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Sixth Ravini Pty. Ltd. v. Deputy Commissioner of Taxation.

Judges:
Northrop J

Court:
Federal Court

Judgment date: Judgment handed down 18 June 1985.

Northrop J.

On 3 April 1985 five separate but related applications came on for directions hearings. Four of the five applications are made under the Administrative Decisions (Judicial Review) Act 1977 (``the Judicial Review Act''), but it is not clear under which Act the fifth application was brought. The Deputy Commissioner of Taxation is named as respondent to each of the applications. In each of the applications the Deputy Commissioner has given notice of objection to competency under O. 54 r. 4 of the Federal Court Rules. In each application the Deputy Commissioner has given notice of motion seeking an order under O. 20 r. 2 that the application be dismissed. The facts in the two applications in which

ATC 4309

Eighth Oupan Pty. Ltd. and Sixth Ravini Pty. Ltd. respectively are applicants, are sufficiently similar to enable those two applications to be treated as one. In the result all matters arising in those two proceedings, by consent of the parties, were heard together. The directions hearings in the other three proceedings have been adjourned to the time and place at which judgment is given in the two proceedings heard together.

In considering the Eighth Oupan Pty. Ltd. and Sixth Ravini Pty. Ltd. applications, reference will be made to the facts in the Eighth Oupan Pty. Ltd. application only but the result in the Sixth Ravini Pty. Ltd. application will be the same as in the Eighth Oupan Pty. Ltd. application.

On or about 3 August 1984, the Deputy Commissioner, in purported exercise of the powers conferred by sec. 264 of the Income Tax Assessment Act 1936 (``the Assessment Act''), issued and served on Eighth Oupan Pty. Ltd. a notice in writing in the following form: s

``NOTICE TO PRODUCE BOOKS, DOCUMENTS AND PAPERS NOTICE UNDER SECTION 264 INCOME TAX ASSESSMENT ACT 1936 (AS AMENDED)

TO: Eighth Oupan Pty. Ltd.

  • C/- Herbert Geer and Rundle
  • 27th Floor
  • 385 Bourke Street
  • MELBOURNE 3000

TAKE NOTICE that in the exercise of the powers and functions conferred upon me as Deputy Commissioner of Taxation by delegation from the Commissioner of Taxation under the provisions of the Taxation Administration Act 1953, I JAMES E. McTIGUE do by this notice REQUIRE YOU, by your proper officer, TO ATTEND at Room No. V Ground Floor, 270 King Street, Melbourne, on the 4th day of September 1984, at 10.30 o'clock in the forenoon before ALAN LESLIE BAKER (an officer of the Australian Taxation Office, who is authorised in that behalf) concerning the income and/or assessment of Eighth Oupan Pty. Ltd. as trustee of Oupan Trust No. 1, Oupan Trust No. 2, Oupan Trust No. 3, Oupan Trust No. 4 and Oupan Trust No. 5 for the years ended 30 June 1980, 30 June 1981, 30 June 1982, 30 June 1983 and 30 June 1984 and TO PRODUCE at the said place and time the undermentioned books, documents and papers in your custody, or under your control, namely:

  • In respect of Eighth Oupan Pty. Ltd. as trustee of the aforementioned trusts, the following books, documents and papers, or their equivalents under any other title:
    • 1. Cash Receipts and Cash Payments Journals for the years ended 30 June 1980, 30 June 1981, 30 June 1982, 30 June 1983 and 30 June 1984.
    • 2. General Journal for the years ended 30 June 1980, 30 June 1981, 30 June 1982, 30 June 1983 and 30 June 1984.
    • 3. General Ledger for the years ended 30 June 1980, 30 June 1981, 30 June 1982, 30 June 1983 and 30 June 1984.
    • 4. Directors' Minute Book for the period from the date of incorporation of Eighth Oupan Pty. Ltd. to 30 June 1984.
    • 5. All loan agreements in respect of monies borrowed from any persons, including companies, during the period commencing on the date of incorporation of Eighth Oupan Pty. Ltd. and ending on 30 June 1984.
    • 6. All loan agreements in respect of monies advanced to any other persons, including companies, during the period commencing on the date of incorporation of Eighth Oupan Pty. Ltd. and ending on 30 June 1984.
    • 7. A copy of that part of the trust account of Herbert Geer and Rundle which records your financial transactions as trustee of Oupan Trust No. 1, Oupan Trust No. 2, Oupan Trust No. 3, Oupan Trust No. 4 and Oupan Trust No. 5 in respect of the years ended 30 June 1980, 30 June 1981, 30 June 1982, 30 June 1983 and 30 June 1984.

