was said in the joint reasons in Spotless (at 416) "A particular course of action may be, to use a phrase found in the Full Court judgments, both 'tax driven' and bear the character of a rational commercial decision. The presence of the latter characteristic does not determine the answer to the question whether, within the meaning of Pt IVA , a person entered into or carried out a 'scheme' for the 'dominant purpose' of enabling the taxpayer to obtain a 'tax benefit' . (Emphasis added.)" Always the question must be whether the terms of the Act apply to the facts and circumstances of the particular case."


case_text: The classic test for resolving the distinction between capital and revenue is that stated by Dixon J in Sun Newspapers Ltd v Federal Commissioner of Taxation [1938] HCA 72 ; (1938) 61 CLR 337 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 Citylink (High Court) at [147] and GP International Pipecoaters Pty Ltd v Federal Commissioner of Taxation [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: Several points must be made about these contentions. First, the findings of fact made in one case provide no guidance to the decision in another. Yet, in essence, that is the path the Commissioner's argument by reference to Jupiters would have me take. Secondly, and no less fundamentally, the Commissioner's contention that Star City and the CCA did not undertake a real commercial negotiation should be rejected. Taken as a whole, the negotiations between the parties are properly described as "hard bargaining". It would be wrong to approach that negotiation piecemeal and say of part of it that Star City was free to choose its own terms and in that particular respect simply because the particular point was not shown to be the subject of extended debate or negotiation. As it happens, however, both the amount to be paid as rent and the terms on which rental would be paid were points of critical centrality in the negotiations between Star City and the CCA and matters about which the CCA (not Star City) had the ultimate decision. The Commissioner's contention that the rent payable during the "Primary Rental Period" was not the result of hard bargaining is without foundation: cf JB Chandler Investment Company Ltd v Federal Commissioner of Taxation (1993) 47 FCR 588 at 598 and Jupiters at [56]. 111 A summary of the Bid Process is set out in the Annexure to these reasons. In referring to these facts and matters, I should not be taken as accepting that separately or collectively they form part of the "factual matrix" or assist in the identification or characterisation of the advantage sought by the Prepayment: see [129] below. All the documents contain are successive statements by parties to a difficult and complex commercial negotiation and, in particular, the stance each took in the bidding process at that time. The documents record nothing more that the state of the negotiations as they developed. 112 This description of the history of the negotiations between the parties reveals that each side of the negotiation (unsurprisingly) sought to obtain the best commercial result it could. For the State parties (the CCA and the Treasury), commercial considerations required payment of as much money as could be obtained as soon as it could be obtained. But there are two considerations that remained consistent: the Casino would operate on leased land owned by the State and rent would be paid for use of those Premises. The outgoing now in question is the payment that was made for the use of those Premises for 12 years.


case_text: The sections contain two "positive limbs": outgoings are deductible to the extent that they are incurred in gaining or producing assessable income (the first limb) or necessarily incurred in carrying on a business for the purposes of gaining or producing assessable income (the second limb): Ronpibon Tin NL and Tongkah Compound NL v Federal Commissioner of Taxation [1949] HCA 15 ; (1949) 78 CLR 47 at 57; FCT v Payne [2001] HCA 3 ; (2001) 202 CLR 93 at 98; Fletcher v Federal Commissioner of Taxation [1991] HCA 42 ; (1993) 173 CLR 1 at 16-17 and John Fairfax & Sons Pty Ltd v Federal Commissioner of Taxation [1959] HCA 4 ; (1959) 101 CLR 30 at 40. The sections also relevantly contain one "negative limb": outgoings are not deductible to the extent that they are outgoings of capital or of a capital nature.


case_text: The Commissioner made a number of arguments founded ultimately in the decision of Dowsett J in Jupiters Ltd v Deputy Commissioner of Taxation (2001) 48 ATR 511, affirmed by [2002] FCAFC 206 ; (2002) 118 FCR 163. Those arguments picked up the language of Dowsett J in his reasons for decision and sought to apply it to the facts of this case. So, for example, it was said that there was not, in this case, " hard bargaining" about the terms of the lease and, in particular, the rental payments: cf Jupiters at [56].


