Federal Court of Australia
CUB Australia Holding Pty Ltd v Commissioner of Taxation [2021] FCAFC 171
ORDERS
CUB AUSTRALIA HOLDING PTY LTD (ABN 99 615 290 849) Appellant | ||
AND: | COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The appellant pay the respondent’s costs of the appeal, to be assessed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
THE COURT:
1 The appellant (CUB) appeals from a judicial review decision by a judge of this Court. The respondent (the Commissioner) issued a Notice on 4 March 2020 pursuant to s 353-10 of Sch 1 to the Taxation Administration Act 1953 (Cth) (the TAA) requesting CUB to provide certain details about documents over which CUB claimed legal professional privilege (LPP). CUB advanced four grounds of review at first instance. The first three grounds were dealt with by the primary judge as a separate question. The fourth ground was deferred.
2 The grounds argued below challenged the validity of the Notice on the basis that the Commissioner’s purpose or substantial purpose in seeking the information was to determine the validity of CUB’s actual LPP claims. The Commissioner’s position was that he was simply seeking information which would enable him to form a view as to whether or not to challenge CUB’s claim for LPP in a court.
3 The heart of CUB’s case before the primary judge, and on appeal, is that the Commissioner’s “primary purpose, or alternatively substantial purpose” for issuing the Notice was improper. In particular, CUB argues that the Commissioner’s “true purpose, or in the alternative … at least, a substantial purpose” was to arrogate to himself the determination of whether or not CUB’s LPP claims were made out when such determination could only be made by a court. It is not in dispute that such a determination would be for a court. The primary judge disagreed that the Commissioner had such a purpose (or substantial purpose).
4 For reasons which follow, the primary judge was correct and the appeal must be dismissed.
EVIDENCE BEFORE THE PRIMARY JUDGE
5 Mr Stewart Grieve, a solicitor representing CUB swore four affidavits and Mr Christopher Ferguson, an Assistant Commissioner of Taxation, who made the decision to issue the Notice, affirmed two affidavits.
6 Mr Grieve’s affidavits primarily exhibited documents, specifically:
(a) correspondence exchanged between the parties over a number of years;
(b) copies of the schedules containing CUB’s LPP claims and accountants’ concession claims over documents that were responsive to earlier statutory notices issued by the Commissioner;
(c) correspondence exchanged before the issuing of the Notice;
(d) notes of a telephone conversation between the parties’ representatives before the issuing of the Notice;
(e) CUB’s request for a statement of reasons for issuing the Notice pursuant to s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth); and
(f) the Commissioner’s statement of reasons dated 17 March 2020 (the s 13 reasons).
7 Additional correspondence between the parties was also produced in Mr Ferguson’s affidavit and a file note of a further telephone conversation between representatives for the parties. Mr Ferguson deposed that the s 13 reasons accurately recorded his reasons for deciding to issue the Notice. Mr Ferguson was not cross-examined on any aspect of his evidence, including his affirmed statement that the s 13 reasons accurately recorded his reasons for deciding to issue the Notice.
8 In totality, these exchanges reveal a history over some years of the Commissioner seeking documents from CUB and CUB’s resistance to provision of such documents, or certain information in relation to them, on the grounds of LPP.
CONTENTIONS BEFORE THE PRIMARY JUDGE
9 Before the primary judge, CUB placed considerable emphasis on the content of historical correspondence which had ensued between the parties over some years and on some of the earlier requests and statements in correspondence. The primary judge found that while some of those earlier statements might have presented a difficulty for the Commissioner if such statements reflected his position at the date of the Notice, the better test of his purpose at the time of the Notice was Mr Ferguson’s statement of s 13 reasons affirmed by affidavit, and the content of the correspondence much closer to the time of the issuing of the Notice and the Notice itself. The Commissioner accepted that the historical documentation was admissible and relevant, but focussed on the weight of the later correspondence and statements. The Commissioner accepted that there were statements going both ways in the earlier correspondence.
