May 2013
4 posts
Healy v Commissioner of Taxation [2013]
Catchwords: JURISDICTION – whether objection decision of Commissioner is a decision which is reviewable by Tribunal – Commissioner’s reasons for decision on objection failed to address one of the applicant’s grounds of objection - Tribunal not bound by Commissioner’s reasons for decision – Tribunal’s jurisdiction enlivened by notice of objection decision not by reasons for decision attached to...
Casenote: Minister for Immigration and Citizenship...
Catchwords: IMMIGRATION – Migration Review Tribunal – Review of decisions – Visa applicant sought review by Migration Review Tribunal (“Tribunal”) of decision of Minister’s delegate to refuse skilled residence visa – Section 363(1)(b) of Migration Act 1958 (Cth) gives Tribunal power to adjourn review of decision – Visa applicant requested Tribunal adjourn review until the outcome...
Casenote: Barber v Victoria (No 2) [2013]
Catchwords: PRACTICE AND PROCEDURE – Application for preliminary question to be determined - Proceeding seeking declaration concerning the powers and privileges of the Legislative Council of the Parliament of Victoria – Proposed preliminary question concerning justiciability, standing
It’s round two to the government in Greens MP Greg Barber’s protracted dispute against the state...
Justiciability in Australian Administrative Law
Justiciability is a troublesome and somewhat uncertain concept, of which there are no settled categories. It has been described as “a complex phenomenon that weaves together a number of strands” (Finn 2002). The term itself refers to “the suitability for, or amenability to, judicial review of a particular administrative decision” (Finn 2007) and dates in usage to the early seventeenth...
March 2013
2 posts
Masochists
homo-online:
Why do heterogays care so much that the pope rejects them? All this boo-hooing that the pope is anti-gay like it’s a big change! As if he and his church are right about anything?!? The real issue here is that the Normals want to belong and be accepted, even by hideous people. For ourselves, and this goes for all the mullahs, rabbis and ministers too: we reject you and your “god” and...
Casenote: Weeks v Commissioner of Taxation [2013]
Catchwords: TAXATION – appeal from primary judge dismissing appeal from Administrative Appeals Tribunal – whether failure to identify question of law – self-represented litigant
In Weeks v Commissioner of Taxation [2013], the Full Court of the Federal Court of Australia considered an appeal against a ruling of Federal Court that an appeal against a decision of the Administrative Appeals Tribunal...
February 2013
4 posts
The Australian Consumer Law
In July 2010, the former Trade Practices Act Part 5 was incorporated into the Competition and Consumer Act Schedule 2 (the Australian Consumer Law (ACL)). Under the Australian Consumer Law and Fair Trading Act 2012 (Vic) s 8(1), the ACL text applies in Victoria as of 1 July 2012.
Under this split jurisdiction, cases may be brought against corporations in the Federal Court or Federal Magistrates’...
Casenote: 1200151 [2012]
An earlier post considered the sometimes extraordinary lengths some refugee applicants will go to to prove that that they have a well-founded fear of persecution.
In that case, a visa applicant tendered to the Department of Immigration (DIAC) sex tapes of himself and another man to prove that he was, indeed, homosexual and therefore feared persecution in his home country on the grounds of his...
“A law court has its own peculiar power of attraction, don’t you think?”
– Franz Kafka, The Trial
Casenote: James v Robinson [1963]
CATCHWORDS: Contempt of Court - Contempt committed out of court - Summary jurisdiction of Supreme Court - Publication of matter likely to affect criminal trial - Proceedings imminent but not commenced at time of publication.
In these times when the sub judice rule is being bandied about, it may be useful to reflect on some cases where the extent of commentary about legal proceedings amounting to...
January 2013
7 posts
Casenote: Kahlil v Sturgess [2005]
Catchwords: ANTI-DISCRIMINATION - racial vilification - whether respondents’ conduct grounded on race and otherwise constitutes racial vilification - what orders should be made - Racial and Religious Tolerance Act 2001 s7
In a lovely conversation with @CatlinWells the other day about racism, Catlin was shocked that a person called a nigger was awarded $1000 by VCAT in compensation for...
