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Federal Court Judgments

Every Issue

Cite as: July 2014 88 (07) LIJ, p.58

Income tax

Whether expense a capital or income item

In SPI PowerNet Pty Ltd v Commissioner of Taxation [2014] FCAFC 36 (7 April 2014) a Full Court concluded that payments by an electricity supplier of “imposts” on the purchase of a transmission licence were capital costs and not allowable as deductions from income under the ITAA Act 1997 (Cth).


Visas – application – applicant unaware of inclusion as child in earlier application

In Minister for Immigration and Border Protection v Kim [2014] FCAFC 47 (24 April 2014) in 2008 K’s father applied for a family visa that included K as a 14 year old child. This application was refused in 2011. In June 2013 K applied for a student visa. This was refused on the ground she had been refused a visa for which she had applied within s48 of the Migration Act 1958 (Cth). The Federal Circuit Court quashed this decision and remitted the application to the Department for determination of the validity of the application. On appeal by the minster the Full Court concluded that validity of the application was a question for the Court to determine. It concluded that the 2008 application was not one K had applied for and the second one was not invalid by reason of s48 of the Act.


“Temporary residence”

In SZRTC v Minister for Immigration and Border Protection [2014] FCAFC 43 (11 April 2014) s36(3) of the Migration Act 1958 (Cth) provided Australia did not have protection obligations to persons who had not taken all steps to avail themselves of right of residence elsewhere whether that right was to reside “temporarily or permanently”. A Full Court concluded the RRT had erred in deciding the temporary right of residence elsewhere must be coextensive with the reason the person feared persecution. The Court concluded that a right to reside in another country for up to six months was a right to temporary residence.


Visa cancellation on character grounds – relevant matters – consequence of indefinite detention

In NBMZ (and others) v Minister for Immigration and Border Protection [2014] FCAFC 38 (9 April 2014) and NBNB v Minister for Immigration and Border Protection [2014] FCAFC 39 (9 April 2014) six applicants were refused protection visas on the “character ground” in s501(6)(aa) of the Migration Act 1958 (Cth) because they had committed offences while in migration detentions. Each applicant had damaged Commonwealth property in a disturbance at a detention centre. A Full Court decided (in some decisions) the decisions to refuse involved a breach of natural justice because the relevant applicant was not told of the central importance the minister gave to deterrence as an issue. The Full Court also accepted (in most matters) that the legal consequences of the decision (indefinite detention) was a relevant matter to making it.


Application for higher rates of pension – relevance of efforts to obtain employment before application

In Smith v Repatriation Commission [2014] FCAFC 53 (1 May 2014) a Full Court considered the relevance of past employment and attempts to obtain employment to determine a veteran had suffered “a loss” in income so as to be eligible for a higher rate of pension under ss24 and 25 of the Veterans’ Entitlements Act 1986 (Cth). Appeal by S from contrary determinations by the VRB, AAT and primary judge allowed. In passing Rares J observed the provisions were “bedevilled with complexity” and the “fog of the drafting style . . . had created a nearly impenetrable shroud over the meaning the Court was expected to attribute to the Parliament”.


Power to install low-impact telecommunications facilities – interference with state water facilities

In Gold Coast City Council v Satellite & Wireless Pty Ltd [2014] FCAFC 51 (1 May 2014) a Full Court disagreed with the primary judge and concluded the phrase “interferes with” the operation of the facility in s192(1) of the Water Supply (Safety and Reliability) Act 2008 (Qld) was to be given a wide meaning. However the Full Court concluded the Telecommunications Act 1997 (Cth) operated to authorise the declaration the primary judge made that the respondent licensed telecommunications carrier was authorised by it to enter the appellant’s land to attach a low impact facility to the appellant’s water tower.

Trade and commerce

Restraint of trade at common law – prohibition on recognising as thoroughbreds horses conceived through artificial insemination

In McHugh v Australian Jockey Club [2014] FCAFC 45 (17 April 2014) the appellant’s contention, that various rules of horse racing that incorporated those parts of the 1947 Australian Stud Book and only recognised as thoroughbred horses those “begotten by natural service” were a restraint of trade, was rejected by the primary judge. The Full Court concluded the rules were reasonable when adopted and dismissed the appeal.

Trade practices

Franchises – franchising code of conduct – obligations of disclosure

In SPAR Licensing Pty Ltd v MIS QLD Pty Ltd [2014] FCAFC 50 (1 May 2014) a Full Court considered the operation of the Franchising Code of Conduct established by the Trade Practices (Industry Codes-Franchising) Regulations 1988 (Cth). In the lead judgment Buchanan J disagreed (in dicta) with the conclusion of the trial judge that cl 6A(b) applied to prospective franchisees and all members reviewed the Code and how a breach of s51A of the Trade Practices Act 1974 (Cth) (concerning representations as to future matters) was established and when it should be pleaded.

THOMAS HURLEY is a Victorian barrister, ph 9225 7034, email The full version of these judgments can be found at The numbers in square brackets in the text refer to the paragraph numbers in the judgment.


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