10 The s 13 reasons were in dispute. Before the primary judge, CUB adopted the challenging argument also advanced in this Court that [40.5] of the s 13 reasons did accurately express the Commissioner’s purpose, but that [40.4] and [40.6] of those reasons should be rejected. This argument was advanced without having cross-examined Mr Ferguson to that effect or at all. Paragraph 40 of the s 13 reasons was in these terms (references to “ABI Australia” are to CUB as it was formerly known and “SABM Australia” was CUB’s predecessor, prior to 2016, as head company of the SAB Group. SABM Australia was also formerly known as “SABMiller Australia”: see the primary judge’s reasons (at [16]-[19]):
4. I made the decision to issue the 4 March 2020 [Notice] for the following reasons:
40.1 The Commissioner is engaged in considering SABM Australia’s objections to the amended assessments issued on 12 September 2019, in order to make a decision pursuant to section 14ZY of the [TAA]. The Commissioner is also assessing SABM Australia’s possible liability to administrative penalty pursuant to Division 284 to Schedule 1 of the [TAA] in respect of the notices of amended assessment issued on 12 September 2019.
40.2 The Commissioner is also undertaking the second SABM audit – a process that may produce information relevant to assessments or amended assessments of income tax payable by SABM Australia for the 2014, 2015, 2016 and 2017 income years, pursuant to sections 166 and 170 of the Income Tax Assessment Act 1936 (the ITAA 1936). When the Commissioner has finished considering the question of assessments and amended assessments for those income years, the Commissioner may also need to assess SABM Australia’s possible liability to administrative penalty pursuant to Division 284 to Schedule 1 of the [TAA].
40.3 in addition, the Commissioner is undertaking the ABI Australia audit – a process that may produce information relevant to assessments or amended assessments of income tax payable by ABI Australia for the 2017, 2018, 2019 and 2020 income years, pursuant to sections 166 and 170 of the ITAA 1936. When the Commissioner has finished considering the question of assessments and amended assessments for those income years, the Commissioner may also need to assess ABI Australia’s possible liability to administrative penalty pursuant to Division 284 to Schedule 1 of the [TAA].
40.4 The documents sought in the 30 May 2018 notice and in respect of which LPP has been claimed remain relevant to the task of investigating, and in due course determining:
(a) the amount of SABMiller Australia’s income tax assessments and SABMiller Australia’s possible liability to administrative penalties; and
(b) the amount of ABI Australia’s income tax assessments and ABI Australia’s possible liability to administrative penalties;
and are relevant to the proper discharge by the Commissioner of his duty to:
(c) administer the taxation laws, including the [TAA] and the ITAA 1936;
(d) accurately ascertain the extent of the tax liability of each of SABMiller Australia and ABI Australia; and
(e) pursue the recovery of tax-related liabilities.
40.5 The information sought in the 4 March 2020 [Notice] will assist the Commissioner to determine:
(a) whether each document sought in the 30 May 2018 notice, and in respect of which privilege has been claimed, was brought into existence for the dominant purpose of requesting or providing independent legal advice;
(b) whether privilege in any such document has been waived; and
(c) whether the claim that each document is privileged is well-founded, or whether the Commissioner should continue to press for production of all or some of the documents sought pursuant to the 30 May 2018 notice so as to assist the Commissioner in the proper discharge of the Commissioner’s duty referred to in paragraph 40.4 above.
40.6 Accordingly, the information sought in the 4 March 2020 [Notice] is required by the Commissioner for the purpose of the administration of a taxation law – in particular, the [TAA] and the ITAA 1936.
40.7 ABI Australia has not provided the information now sought in the 4 March 2020 [Notice] despite previous requests to do so.
11 The argument for CUB that [40.4] and [40.6] should be rejected will be addressed in due course. It was not accepted by the primary judge.
12 After examining the history of dealings between the parties, the primary judge concluded (at [10], [80] and [92]) that the Commissioner’s purpose (or substantial purpose) was to obtain information that he considered necessary to determine whether to accept or challenge CUB’s LPP claims in respect of the relevant documents. His Honour said further (at [10]):
… Further, I find that the Commissioner considered that the documents, which were responsive to the May 2018 Notice, remained relevant to the statutory functions he was still carrying on. In light of these findings, I conclude that the March 2020 Notice was issued for the purpose of the administration of a taxation law.