DATED this 3rd day of August 1984.

  • Deputy Commissioner of Taxation and Delegate of the Commissioner of Taxation

    ATC 4310

  • NOTE: Under section 264 of the abovementioned Act, the Commissioner may by notice in writing, require any person to attend and give evidence (including evidence on oath) before him or before any officer authorised in that behalf concerning his or any other person's income or assessment, and may require him to produce all books, documents and other papers whatever in his custody or under his control relating thereto.''

The provisions of sec. 264 of the Assessment Act relevant to these proceedings are set out:

``264(1) The Commissioner may by notice in writing require any person,...

  • (b) to attend and give evidence... before any officer authorized by him in that behalf concerning his or any other person's income or assessment, and may require him to produce all books, documents and other papers whatever in his custody or under his control relating thereto.''

The notice served on Eighth Oupan Pty. Ltd. can be summarised as a notice requiring Eighth Oupan Pty. Ltd. to attend before Mr Baker and produce specified documents in its custody or under its control as trustee of the specified companies.

By letter dated 24 August 1984, Eighth Oupan Pty. Ltd. advised the Deputy Commissioner that it was conscious of its obligations under the Assessment Act and had no intention of acting other than in accordance with the notice and sought further information regarding the purpose of the inquiry so that it could be satisfied that the notice was properly authorised by sec. 264 of the Assessment Act. The letter, omitting formal parts, was as follows:

``Attention: Mr Baker

Dear Sir,

re: Section 264 Notice

Reference is made to the Notice issued under Section 264 of the Income Tax Assessment Act.

The Company is conscious of its obligations under the Act and has no intention of acting other than in accordance with law. However, the Company has been advised to seek from you information regarding the purpose of the inquiries so that it may be satisfied they are properly authorised by Section 264 and that it (i.e. the Company) would not, in replying, be breaching its fiduciary obligations and its duty of confidentiality to a number of persons, including the Beneficiaries of the various trusts.

Your reply is awaited. In the meantime, it is assumed that the Notice is `adjourned'.

This letter should not be taken as in any way conceding the validity of the whole or any part of the said Notice.''

By letter dated 7 September 1984, the Deputy Commissioner replied advising that the purpose of the inquiries which gave rise to the issue of the notice relating to the income or assessment of Eighth Oupan Pty. Ltd. as trustee, was to assist the Deputy Commissioner to determine the income derived and the expenditure incurred by it as trustee of the specified companies for the years ended 30 June 1980 to 30 June 1984 inclusive. The letter omitting formal parts was as follows:

``Gentlemen

INCOME TAX

Reference is made to the notice, dated 3 August 1984, issued to the company under section 264, of the Income Tax Assessment Act 1936 (as amended) and to your subsequent letter of 24 August 1984.

It is advised that the purpose of the enquiries which gave rise to the issue of the notice relating to the income or assessment of Eighth Oupan Pty. Ltd. as trustee, is to assist the Commissioner to determine the income derived and the expenditure incurred by the company as trustee of the Oupan Trust No. 1, Oupan Trust No. 2, Oupan Trust No. 3, Oupan Trust No. 4 and Oupan Trust No. 5 for the years ended 30 June 1980 to June 1984.

It is noted that the date on which the company was required to comply with the notice has now expired, however, prosecution action relating to this matter will be deferred to allow the company additional time to comply with the requirements of the notice. Accordingly, you by your proper officer are requested to

ATC 4311

attend at Room No. 5, Ground Floor, 270 King Street, Melbourne, at 10.30 a.m. on 21 September 1984, before Mr Alan Baker to produce the books, documents and papers specified in the notice.''