case_text: Instead, the payment secured the use of the Premises for the purposes of generating income from the casino. There was no allegation and could be no allegation that the Prepayment of rent was a sham. The two leases (the Construction Lease and the Freehold Lease) were necessary and existed, the rent was an agreed amount, was payable and was paid. Although labels can never be determinative ( Jupiters Ltd v Deputy Commissioner of Taxation [2002] FCAFC 206 ; (2002) 118 FCR 163 at [26] ; South Australian Battery Makers at 655 and Commissioner of Taxation (Cth) v Broken Hill Pty Co Ltd (2000) 179 ALR 593 at [36]), the Prepayment was in this case, as it was described a prepayment of rent. 109 The Commissioner made a number of arguments founded ultimately in the decision of Dowsett J in Jupiters Ltd v Deputy Commissioner of Taxation (2001) 48 ATR 511, affirmed by [2002] FCAFC 206 ; (2002) 118 FCR 163. Those arguments picked up the language of Dowsett J in his reasons for decision and sought to apply it to the facts of this case. So, for example, it was said that there was not, in this case, " hard bargaining" about the terms of the lease and, in particular, the rental payments: cf Jupiters at [56].


case_text: As was explained by Ryan J in Krampel Newman Partners Pty Ltd v Commissioner of Taxation [2003] FCA 123 ; (2003) 126 FCR 561 at [120] , s 226L applies: "the same level of penalty as ss 224, 225 and 226 for schemes entered into for the sole or dominant purpose of avoiding tax, but in respect of which the Commissioner has not applied any of the anti-avoidance provisions because the schemes are ineffective under the ordinary provisions of the [1936 Act or the 1997 Act ] eg s 51 [of the 1936 Act ]." (Internal citation and quotation marks omitted.) See also Starr v Commissioner of Taxation 2007 ATC 4080 at [45].


case_text: Finally, the Commissioner's reference to and reliance upon the parties' prior and subsequent conduct is misplaced. Where, as here, the language in context is not ambiguous, the Court may not look at the prior and subsequent conduct of the parties to interpret the Occupational Licence Agreement: Administration of Papua and New Guinea v Daera [1973] HCA 59 ; (1973) 130 CLR 353 at 446 (per Gibbs J); Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24 ; (1982) 149 CLR 337 at 348 (per Mason J) and L Schuler AG v Wickman Machine Tool Sales Ltd [1973] UKHL 2 ; [1974] AC 235 at 261; cf Sinclair, Scott & Co Ltd v Naughton [1929] HCA 34 ; (1929) 43 CLR 310 at 327; Farmer v Honan [1919] HCA 13 ; (1919) 26 CLR 183 at 197. Such conduct cannot be used to generate disputes about the meaning of unambiguous terms. Such an approach would be inconsistent with the " general test of objectivity [that] is of pervasive influence in the law of contract" : Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (No 2) [2004] HCA 55 ; (2005) 218 CLR 471 at [31] - [36] and, in particular at [34] quoting Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 at 549 (per Gleeson CJ).


case_text: The process of identifying a 'tax benefit' is prescribed by s 177C. It requires an assessment of what might reasonably be expected to have happened if the scheme had not been entered into or carried out. This process has been described as the identification of the 'alternative postulate': Hart at [66] and Macquarie Finance Ltd v Commissioner of Taxation [2005] FCAFC 205 ; (2005) 146 FCR 77 at [204] . This is an objective assessment: Calder v Commissioner of Taxation (2005) 226 ALR 643 at [95]; Macquarie at [212]; Pridecraft Pty Ltd v Federal Commissioner of Taxation (2004) 213 ALR 450 at [64]-[65].