13 The primary judge also relied upon the factual material in Mr Ferguson’s affidavit to conclude that [40.4] and [40.6] of the s 13 reasons, which CUB asked him to ignore, should in fact be accepted. The surrounding circumstances, together with the absence of cross-examination of Mr Ferguson were determinative. It was accepted, as it is on appeal, that the Court was not bound to take the s 13 reasons at face value. The Court may test those reasons as it sees fit. As it happens, little in the reasons of the primary judge or in the reasons of this Court turns on the content of [40.4] or [40.6]. Even [40.5] is relatively neutral in ascertaining the purpose. Nothing turns on the word “determine” in [40.5], but read as a whole with particular reference to [40.5(c)], it is tolerably clear that the Commissioner was saying that he needed the information to decide for himself whether to press for production of the documents. But, as CUB noted, the fact that the Commissioner has so described his purpose does not bind the Court to accept that description.
14 By the first ground of appeal, it is argued that the primary judge erred by failing to apply the correct test as set out in the decisions of the High Court in Thompson v Randwick Municipal Council [1950] HCA 33; (1950) 81 CLR 87 (at 106) and Samrein Pty Ltd v Metropolitan Water Sewerage and Drainage Board (1982) 56 ALJR 678; (1982) 41 ALR 467 (at 468-469) which required him to consider whether there was a substantial and improper purpose. It is said that:
(a) the primary judge did not refer to, or engage with, these authorities;
(b) it is possible for the exercise of a statutory power to be motivated by multiple purposes. The assessment of the propriety of those various purposes is an objective one;
(c) the primary judge sought to determine whether the Commissioner’s “primary purpose” in issuing the Notice was authorised. That was not the correct approach in the present circumstances; and
(d) the primary judge was required to determine whether the Notice was invalid because of a further substantial and improper purpose (namely, to determine the validity of CUB’s LPP claims). The primary judge failed to undertake that task.
15 By the second ground of appeal, it is asserted that having accepted that there were multiple events disclosed in the evidence (when viewed in isolation) that were capable of supporting CUB’s case (at [81]-[83]), the primary judge erred by failing to:
(a) consider whether the cumulative effect of the totality of the evidence supported an inference that the Commissioner was motivated by a substantial and improper purpose in issuing the Notice; and
(b) conclude that the cumulative effect of the totality of the evidence was that the Commissioner should be found to have been motivated by a substantial and improper purpose in issuing the Notice.
16 A purported exercise of statutory power by a public authority is not authorised and is therefore beyond power and invalid if it is exercised for an improper purpose or for improper purposes: R v Toohey; Ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170 (at 193, 215-216, 264-265) and Arthur Yates & Co Pty Ltd v Vegetable Seeds Committee [1945] HCA 55; (1945) 72 CLR 37 (at 67-68). Every statutory power, however widely expressed, is limited by the text, subject matter, scope and purpose of the statute. The purpose of the grant of a power or the purpose for which the power may be exercised and the outer limits of the exercise of the power are generally speaking, to be derived from the statute conferring it: Northern Land Council (at 233) and Haneef v Minister for Immigration and Citizenship [2007] FCA 1273; (2007) 161 FCR 40 (at [287]). The notion of impropriety in this context does not necessarily mean that the repository of the power was acting mala fide or dishonestly, and an action can be improper without the repository being aware that the conduct was improper: Northern Land Council (at 233).
17 The relevant purpose or purposes for which a power is exercised is a question of fact: Samrein (at 469) and Reid v Sinderberry [1944] HCA 15; (1944) 68 CLR 504 (at 574). It is to be determined objectively by reference to admissible evidence. Where a statutory power is exercised for multiple purposes and one of those purposes is improper, the exercise of the power will be vitiated if the improper purpose was a substantial purpose: Thompson (at 106), as affirmed in Minister for Public Works & Local Government v Duggan [1951] HCA 29; (1951) 83 CLR 424 (at 445-446); Samrein (at 468-469); and Planning Commission (WA) v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30 (at [58]). An improper purpose does not become a proper purpose merely by asserting that the power was exercised for a proper purpose.