By letter dated 19 September 1984, Eighth Oupan Pty. Ltd. replied advising that it had received the letter of 7 September 1984, that it had sought legal advice and that it had been advised that the reply was ``too vague, abstract, imprecise and nebulous'' and that it did not satisfy the assurances sought. The letter advised further that Eighth Oupan Pty. Ltd. was about to make application under the Judicial Review Act seeking reasons for the decision. That request under sec. 13 of the Judicial Review Act was made by the solicitors for Eighth Oupan Pty. Ltd. The request was dated 25 September 1984 and was forwarded to the Deputy Commissioner under cover of a letter from the solicitors for Eighth Oupan Pty. Ltd. The decisions for which the statement was sought were identified in the request as follows:

``1. The decision to exercise certain powers and functions in order to require the attendance of the applicant (by a `proper officer') details of which are set out in a Notice addressed to the applicant dated 3rd August, 1984, a copy of which is attached hereto as Attachment A.

2. In respect of each and every trust referred to in Attachment A, the decision to enquire into the income and/or assessment of the petitioner as trustee thereof.

3. In respect of each and every book, document and paper referred to in Attachment A, the decision to require the production thereof.

4. The decision to make the request to attend, set out in a letter to the petitioner dated 7th September, 1984 a copy of which is attached hereto as Attachment B.

5. The decision to state the purpose of various enquiries, which purpose is described more fully in the second paragraph of Attachment B.

6. In respect of each and every book, document and paper referred to in 3 above, the decision to require the production thereof on 21st September, 1984.''

The Attachment A referred to in that request is the notice under sec. 264 of the Assessment Act dated 3 August 1984. The Attachment B referred to in that request is the letter from the Deputy Commissioner dated 7 September 1984.

Under cover of a letter dated 20 December 1984, the Deputy Commissioner forwarded to Eighth Oupan Pty. Ltd. the statement pursuant to sec. 13 of the Judicial Review Act dated 20 September 1984. In that letter the Deputy Commissioner specified 11.00 a.m. on 3 January 1985 as the time for the production of the documents specified in the notice under sec. 264 of the Assessment Act. The statement under sec. 13 of the Judicial Review Act, omitting formal parts, is as follows:

``Reference is made to your notice, dated 25 September 1984, requesting a statement in writing, pursuant to section 13 of the Administrative Decisions (Judicial Review) Act 1977, setting out the finding on material questions of fact, referring to the evidence for those findings and giving reasons for the decisions set out in the Schedule to the notice.

  • A. The findings on material questions of fact are:
    • 1. Eighth Oupan Pty. Ltd. acted as trustee for the Oupan Trust No. 1, Oupan Trust No. 2, Oupan Trust No. 3, Oupan Trust No. 4 and Oupan Trust No. 5, during the years ended 30 June 1980 to 30 June 1984.
    • 2. Eighth Oupan Pty. Ltd. derived income and incurred expenditure in its capacity as trustee of the aforementioned trusts.
    • 3. Eighth Oupan Pty. Ltd. received monies on behalf of the aforementioned trusts from a source, or sources, not specified in the relevant taxation returns of the trusts.
    • 4. Eighth Oupan Pty. Ltd. advanced monies on behalf of the aforementioned trusts to a person, or persons, not specified in the relevant taxation returns of the trusts.
    • 5. On 3 August 1984, Eighth Oupan Pty. Ltd. was issued a notice under section 264 of the Income Tax Assessment Act 1936 (as amended) requiring the company, by its proper