case_text: Both parties conducted the litigation on the basis that cl 2.1 of the Construction Lease and cl 2.1 of the Freehold Lease required SHCP to make the Prepayment which, without mutual agreement, was non-refundable. That is to say, the litigation was conducted on the basis that the agreements made between the CCA and SHCP left no room for the operation of s 144 of the Conveyancing Act 1919 (NSW). It is unnecessary therefore to examine issues of the kind considered by Hodgson CJ in Ocelota Pty Ltd v Water Administration Ministerial Corp [2000] NSWSC 370 and the authorities cited in [72] and [75] of that decision. 12 On 14 December 1994, a suite of documents was signed or executed by Star City, SHCP, the CCA and the Treasurer of NSW ("the Transaction Documents"). Neither the identity of the parties to nor the express terms of the Transaction Documents are in dispute. Before identifying the Transaction Documents, it is necessary to understand the statutory framework in which they were executed. 13 In New South Wales, the conduct and playing of a game of chance or a game that is partly a game of chance and a game requiring skill and the use of gaming equipment is lawful when the game is conducted and the gaming equipment is provided in a casino by an operator that is the holder of a licence for that casino under the Casino Control Act 1992 (NSW) ("the Casino Control Act ): see s 4(1) (read with s 3) of the Casino Control Act . In 1994, the Casino Control Act , so far as is relevant, contained the following provisions.


case_title: Payne ; Fletcher v Federal Commissioner of Taxation [1991] HCA 42 ; (1993) 173 CLR 1


case_title: Pridecraft Pty Ltd v Federal Commissioner of Taxation (2004) 213 ALR 450


case_title: Ronpibon Tin NL and Tongkah Compound NL v Federal Commissioner of Taxation [1949] HCA 15 ; (1949) 78 CLR 47


case_text: Thirdly, even if the letter were to be considered as part of some relevant factual matrix, it would not assist in resolving the question of the proper construction of the Occupational Licence Agreement. The letter was an attempt by Star City to gain leverage in its bargaining with the CCA in circumstances where it was the preferred candidate for the grant of the casino licence and, if successful, would be required to pay the Prepayment. The letter was an attempt by Star City to secure repayment of the Prepayment if a possible legal challenge to the grant of such a licence, by an opposition bidding consortium associated with the late Mr Kerry Packer, had been successful. Such a challenge was made although it was unsuccessful: Darling Casino Ltd v New South Wales Casino Control Authority [1997] HCA 11 ; (1997) 191 CLR 602. Negotiations of this nature are evidence of no more than the expectations of the parties and cannot be used to construe the meaning of the written agreement: Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd [1979] HCA 51 ; (1979) 144 CLR 596 at 606 and Codelfa at 352.


case_title: Sinclair, Scott & Co Ltd v Naughton [1929] HCA 34 ; (1929) 43 CLR 310 at 327


case_text: As was explained by Ryan J in Krampel Newman Partners Pty Ltd v Commissioner of Taxation [2003] FCA 123 ; (2003) 126 FCR 561 at [120] , s 226L applies: "the same level of penalty as ss 224, 225 and 226 for schemes entered into for the sole or dominant purpose of avoiding tax, but in respect of which the Commissioner has not applied any of the anti-avoidance provisions because the schemes are ineffective under the ordinary provisions of the [1936 Act or the 1997 Act ] eg s 51 [of the 1936 Act ]." (Internal citation and quotation marks omitted.) See also Starr v Commissioner of Taxation 2007 ATC 4080 at [45]. 164 Accordingly, s 226L is concerned with schemes where the taxpayer's actual sole or dominant purpose is to obtain a tax benefit: Starr v Commissioner of Taxation 2007 ATC 4080 at [52]. If, contrary to the views I have expressed earlier, the Prepayment was not deductible under s 51(1) of the 1936 Act or s 8-1 of the 1997 Act , the evidence does not support the contention that Star City's actual sole or dominant intention was to obtain a tax benefit. On the contrary, its sole and dominant purpose was to be the successful bidder for the casino licence. A necessary precondition to the application of s 226L is not satisfied. 165 The third requirement that Star City's position is not reasonably arguable is also absent. I consider that, viewed objectively, Star City's arguments were open to be argued on rational grounds to be correct. Accordingly, at the most, the appropriate penalty rate is 25%. 166 The Commissioner imposed penalties under s 284-145 of Part 4 - 25 of the Taxation Administration Act 1953 (Cth) ("the TAA") on the basis that but for the application of Pt IVA of the 1936 Act , Star City would have obtained a scheme benefit from a scheme. The Commissioner considered that there was no basis for reduction of penalty from the "base penalty amount" under s 284-160(a)(i) because a reasonably arguable position did not exist. Accordingly, the Commissioner imposed penalties at a rate of 50%.