Category Archives: s. 163

Dodd on behalf of the Gudjala People Core Country Claim #1 v State of Queensland (No 2) [2013] FCA 787 (9 September 2013)

http://www.austlii.edu.au/au/cases/cth/FCA/2013/787.html

NATIVE TITLE – application for joinder as respondents by two separate parties – parties pastoralists with interest in land the subject of the native title claim – claim at advanced stage of progression towards a consensual determination of native title rights and interests – no reasonable basis upon which challenge to native title rights and interests claimed by applicant disclosed in material relied on by prospective parties – ability to contest native title reserved by prospective parties to assist position in negotiations of indigenous land use agreements – delay, in one case gross by prospective parties in seeking joinder with associated likelihood of prejudice be progression of case – whether joinder as parties to s 84(5) of Native Title Act 1993 (Cth) should be permitted

Held: joinder not in the interests of justice – application for joinder dismissed

Dodd on behalf of the Gudjala People Core Country Claim #1 v State of Queensland (No 2) [2013] FCA 787 (9 August 2013)

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCA/2013/787.html

NATIVE TITLE – application for joinder as respondents by two separate parties – parties pastoralists with interest in land the subject of the native title claim – claim at advanced stage of progression towards a consensual determination of native title rights and interests – no reasonable basis upon which challenge to native title rights and interests claimed by applicant disclosed in material relied on by prospective parties – ability to contest native title reserved by prospective parties to assist position in negotiations of indigenous land use agreements – delay, in one case gross by prospective parties in seeking joinder with associated likelihood of prejudice be progression of case – whether joinder as parties to s 84(5) of Native Title Act 1993 (Cth) should be permitted

Held: joinder not in the interests of justice – application for joinder dismissed

Soames v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] FCA 260 (25 March 2013)

http://www.austlii.edu.au/au/cases/cth/FCA/2013/260.html

ADMINISTRATIVE LAW – Application for extension of time to appeal –decision to cancel disability support pension under the Social Security Act 1991 (Cth) – appeal from Administrative Appeals Tribunal – Administrative Appeals Tribunal Act 1975 (Cth), s 44 – discretion to extend time to appeal – matters to be taken into account – explanation for delay – whether there is a question of law – whether any merit in proposed appeal – procedural fairness – whether AAT decision infected by actual or apprehended bias.

PRACTICE AND PROCEDURE – Application for extension of time to appeal – reasons for delay – whether appeal disclosed question of law – Legal Aid Commission Act 1979 (NSW), ss 56, 57.

Deputy Commissioner of Taxation v Starpicket Pty Ltd [2012] FCA 1196 (31 October 2012)

http://www.austlii.edu.au/au/cases/cth/FCA/2012/1196.html

BANKRUPTCY AND INSOLVENCY – consideration of an application to set aside a winding up order on the ground of irregularity in the service of a statutory demand under the Corporations Act 2001 (Cth) and in service of the originating proceedings together with supporting material – consideration of the presumptions arising under the Evidence Act 1995 (Cth) and the Acts Interpretation Act 1901 (Cth) – consideration of s109X of the Corporations Act 2001 (Cth) as to service

CORPORATIONS – consideration of the requirements in relation to service of a statutory demand issued under the Corporations Act 2001 (Cth) and service of originating proceedings seeking an order that the company be wound up in insolvency by the Court – consideration of the consequences of an irregularity in effecting service

Deputy Commissioner of Taxation, in the matter of Manta’s on the Beach Pty Ltd v Manta’s on the Beach Pty Ltd [2012] FCA 417 (24 April 2012)

http://www.austlii.edu.au/au/cases/cth/FCA/2012/417.html

CORPORATIONS – winding up – statutory demand – whether compliance with statutory requirements for postal service pursuant to s 109X of the Corporations Act 2001 (Cth) – statutory demand sent by Commissioner though never received at company’s registered office – held non–compliance with s 109X of the Corporations Act 2001 (Cth)