      ATC 4312

      officer, to attend at room number V, Ground Floor, 270 King Street, Melbourne, on the 4th day of September 1984, at 10.30 o'clock in the forenoon and to produce the books, documents and papers specified in that notice.
    • 6. Eighth Oupan Pty. Ltd. did not comply with the requirements of the aforementioned notice.
    • 7. By letter, dated 24 August 1984 addressed to the Deputy Commissioner of Taxation, 350 Collins Street, Melbourne, Eighth Oupan Pty. Ltd. sought information regarding the purpose of the enquiries being made pursuant to the notice issued under section 264 on 3 August 1984.
    • 8. A reply to Eighth Oupan Pty. Ltd.'s letter dated 24 August 1984 issued on 7 September 1984 explaining the purpose of the enquiries and requesting the company, by its proper officer, to attend at room number V, Ground Floor, 270 King Street, Melbourne, at 10.30 a.m. on 21 September 1984, before Mr Alan Baker to produce books, documents and papers specified in the notice.
  • B. The evidence or other material on which these findings are based comprise:
    • 1. The returns of income of the Oupan Trust No. 1, Oupan Trust No. 2, Oupan Trust No. 3, Oupan Trust No. 4 and Oupan Trust No. 5 for the years ended 30 June 1980 to 30 June 1984.
    • 2. The letter from Eighth Oupan Pty. Ltd., dated 24 August 1984.
    • 3. The reply to that letter dated 7 September 1984.
  • C. The reasons for the decisions set out in the Schedule are:
    • 1. To ensure that the Commissioner is in possession of all the material facts necessary to determine the income derived and the expenditure incurred by Eighth Oupan. Pty. Ltd., as trustee of the Oupan Trust No. 1, Oupan Trust No. 2, Oupan Trust 3, Oupan Trust No. 4 and Oupan Trust No. 5 in each of the years ended 30 June 1980 to 30 June 1984.
    • 2. Each and every book, document and paper referred to in the notice issued under section 264 was required to assist the Commissioner to determine the income derived and the expenditure incurred by Eighth Oupan Pty. Ltd., as trustee of the Oupan Trust No. 1, Oupan Trust No. 2, Oupan Trust No. 3, Oupan Trust No. 4 and Oupan Trust No. 5.
    • 3. To obtain production of each and every book, document and paper referred to in the notice issued under section 264.
    • 4. The second paragraph of the letter dated 7 September 1984 was a response to the second paragraph of the letter dated 24 August 1984 from Eighth Oupan Pty. Ltd.
    • 5. To allow additional time for compliance with the requirements of the notice issued under section 264.

DATED this 20th day of December 1984.''

Eighth Oupan Pty. Ltd. commenced its application under the Judicial Review Act on 18 January 1985. The application seeks the review of six decisions being the six decisions specified in the request for the statement under sec. 13 of the Judicial Review Act. In setting out the grounds upon which the review was sought, the draftsman of the application adopted a scattergun approach and listed nine grounds and eight subgrounds. No particulars were given of any of the grounds or subgrounds. During the course of submissions counsel for Eighth Oupan Pty. Ltd. restricted the grounds sought to be relied upon to those set out in para. 5(1)(a), (b), (c) and (e) of the Judicial Review Act. Under para. 5(1)(e), para. 5(2)(a), (c), (d) and (e) were relied upon.

The essential decision sought to be reviewed is the decision numbered 1 in the application, being the decision to issue the notice under sec. 264 of the Assessment Act. That decision is manifested by the service upon Eighth Oupan Pty. Ltd. of the notice dated 3 August 1984. That decision is a decision to which the Judicial Review Act applies, see subsec. 3(1) and para.

ATC 4313

3(2)(e) of that Act. That decision not being a decision included in any of the classes of decisions set out in Sch. 1 of that Act and in particular para. (e) of that Schedule; see
D.F.C. of T. v. Clarke and Kann 84 ATC 4273; (1984) 52 A.L.R. 603. Except to the extent that decisions numbered 2 and 3 merge with and form part of decision numbered 1, they are not decisions to which the Judicial Review Act applies. The meaning to be given to the word ``decision'' appearing in the Judicial Review Act has been discussed in many authorities but for present purposes reference need be made only to what I said in
Ricegrowers Co-operative Mills Ltd. v. Bannerman (1981) 56 F.L.R. 443 at pp. 451-453. That case concerned a decision to which sec. 13 of the Judicial Review Act applied, but having regard to subsec. 13(11), that passage has application to the word ``decision'' appearing in subsec. 5(1) of that Act. At p. 453 I said:

``In the present case, I do not find it necessary to give any definitive meaning to the word `decision' appearing in s. 13(1) of the Judicial Review Act. The mere thought processes taking place in the mind of the person when considering whether or how to exercise a power or to perform a duty of an administrative character under an enactment do not, in my opinion, constitute a decision. In addition to thought processes, there must be some overt act by which the conclusions reached as a result of those thought processes are manifested. The manifestation may take many different forms. It may take the form of a verbal or written communication of the conclusion to the person affected. It may take the form of action taken to give effect to the conclusion. It may take the form of no action being taken when otherwise a definite action would have been taken. In the present case, the conclusion reached by the Chairman of the Commission was that a notice under s. 155 of the Trade Practices Act be served on Ricegrowers. The manifestation of that conclusion took the form of the service of the s. 155 notice on Ricegrowers. I do not need to decide whether the issue of a s. 155 notice is a sufficient manifestation to constitute a decision prior to that notice being served on the person to whom it is directed. It is sufficient to say that in the present case the notice was in fact served. In my opinion the determination by the Chairman to serve the s. 155 notice on Ricegrowers carried into effect by the service of that notice, constitutes a decision within the meaning of that word where it appears in s. 13(1) of the Judicial Review Act.''

