HIGH COURT JUDGMENTS Dr Michelle Sharpe Castan Chambers, Melbourne
Supreme Court was in relation to the child or in relation to a matter arising out of the de facto relationship. In respect of the application to transfer the Supreme Court proceedings to the Family Court, the Court considered section 5 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (WA). Section 5(4)(b) provides that where proceedings are pending in the court and it appears to that court that proceedings arise out of, or are related to proceedings in another court, and it is more appropriate that the relevant proceedings be determined by that other court, having regard to whether it was capable of being instituted in that court and the interests of justice, the first court shall transfer the proceedings to that other court. The Supreme Court held: The plaintiff’s claim in the Supreme Court proceedings did not arise out of the Family Court proceedings. Arguably it was not even related to them. Although there was a factual nexus - including that the parties were in a de facto relationship, they had a child together, and the alleged confidential information was created in the context of the plaintiff receiving legal advice in relation to his family law matter - proceedings relate to other proceedings where there is a nexus between the proceedings themselves, a factual nexus is insufficient. The parties’ papers and submissions did not disclose that the Family Court was the more appropriate court. The relief sought by the plaintiff was entirely discrete and equitable in nature. The Court weighed in that the relief sought concerns use of confidential material in all courts, not just the Family Court. It also weighed in the urgency considering the upcoming final hearing in the Magistrates Court. The Court dismissed the defendant’s application, ordered that the defendant pay the plaintiff’s costs and that programming orders be made programming the proceedings to an expedited trial commencing in November 2021.
Dianne Caruso is a Senior Associate in the Family Law team at HHG Legal Group.
Taxation United Kingdom Convention In the High Court decision of Addy v Commissioner of Taxation [2021] HCA 34 (3 November 2021) the High Court was required to determine whether Part III of Schedule 7 of the Income Tax Rates Act 1986 (Cth) (Rates Act) breaches article 25(1) of the Convention between the Government of Australia and the Government of the United Kingdom of Great Britain and Northern Ireland for the Avoidance of Double Taxation and Prevention of Fiscal Evasion with respect to Taxes on Income and on Capital Gains (United Kingdom Convention). In December 2016 a new tax rate was introduced for people holding working holiday visas. Part III of Schedule 7 of the Rates Act applied a flat rate of tax of 15 per cent to the first $37,000 of a person’s working holiday taxable income (a maximum tax liability of $5500). But, under Part I of Schedule 7 of the Rates Act, the taxable burden for an Australian national, for taxable income from the same source and over the same period, was less – they were entitled to a tax-free threshold for the first $18,200 and were thereafter taxed at 19 per cent up to $37,000 (a maximum tax liability of $3572). Article 25(1) of the United Kingdom Convention provides that nationals of the United Kingdom shall not be subjected in Australia to “other or more burdensome” taxation than is imposed on Australian nationals “in the same circumstances, in particular with respect to residence”. Ms Addy is a national of the United Kingdom. During the 2017 taxable year Ms Addy derived taxable income working in casual employment in Australia on a working holiday visa. The Commissioner of Taxation (Commissioner) applied Part III of Schedule 7 of the Rates Act to Ms Addy’s assessable income. Ms Addy objected. At first instance the primary judge held that Part III of Schedule 7 did breach article 25(1). The Commissioner successfully appealed to the Full Court of the Federal Court. Derrington and Steward JJ, in separate judgments, considered that Part III of Schedule 7 did breach article 25(1)
because they reasoned that the holding of a particular type of visa was not necessarily bound to nationality. Davies J, in dissent, held that article 25(1) was infringed because a person’s visa status could not be divorced from the person’s nationality. The High Court (Keifel CJ, Gageler, Gordon, Edelman and Gleeson JJ) unanimously agreed with Davies J. In reaching this conclusion the High Court observed (at [23]) that “international instruments should be interpreted in a more liberal manner than would be adopted if the court was required to construe exclusively domestic legislation”. The High Court considered (at [24]) that article 25(1) required a comparison between a national of the United Kingdom and a national of Australia who is “in the same circumstances, in particular with respect to residence”. The Commissioner tried to argue that a comparison was not possible because an Australian national cannot hold a working holiday visa. The High Court (at [30]) roundly rejected this argument. The High Court held (at [31]) that Part III of Schedule 7 did impose a more burdensome taxation on those holding working holiday visas (in breach of the United Kingdom Convention for nationals of the United Kingdom) and allowed Addy’s appeal.
Torts Damages Arsalan v Rixon; Nguyen v Cassim [2021] HCA 40 (8 December 2021) concerned two separate appeals in which the High Court was required to determine whether the appellants, who had admitted liability for the cost of repair to cars damaged in traffic accidents, were also liable for the costs of hiring equivalent substitute cars until the completion of repairs. In both appeals the respondents owned prestige vehicles and hired equivalent cars during the period of repair. The Court of Appeal of the Supreme Court of NSW allowed the respondents to recover their hire costs from the appellants. The appellants sought special leave and appealed to the High Court. The High Court (Keifel CJ, Gageler, Keane, Edelman and Steward JJ)
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