EVIDENCE – presumptions pursuant to s 160 and s 163 of the Evidence Act 1995 (Cth) and s 29 of the Acts Interpretation Act 1901 (Cth) – service of documents on companies by post – statutory presumptions as to time of service where document posted to registered office – only generic evidence led of postal delivery times to support presumption – express evidence of non–receipt – held presumption rebutted

CORPORATIONS – solvency and insolvency – whether company is insolvent pursuant to s 95A of the Corporations Act 2001 (Cth) – no evidence led by Commissioner as to resources company may command in a reasonable time to meet debts already due and such as may fall due – held failure to prove insolvency

Deputy Commissioner of Taxation, in the matter of ABW Design & Construction Pty Ltd v ABW Design & Construction Pty Ltd [2012] FCA 346 (4 April 2012)

http://www.austlii.edu.au/au/cases/cth/FCA/2012/346.html

CORPORATIONS – winding up – statutory demand – proof of service by post where registered office of corporation included a post code – where post code was obscured on envelope containing statutory demand – whether compliance with statutory requirements for postal service pursuant to s 109X of the Corporations Act 2001 (Cth) and s 28A of the Acts Interpretation Act 1901 (Cth) considered

Held: non-compliance with s 109X of the Corporations Act 2001 (Cth) and s 28A of the Acts Interpretation Act 1901 (Cth)

EVIDENCE – presumptions pursuant to s 29 of the Acts Interpretation Act 1901 (Cth) and s 160 and s 163 of the Evidence Act 1995 (Cth) – service of documents on companies by post – statutory presumptions as to time of service where document posted to registered office – no evidence led as to when documents were delivered – proof of non-receipt

Held: presumptions rebutted

Ferella v Official Trustee in Bankruptcy (No 2) [2011] FCA 619 (6 June 2011)

http://www.austlii.edu.au/au/cases/cth/FCA/2011/619.html

BANKRUPTCY AND INSOLVENCY – inquiry sought into conduct of trustee in bankruptcy in the administration of two bankrupt estates – allegation that trustee engaged in unnecessary litigation – allegation that trustee unduly delayed the administration of the two estates – allegation that the trustee unjustifiably failed to disclose information in legal proceedings in which the bankrupts and the trustee were parties – whether inquiry warranted in the circumstances

Held: Limited inquiry ordered.

Soong v Deputy Commissioner of Taxation [2011] NSWCA 26 (25 February 2011)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2011/26.html

TAXATION – Income Tax – Income Tax Assessment Act 1936 (Cth), s 22AOE – notice – service by post – service effected upon delivery – Deputy Commissioner of Taxation v Meredith [2007] NSWCA 354 not followed.

STATUTORY INTERPRETATION – Acts Interpretation Act 1901 (Cth), s 29 – meaning of service by post.

Deputy Commissioner of Taxation v Clear Blue Developments Pty Ltd [2010] FCA 1223 (5 November 2010)

http://www.austlii.edu.au/au/cases/cth/FCA/2010/1223.html

BANKRUPTCY AND INSOLVENCY – Winding up – Application by Deputy Commissioner of Taxation to wind up a company for failure to comply with a statutory demand – Whether statutory demand and accompanying affidavit were served in accordance with s 109X of the Corporations Act 2001 (Cth) – Whether inferences could be made from affidavit of service of demand as to compliance with s 109X of the Corporations Act 2001 (Cth)

Evidence Act 1995 (Cth) ss 3, 160, 163, 183
Evidence Act 1995 (NSW) s 160
Evidence Act 2008 (Vic) s 160

SZNOZ v Minister for Immigration and Citizenship [2010] FCA 269 (25 March 2010)

http://www.austlii.edu.au/au/cases/cth/FCA/2010/269.html

MIGRATION – judicial review of a decision to refuse the grant of a Protection visa given some 19 years ago – time for review is within 28 days of being served with the decision – whether the appellant was served – regs 35 and 173 of the Migration Regulations 1994 (Cth) – the Refugee Review Tribunal had no jurisdiction to review out of time – s 412 of the Migration Act 1958 (Cth)