Casual Racism: Straya, Dick Smith, and Racist...
sunili:
Dick Smith is a bit of a tool but he made this ad for his food products for Straya Day and it’s awful and racist and you can google it if you want but I sure as hell will not be linking to it.
I contacted the director of the ad via Twitter and engaged in a bit of discussion about how problematic it was. He responded, firstly by calling me “Sunil”, EPIC AWKWARD TURTLE, but then saying...
Casenote: Secretary to the Department of...
Catchwords: ADMINISTRATIVE LAW— Judicial review — Decision under s 74B(1) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) — Whether Minister erred in considering material not included in referral — Consideration of text, purpose and context of provision — Information in referral is the foundation for the decision — Minister not restricted from taking into account his and...
“Drama has a greater power than any other living art-form to make direct contact...”
– Leslie Rees, Towards an Australian Drama (Angus & Robertson, 1953) 160-161
Casenote: Westend Asset v Deputy Commissioner of...
Catchwords: TAXATION – application made under s 459G of the Corporations Act 2001 (Cth) to set aside a statutory demand – whether there was a genuine dispute as to the claimed debt – whether the debt was “due and payable” under s 459E (1)(a) of the Corporations Act 2001 (Cth) - whether there was a statutory exception under s 105-50(3)(b) of Sch 1 of the Taxation Administration Act 1953 (Cth)
...
Response: Peter Slipper did NOT sexually harass...
In a piece in Independent Australia, Margo Kingston claims that “Justice Rares made it very clear in his judgement [in Ashby v Commonwealth] that Peter Slipper did not sexually harass James Ashby”, a claim which she reiterated in a tweet referring to the piece. That claim is incorrect and misrepresents Justice Rares’ findings.
Justice Rares’ judgment was on an application...
Casenote: OW & OV v Members of the Board of the...
Catchwords: Equal Opportunity – discrimination on ground of homosexuality – religious exception
An earlier post considered provisions against LGBTIQ discrimination under the state anti-discrimination statutes (in my home state of Victoria). This post considers the religious exceptions under the statute.
OW & OV v Members of the Board of the Wesley Mission Council [2010] concerned a same-sex...
December 2012
16 posts
“[B]linding [judges] to the nuances of social context… achieves results that...”
– Guyora Binder & Robert Weisberg, ‘Cultural Criticism of Law’ (1997) 49 Stanford Law Review 1149, 1151.
Casenote: SZQYU v Minister for Immigration [2012]
Catchwords: ADMINISTRATIVE LAW – Allegation that the Tribunal’s decisions affected by jurisdictional error by reason that it failed to consider corroborative evidence, failed to consider in one review evidence only adduced in another and failed to satisfy the applicants’ legitimate expectations.
An earlier post considered the emerging notion that legitimate expectations are not sufficient to give...
Casenote: DPP v Patrick Stevedores Holdings;...
Catchwords: ADMINISTRATIVE LAW — Procedural fairness
The decision of the Victorian Court of Appeal in DPP v Patrick Stevedores Holdings; Victorian Workcover Authority v Patrick Stevedore Holdings [2012] is comprehensively summarised elsewhere. This post concentrates on the question of whether legitimate expectations give rise to an entitlement to procedural fairness.
The Court of Appeal used as...
“[T]he phrase ‘legitimate expectation’ when used in the field of public law...”
– Plaintiff S10-2011 v Minister for Immigration and Citizenship [2012] HCA 31 (Gummow, Hayne, Crennan & Bell JJ).
Casenote: Cyonara Snowfox v Commissioner of...
An earlier post considered the difference between a question of law and of fact as it is relevant to the right to appeal a decision of the Administrative Appeals Tribunal under s 44 of the AAT Act. The same question arises in the rather excitingly titled Cyonara Snowfox v Commissioner of Taxation [2012].
Cyonara Snowfox - no reason why it was called that - appears to have been a property...