18 The doctrine of LPP affords an immunity from providing certain documents or information concerning legal matters, the production of which might otherwise be compellable: Glencore International AG v Federal Commissioner of Taxation [2019] HCA 26; (2019) 265 CLR 646 (at [12] and [20]-[25]). In the absence of a specific statutory regime, it is for a court of competent jurisdiction to determine the validity of disputed LPP claims: Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; (1997) 188 CLR 501 (at 590) and Fieldhouse v Commissioner of Taxation (1989) 25 FCR 187 (at 202 and 217).
19 In the present situation, there is no challenge to the entitlement to issue a notice. It is also accepted that it was for CUB to establish that the Notice was issued for an improper purpose, but CUB also argued (correctly) that in exercising a coercive power, the Commissioner should not impinge upon rights which are not clearly abrogated by the grant of the power: LHRC v Federal Commissioner of Taxation [2015] FCAFC 184; (2015) 239 FCR 240 (at [10]).
20 The primary judge found that the Commissioner’s “primary or substantial” purpose in issuing the Notice was to decide whether or not to challenge CUB’s LPP claims. CUB argues, however, that if even if that conclusion was open (which it does not accept, and is directly challenged under the second ground), that was not the end of the inquiry because:
(a) first, CUB’s case did not require that the Commissioner’s dominant or primary purpose be improper or unauthorised in order to succeed. A substantial illegitimate purpose amongst multiple other purposes was sufficient to vitiate the purported exercise of statutory power. We do not understand this proposition to be seriously in dispute. What is essentially in dispute is what the primary judge found and was entitled to find;
(b) secondly, CUB says the primary judge did not properly apply the principles set out by the High Court in Thompson, as affirmed in Duggan and in Samrein, in reaching his decision. CUB says that the primary judge, having been taken to the relevant principles, does not appear to have addressed them;
(c) thirdly, CUB argues that the primary judge failed to address CUB’s alternative proposition that underlying the Notice there was (co-existing with any authorised dominant or primary purpose) a substantial and improper collateral purpose, namely, the desire to determine CUB’s LPP claims.
21 CUB complains that the primary judge failed to address part of CUB’s case or to apply the correct legal test which, relevantly to this appeal, would be an error of law.
Ground 1- consideration
22 These contentions cannot be accepted. A fair reading of the primary judge’s reasons for decision makes it clear that he was entirely aware of the reasoning and the ratio in Thompson and Samrein on which CUB relied. CUB made clear that those cases stood for the proposition that “a substantial purpose among multiple purposes if illegitimate will vitiate the exercise of power”. That argument was expressed in those terms in the written submissions and was also clearly reflected in oral argument in exchanges between senior counsel for CUB and his Honour. In oral submissions, senior counsel submitted that the evidence revealed that the Commissioner had “dual purposes” in issuing the Notice. This ensued in the following exchange:
HIS HONOUR: So what do you say the dual purposes were?
[SENIOR COUNSEL]: Well, if there was a purpose of making a decision without testing, there was an additional purpose of determining. Which all of the conduct leading up to this point reviews, the conduct and the lack of conduct, we should say. Now, we say, your Honour, the critical indicators of the Commissioner’s true purpose are, first - - -
HIS HONOUR: Sorry, the true, what you say is the true purpose is the Commissioner arrogating to himself the determination by himself of whether or not privilege applied?
[SENIOR COUNSEL]: We say that that is his true purpose, or in the alternative, your Honour, at least a substantial purpose.
HIS HONOUR: Yes.
[SENIOR COUNSEL]: And a substantial purpose is enough …
(Emphasis added.)
23 CUB is correct to say that his Honour’s reasons do not expressly refer to Thompson or Samrein, but it is quite clear from what his Honour did articulate in his reasons, and from the exchanges set out above, that he clearly understood that the task required was to identify the purpose of the Notice and, if there was more than one, whether any of those purposes were both substantial and improper.