Evidence Act 1995 (Cth) s 163

Goulding and Principal Member of the Veterans’ Review Board and Repatriation Commission (Party Joined) [2008] AATA 263 (2 April 2008)

http://www.austlii.edu.au/au/cases/cth/AATA/2008/263.html

VETERANS’ AFFAIRS – Veterans’ Entitlements – application for disability pension dismissed by Veterans’ Review Board – s 155AA notice sent to applicant – whether notice given to the applicant – notice not sent to applicant’s residential address – notice sent to an alternate address which applicant requested correspondence to be sent – notice not given to applicant – decision set aside

Evidence Act 1995 (Cth) ss 4, 5, 163

Deputy Commissioner of Taxation v Soong [2009] NSWSC 495 (10 June 2009)

[2009] NSWSC 495

TAXES AND DUTIES – income tax and related legislation – collection and recovery of tax – recovery of penalty from director of companies – notices sent to director – when plaintiff gave defendant the notices required to be served, when notices posted or when received – construction of section 222AOG of the Income Tax Assessment Act 1936 (Cth) – judgment in favour of plaintiff – costs

Deputy Commissioner of Taxation v Meredith [2007] NSWCA 354 (10 December 2007)

[2007] NSWCA 354

EVIDENCE – presumption of delivery in course of post – relationship of Evidence Act 1995 (Cth) to other Acts – Evidence Act 1995 (Cth), ss 160 and 163

NOTICE – service by post – letter from Commonwealth agency – evidence of non-delivery or non-receipt – Acts Interpretation Act 1901 (Cth) s 29 – Income Tax Assessment Act 1936 (Cth) s 222AOF – Evidence Act 1995 (Cth) ss 160 and 163

TAXATION – liability for failure to remit tax withheld from salary entitlements – Income Tax Assessment Act 1936 (Cth) s 222AOE

WORDS & PHRASES – “contrary intention” in statute – “give”, “serve”, “send” a notice – “sending it by post”

[<i>Evidence Act</i>] 1995 (Cth), ss 4, 5, 160, 163, 182

SZGMB v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 437 (21 April 2006)

[2006] FCA 437
MIGRATION – application for leave to appeal – review of protection visa decision –time when applicant received notification of Refugee Review Tribunal’s decision – consideration of evidentiary requirements for notification – where unreasonable delay in responding to decision of Refugee Review Tribunal – application dismissed

Australian Communications and Media Authority v Clarity1 Pty Ltd (ABN 60 106 529 604) [2008] FCA 1449 (25 September 2008)

[2008] FCA 1449

PRACTICE AND PROCEDURE – estimate of costs made by Registrar – no notice of objection to estimate filed – certificate of taxation issued – respondent claimed certificate not received – respondent seeks to set aside order of Registrar – email service originally relied on for order but no email consent given under Form 12 – subsequent reliance on postage – deeming provisions – serious consequences – degree of certainty of evidence as to actual postage

Held: The order of 31 October 2007 be set aside.

Evidence Act 1995  (Cth) s 160, 160(1), 163

Repatriation Commission v Goulding [2008] FCA 1858 (9 December 2008)

[2008] FCA 1858

ADMINISTRATIVE LAW – appeal from Administrative Appeals Tribunal – whether either s 160 or s 163 of the  Evidence Act 1995  creates a presumption of receipt of notice – misapprehension as to correct law – what constitutes “effective service” under s 28A of the Acts Interpretation Act 1901 – what constitutes the giving of written notice in accordance with s 155AA of the Veterans’ Entitlements Act 1986 (Cth)

PRACTICE AND PROCEDURE – appeal under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) – whether notice of appeal complies with the requirements of Order 53 rule 3 of the Federal Court Rules – what constitutes a question of law

Evidence Act 1995 ss 5, 160, 163