Bailey & Others v. Federal Commissioner of Taxation.

Judges: Barwick CJ
Gibbs J
Mason J

Jacobs J
Aickin J

Court:
Full High Court

Judgment date: Judgment handed down 4 March 1977.

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Jacobs J.: A court has inherent power to order particulars. It is far more usual to order particulars of an allegation or claim which the party advancing it bears the burden of proving than particulars of a matter which may be alleged without undertaking the burden of its proof; but this is so because the latter case is comparatively rare. The present is such a case because of the operation of sec. 190(b). But rules or practices as to particulars must be sufficiently flexible to allow all parties to an action or matter to meet with necessary evidence and without delay to court processes questions which may be raised at the hearing. Their purpose is to concentrate and define the issues of fact and to prevent surprise and consequent delay.

At the same time it must be borne in mind that particulars do not constitute a pleading and do not ordinarily define issues of law. They must tend to advance the clear and speedy determination of all the questions which fall to be determined. They are not a net in which the ready and comprehensive determination of the ultimate issue can become enmeshed and delayed.

Although particulars are essentially particulars of fact and not of law, when there are no sufficiently defined issues it is not always possible to obtain particulars of facts without first ascertaining whether those facts will be relevant to questions which may be raised. In the present case it is therefore necessary for the taxpayer and the Court to know the basis of the assessments. Particulars in this sense have been given by the Crown Solicitor in his letter of 18th February 1976. The sums, it is stated, are included in the assessable incomes of the taxpayers by the operation of sec. 260. By the adjustment sheets it is further stated that the income is a proportion of a distribution of money made by Bailey Holdings Pty. Limited on 28th April 1969. That is all the taxpayers have been told. It is not enough to enable them to present to the Court on their appeals any comprehensive or coherent case in rebuttal of the Commissioner's claim that they derived assessable income from a distribution which was made by Bailey Holdings Pty. Limited on 28th April 1969. Particulars are needed which will define the manner in which sec. 260 is claimed by the Commissioner to have operated so that payments made by Bailey Holdings Pty. Limited on 28th April 1969 were income of the appellants. What payments? To whom in fact - the taxpayers

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ATC 4101

or to another or others? What contract, agreement or arrangement, or part or parts thereof, will the Court be asked to find void as against the Commissioner whereby payments by Bailey Holdings Pty. Limited on 28th April 1969 come to be treated as payments to and assessable income of the appellants? Further, it is necessary to define the facts which may be said to show, or tend to show, a purpose of any or all of the kinds referred to in sec. 260. The purpose or purposes may be sought to be inferred from the impugned contract, agreement or arrangement. If so, this should be stated; but if the purpose is to be said to appear from other circumstances, those other circumstances should be made known.

I would only add that I agree with the reasons given by Aickin J. for concluding that particulars may properly be required of the Commissioner in this case, and I agree with the form of order proposed.