Ombudsmen's reporting powers throughout Australia
Victoria
Until November 2004 the Ombudsman’s general power to report to parliament under s 25 of the Ombudsman Act 1973 (Vic) provided that:
… the Ombudsman… may at any time, if he thinks fit, lay before each House of Parliament a report on any matter arising in connexion with the exercise of his functions.
This section was amended by the Major Crimes...
Casenote: Commissioner of Taxation v Crown...
Catchwords: ADMINISTRATIVE LAW – appeal from Administrative Appeals Tribunal – appeal from Tribunal’s decision that premium income paid to the foreign resident respondent was not assessable income within the meaning of Income Tax Assessment Act 1997 (Cth) ss 6-5(2) or (3) – whether Tribunal’s finding raises question of law – principles in determining question of law, mixed question of law and...
Casenote: Kocak v Wingfoot Australia Partners...
Catchwords: ADMINISTRATIVE LAW — Judicial review — Certiorari — Error of law on face of record — Accident compensation — Medical Panel Opinion — Reasons — Adequacy of reasons — Whether Medical Panel bound to give reasons sufficient to reveal path of reasoning from evidence to facts to conclusion — Whether failure of Medical Panel to give adequate reasons amounting to error of law on face of record...
“To make sense of law and to organize experience, people often tell stories. And...”
– Kim Scheppele, ‘Foreward: Telling Stories’ (1989) 87 Michigan Law Review 2073, 2075.
Casenote: A & B v Children's Court of Victoria...
In a landmark ruling, the Supreme Court of Victoria in the case of A & B v Children’s Court of Victoria [2012] held that children have the right to be represented by lawyers in child protection cases. The case is also interesting for its application of administrative law principles relating to certiorari or judicial review by a higher court of a decision of a lower court.
In this case,...
Casenote: Minister for Immigration and Citizenship...
Catchwords: MIGRATION – use of template paragraphs in reasons for decision by Independent Merits Reviewer (IMR) – where template paragraphs used by IMR in a series of decisions involving claims for refugee status by Hazara/Shia claimants from Afghanistan – similarities in structure and content of reasons for rejecting generic and particular claims by such claimants – similarities between generic...
Casenote: Australian Competition and Consumer...
Catchwords: EVIDENCE – Admissibility – business records – whether minutes of meetings of an organisation that represents businesses are business records of the businesses or, alternatively, the organisation – whether representations made therein are made ‘in the course of, or for the purposes of, the business’ of each member business or, alternatively, of the organisation – whether document must...
Casenote: Binetter v Deputy Commissioner of...
Catchwords: TAXATION – notice to furnish information and produce documents issued under s 264(1)(a) of the Income Tax Assessment Act 1936 (Cth) – whether notice abrogates self-incrimination privilege – whether assertion in covering letter that self-incrimination privilege abrogated renders notice misleading and thereby invalid
In Binetter v Deputy Commissioner of Taxation [2012], the Full Federal...
Casenote: Queensland Maintenance Services v...
Catchwords: ADMINISTRATIVE LAW - issue by Commissioner of Taxation of notice to third party under s 260-5 of Taxation Administration Act 1953 (Cth) – notice required payment of 100% of moneys payable by third party to the appellant to the Commissioner – replacement of original notice with new notice reducing amount payable to 20% - whether decision by Commissioner to reduce amount payable by third...
Casenote: Barber v Victoria [2012]
Catchwords: PRACTICE AND PROCEDURE – Application for stay or summary dismissal of proceeding – Proceeding seeking declaration that the Legislative Council of the Parliament of Victoria has power to order the Executive to produce certain types of documents – Document prepared by an external consultant for consideration by Cabinet – Whether the proceeding has no real prospect of success or...
June 2012
3 posts
LGBTIQ discrimination under the Equal Opportunity...
In confronting an issue of LGBTIQ discrimination from a legal standpoint, there are four crucial issues:
coverage - does the discrimination in question come under the legislation?
attributes - does the person discriminated against have a protected attribute?
discrimination - is there discrimination?
exceptions - do any of the exemptions apply?