In the present case, counsel for Eighth Oupan Pty. Ltd. contended that the decisions numbered 2 and 3 referred to decisions made prior to the issue of the sec. 264 notice and depended upon separate and distinct powers contained in the Assessment Act. That may well be correct, but it is not until the sec. 264 notice has been served that there is an overt act by which those decisions are made manifest. At that time the earlier decisions merged into and form part of the decision to issue and serve the sec. 264 notice and, if relevant, can be reviewed in an application to review that decision.

Further, it must be remembered that the sec. 264 notice is a decision because it is a demand under para. 3(2)(e) of the Judicial Review Act. The power conferred by sec. 264 of the Assessment Act is a power to investigate, a power which in many respects is inquisitorial in nature. The Deputy Commissioner is seeking information and the production of documents. The person to whom the notice is given must, in the absence of lawful excuse, comply with the requirements of the notice. If he does not, he commits a criminal offence. In this context it is difficult to see how the law could imply the necessity for the Deputy Commissioner to comply with the requirements of natural justice before issuing and serving the notice. In my opinion, there is no basis for saying that the requirements of natural justice apply to the facts of this case.

The decisions numbered 4, 5 and 6 in the application relate to claims manifested in the letter from the Deputy Commissioner dated 7 September 1984. That letter was written in response to the letter from Eighth Oupan Pty. Ltd. dated 24 August 1984 seeking the purpose of the exercise of the powers conferred upon the Deputy Commissioner by sec. 264 of the Assessment Act and seeking an adjournment of the date on which the documents were to be produced pursuant to the notice. Decisions numbered 4 and 6 appear to be directed to decisions made to grant the adjournment sought, while decision numbered 5 appears to

ATC 4314

be directed to the decision to state the purpose of the inquiries. Insofar as these three decisions are separate and distinct from the decision to issue and serve the sec. 264 notice, they appear to support the contention of counsel for the Deputy Commissioner that the application is frivolous, vexatious and is an abuse of the process of the Court.

Order 54 of the Rules of Court prescribe matters of practice and procedure with respect to applications under the Judicial Review Act. Under that Order, the application must specify the decisions which are sought to be reviewed as well as the grounds of the application; see r. 2(1) and Form 56 in the First Schedule to the Rules. If the grounds of the application include an allegation of fraud or bad faith, particulars of the fraud or bad faith must be set out in the application; see r. 2(2). Under r. 3(1) an applicant is required to file a copy of any statement with respect to the decisions sought to be reviewed given pursuant to sec. 13 of the Judicial Review Act. Rule 4 enables a respondent to the application who objects to the competency of the application to give notice of that objection and that objection may be heard and determined before the hearing of the application; see r. 5(c). It is clear that, subject to O. 54, the other Rules of Court apply to applications under the Judicial Review Act; see O. 54 r. 5 and, in particular, O. 10.

By his notice of objection to competency, the Deputy Commissioner claimed that the application was not made within the time limited by sec. 11 of the Judicial Review Act. The application was, at the very most, one day late. Counsel for the Deputy Commissioner did not press this objection. The other claims made in the notice were that decisions numbered 2 and 5 are not decisions made under an enactment and that Eighth Oupan Pty. Ltd. is not a person aggrieved by those decisions. There is force in those objections but this aspect is deferred until consideration is given to the motion under O. 20 r. 2.

The motion seeks an order that the application be dismissed on the ground that it fails to disclose a reasonable cause of action, is frivolous, vexatious and is an abuse of the process of the Court. Under O. 20 r. 2(2), the Court may receive evidence on the hearing of the motion. Eighth Oupan Pty. Ltd. relies upon an affidavit sworn by Leon Gorr who is a director of Eighth Oupan Pty. Ltd. and who is a partner in the firm of solicitors who are acting for Eighth Oupan Pty. Ltd. Mr Gorr exhibits a document obtained from the Deputy Commissioner pursuant to the Freedom of Information Act 1982. That document is dated later than 3 August 1984, the date of the notice under sec. 264 of the Assessment Act. The document relates to decisions taken by the Deputy Commissioner to serve Mr Gorr with a notice under sec. 264 of the Assessment Act and to commence a prosecution against him for failing to comply with that notice. The document contained a number of assertions adverse to Mr Gorr which he claims are untrue and which he claims indicate a prejudicial attitude to him on the part of the Deputy Commissioner, his firm of solicitors and clients of the firm, including Eighth Oupan Pty. Ltd. Much of the affidavit is directed to a defence to the assertions made in the document released from the Deputy Commissioner and in my opinion is not relevant for present purposes. Mr Gorr claims that the matters referred to in the document together with other matters contained in the affidavit, including the reference to a search by Federal Police of the offices of Mr Gorr pursuant to a search warrant under sec. 10 of the Crimes Act 1914 obtained at the request of the Deputy Commissioner and which subsequently was conceded to be invalid, indicate an attitude of bias and prejudice by the Deputy Commissioner towards him, his firm and those associated with him, including Eighth Oupan Pty. Ltd. He claims that the notice under sec. 264 of the Assessment Act directed of Eighth Oupan Pty. Ltd. is part of a campaign of harassment. The relevance of these allegations will be discussed later in these reasons.

It is trite law that before a claim is struck out on an interlocutory motion it must be shown that the claim cannot possibly succeed or any of the other similar expressions identifying the test to be applied, see Barwick C.J. in
General Steel Industries Inc. v. Commissioner for Railways (N.S.W.) (1964) 112 C.L.R. 125. The onus is a high one. I propose to apply the principles stated by the Chief Justice to the facts of this case. In so doing, consideration must be had to the nature of the decisions sought to be reviewed, to the fact that the application is a proceeding under the Judicial Review Act and to the fact the Deputy Commissioner has

ATC 4315

furnished a statement in writing under subsec. 13(1) of the Judicial Review Act.

Counsel for Eighth Oupan Pty. Ltd. stated the grounds relied upon for the review of the decisions, namely that there had been a breach of the rules of natural justice in connection with the making of the decisions, that procedures that were required by law to be observed in connection with the making of the decisions were not observed, that the Deputy Commissioner did not have jurisdiction to make the decisions and that the making of the decisions was an improper exercise of the powers conferred by the Assessment Act. In respect of the last ground, counsel claimed that the Deputy Commissioner took into account irrelevant considerations, that he had exercised the powers for a purpose other than those for which the powers were conferred, that the exercise of the power constituted an exercise of a discretionary power in bad faith and that the power had been exercised at the direction or behest of another person. As counsel for Eighth Oupan Pty. Ltd. contended, the essential basis for the review, apart from the natural justice ground, comprised one or other or both of two elements, namely the exercise of the powers for an improper purpose and the making of the decisions at the behest of somebody else.

The substance of the contention by counsel for Eighth Oupan Pty. Ltd. was that the matters needed to substantiate the grounds alleged were solely internal to the Deputy Commissioner and to the Taxation Office and could be ascertained only by discovery and interrogatories. For that reason, he contended that the Court should not exercise the power conferred by O. 20 r. 2 before discovery had been obtained and interrogatories administered and answered. In addition, counsel relied upon the matters contained in the affidavit of Mr Gorr. Relying upon all those matters, counsel submitted that there were real questions to be determined and that the motion should be refused. He stressed the nature of the motion being an interlocutory matter and the high onus cast upon the Deputy Commissioner.