There are three ‘jurisdications’ of...
Consumer Guarantees and Warranties under the ACL
The Australian Consumer Law (“ACL”) replaces previous national, state and territory laws on implied conditions and warranties with ‘consumer guarantees’, a single national system that applies to all goods purchased after 1 January 2011 (the old Trade Practices Act and state Fair Trading Act apply to goods purchased before 2011).
Application
Consumer guarantees apply to...
Unfair contract terms under the ACL
A term of a consumer contract is void if the term is unfair and the contract is a standard form contract. (s 23(1))
Unfair contract term legislation was first introduced as part of Victoria’s Fair Trading Act in 2003 and was repealed when the first stage of the Australian Consumer Law (“ACL”) was introduced in July 2010.
The ACL unfair contract term regime now applies...
April 2012
1 post
Case Note: Deputy Commissioner of Taxation v...
Catchwords: TAXATION – Goods and Services Tax – negative net amount calculated in respondent’s Business Activity Statement – whether obligation to pay refund subject to implication that payment occur within a reasonable period – whether a reasonable period includes the period of time required to conduct an investigation into the correctness of respondent’s activity statements – reasonable period...
March 2012
2 posts
Casenote: Deputy Commissioner of Taxation v Karas...
Catchwords: PRACTICE AND PROCEDURE – Freezing orders – Application for variation enabling defendants to mortgage property as security for loan to pay legal fees – Supreme Court (General Civil Procedure) Rules, O 37A
In this case, the Deputy Commissioner of Taxation (DCT) made an application for freezing orders under O 37A of the Supreme Court (General Civil Procedure) Rules 2005 against...
Casenote: Deputy Commissioner of Taxation v Sedhom...
Catchwords: BANKRUPTCY – Creditor’s petition – insufficient evidence of ability to pay debt or other sufficient cause for dismissing or adjourning petition – unproven prospects of recovering sufficient funds in pending litigation against third party – sequestration order made
On 5 May 2009, the Deputy Commissioner of Taxation (DCT) obtained default judgment against Nadra Sedhom for over $130,000...
February 2012
5 posts
Legislation Update: Corporations Amendment...
On 20 December 2011, the government released an exposure draft of the Corporations Amendment (Similar Names) Bill 2012. The Bill makes directors of similar-named companies to a company entering insolvency liable for that company’s debts. The debts include staff entitlements, taxation debts and debts owed to unsecured creditors. It is aimed at combatting the practice of...
Casenote: Tucows.Com v Renner [2011]
Catchwords: Property - Domain names
On August 5 2011, the Court of Appeal for the province of Ontario, Canada ruled in the case of domain name registrar Tucows.com and Brazilian retail chain Renner, who were in argument over Tucows’ right to keep the domain name <renner.com> in light of Renner’s ownership of the trademark “Renner”. A central issue of the dispute...
Casenote: Deputy Commissioner of Taxation v...
Catchwords: CORPORATIONS – winding up application – affidavit in support – verification that debt still due and payable – a formal affirmation – formal proof not required
On 2 February 2012, the Full Court of the Federal Court handed down judgment in the matter of DCT v National Skin Institute. The judgment overruled Rares J’s decision in DCT v Brilliant Homes [2011] FCA 1539 and set down...
Legislation Update: Super Industry (Supervision)...
In July of last year, the government introduced reforms to the rules governing self managed super funds (SMSF) investments in art. The reforms were ostensibly created to prevent SMSF trustees from using art investments for current day benefits rather than securing retirement income. However, the reforms may have a significantly broader impact on investment in art in Australia.
In 2009, the...
Casenote: EME Productions v Screen Australia...
TAXATION AND REVENUE – films – income tax offsets – producer offset – qualifying conditions – “documentary” – meaning – series called Lush House – series entitled to offset
On Monday, Screen Australia appeared in the Federal Court to appeal against a decision by the Administrative Appeals Tribunal (“the Tribunal”) that the Lifestyle Channel series Lush House produced by EME...
April 2010
1 post