It is true that in proceedings under the Judicial Review Act, discovery and interrogatories may be ordered but they should not be ordered as of course, see for example Lloyd v. Hartigan, Full Court, Federal Court of Australia, 9 May 1983, unreported.
W.A. Pines Pty. Ltd. v. Bannerman (1980) 41 F.L.R. 175 was not a proceeding under the Judicial Review Act, but nevertheless is relevant for present purposes. That case involved a consideration of the exercise of the power to issue and serve a notice under sec. 155 of the Trade Practices Act 1974, a power similar in nature to the power conferred by sec. 264 of the Assessment Act. At pp. 181-182 Brennan J. said:

``Though the power to require discovery be acknowledged, how should it be exercised? It depends upon the nature of the case and the stage of the proceedings at which the discovery is sought. In the present case, discovery is sought before there is a title of evidence to suggest that the Chairman did not have the requisite cause to believe which par. 6 of the statement of claim would put in issue. Some assistance was sought to be derived from cases where discovery had been given to a party before he was required to give particulars of his claim; cases such as
Ross v. Blakes Motors Ltd. [1951] 2 All E.R. 689, but in cases of that kind there is either an anterior relationship between the parties which entitled one to obtain information from the other, or sufficient is shown to ground a suspicion that the party applying for discovery has a good case proof of which is likely to be aided by discovery. This is not such a case. This is a case where a bare allegation is made by par. 6 of the statement of claim and, the paragraph being denied, the applicant seeks to interrogate the Chairman and ransack his documents in the hope of making a case. That is mere fishing. As Smithers J. said in Melbourne Home of Ford Pty. Ltd. v. Trade Practices Commission and Bannerman: `In the absence of such evidence the proceeding is essentially speculative in nature. In such circumstances for the court to assist the applicants by making available to them the processes of interrogatories and discovery would be to assist them in an essentially fishing exercise and from this the court on established principles should refrain' (1979) 36 F.L.R. at p. 460. His Honour's refusal of discovery was right and it ought not to be disturbed.''

The existence of the obligation to give a statement under sec. 13 of the Judicial Review Act requires greater caution to be exercised before discovery or interrogatories are ordered

ATC 4316

in proceedings for review under the Judicial Review Act.

In the present case, apart from the material in the affidavit of Mr Gorr, there is nothing to suggest that the decisions made by the Deputy Commissioner are vitiated by any of the grounds alleged by Eighth Oupan Pty. Ltd. As counsel for Eighth Oupan Pty. Ltd. so readily conceded, Eighth Oupan Pty. Ltd. desires to obtain discovery against and to interrogate the Deputy Commissioner. To adopt the colourful language of Brennan J., Eighth Oupan Pty. Ltd. is seeking to interrogate the Deputy Commissioner and to ransack his documents in the hope of making a case. This constitutes mere fishing.

The material contained in the affidavit of Mr Gorr does not assist Eighth Oupan Pty. Ltd. That material does not constitute evidence to support any of the contentions made on behalf of Eighth Oupan Pty. Ltd. The Commissioner of Taxation has the general administration of the Assessment Act, see sec. 8 of that Act. Under sec. 8 of the Taxation Administration Act 1953, the Commissioner has power to delegate to a Deputy Commissioner all or any of the Commissioner's powers under the Asseessment Act. The Deputy Commissioner issued and served the notice under sec. 264 of the Assessment Act pursuant to a delegation from the Commissioner, see the notice itself. The notice is designed to facilitate the investigative powers conferred by the Assessment Act. The mere fact of the failure of one method of investigation, the search warrant under sec. 10 of the Crimes Act, or other actions taken against Mr Gorr, or companies with which he is associated, cannot prevent the Deputy Commissioner exercising powers of investigation conferred upon him by the Assessment Act. To hold otherwise, would enable taxpayers to avoid investigation indefinitely.

On all the material before the Court, I am satisfied that Eighth Oupan Pty. Ltd. has not shown any basis for the claim made under the Judicial Review Act. I am conscious of the heavy onus placed upon the Deputy Commissioner in seeking to obtain the order under O. 22 r. 2. After considering all the material before the Court, I am satisfied that the proceedings are in the nature of a fishing expedition by which Eighth Oupan Pty. Ltd. is attempting to delay the production of the documents enumerated in the notice under sec. 264 of the Assessment Act. In my opinion, the application fails to disclose a reasonable cause of action, is frivolous, vexations and is an abuse of the process of the Court. Accordingly, the application should be dismissed with costs.

In these circumstances, it is not necessary to consider the objection to competency filed by the Deputy Commissioner.

For similar reasons, the application by Sixth Ravini Pty. Ltd. should be dismissed with costs.

THE COURT ORDERS THAT the applications be dismissed with costs.

(Settlement and entry of Orders is dealt with in O. 36 of the Rules of Court.)


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