24 The nature of the finding reached by his Honour, however, was such that it was unnecessary to go further to identify a substantial purpose, as his Honour found that “the purpose (or substantial purpose)” of the Commissioner in issuing the Notice was to determine whether to accept or challenge the LPP claims. CUB accepted that approach to be legitimate in the course of oral exchanges with his Honour, where the following occurred:
HIS HONOUR: Sorry, [senior counsel]. If the position was that the Commissioner’s purpose was not what I just referred to a moment ago, but was rather to decide whether he accepted the LPP claims or wanted to take it further, would that be a legitimate purpose?
[SENIOR COUNSEL]: The answer to that is, “Yes”, your Honour. But we say that the purpose if not the purpose, as a question of fact, that your Honour should conclude with, or if it is, it was at least – it was at least accompanied by other purposes which were substantial purposes sufficient to vitiate the notice.
(Emphasis added.)
25 In this particular case, the primary judge found that there was only one purpose (or only one substantial purpose) rather than multiple purposes. Once that finding was reached, it was unnecessary to further consider CUB’s alternative proposition that there was some other collateral or incidental purpose that was improper which could also be said to be a “substantial purpose”. That finding was simply not logically possible. There was no need to consider the argument that there were multiple purposes, one of which was improper and substantial because the initial premise for advancing that argument had been rejected.
26 The primary judge did not fail to address any part of CUB’s case or take an incorrect approach in any respect in relation to the matters advanced in ground 1, or otherwise.
27 Ground 1 cannot succeed.
28 Ground 2 is essentially a challenge to a finding of fact. No suggestion was raised for the Commissioner that this Court was not in as good a position as the primary judge to draw relevant inferences from the content of the substantial body of documents disclosed in the proceeding.
29 CUB argues that when all that material is taken into account, the totality of the evidence disclosed that at least a substantial collateral purpose of the Commissioner in issuing the Notice was to determine the validity of CUB’s LPP claims. Both parties accepted that it was not for the Commissioner to determine the validity of the LPP claims. The Commissioner at all times has asserted before the primary judge and this Court that a proper understanding of the relevant documents close to the time of issuing the Notice was to enable the Commissioner to form a view as to whether or not to challenge CUB’s LPP claims, a challenge which would be determined by a court (or perhaps some other agreed independent person).
30 In that regard, it is important to consider the relevant part of the Notice (its schedule), which is as follows:
Schedule
1. For every document responsive to the notice issued under section 353-10 of Schedule 1 to the [TAA] on 30 May 2018 that was not wholly produced due to claims for legal professional privilege, provide:
(a) the title of the document. Where the document is an email, the title of the document means the subject line of the email;
(b) the name of the person who authored the document;
(c) the name of each person to whom the document was communicated; and
(d) where the document is an email, for each person who received the email, whether the email was sent directly to the person or copied to the person.
31 The content of the schedule to the Notice was much reduced from an immediately preceding draft schedule on which there had been negotiations between CUB and the Commissioner.
32 What is also clear is that the information sought by the Commissioner, if provided, could never be sufficient alone to enable the Commissioner to determine the validity of CUB’s LPP claims.
33 Nonetheless, CUB relies on the fact that the primary judge acknowledged (at [83]) that there was evidence from earlier communications that if taken in isolation, was capable of supporting an inference at an earlier time that the Commissioner was motivated by an improper purpose of determination of CUB’s LPP claims. In this regard, CUB points to the Commissioner’s correspondence of 17 September 2018, 26 July 2019, 9 August 2019 and 4 March 2020. The relevant content of those documents is as follows:
17 September 2018
…
• The provision of a consolidated list of accountants’ concession and legal professional privilege claims is acceptable. In order to comply with the requirements of the notices, a list of claims must be provided by the extended due date of the notices. Additionally, it should be clear from the consolidated list of claims to which question each of the covered documents relate. Any claims for the accountants’ concession or legal professional privilege must be supplemented with information relevant to determining the appropriateness of each claim. The ATO’s website details information that is relevant to determining claims for accountants’ concession and legal professional privilege, with links provided below.
…
26 July 2019
…
12. We note that merely disclosing the processes connected to making LPP claims is unlikely to put the Commissioner in a position to make an informed assessment of each claim.
…
9 August 2019
…
13. We reiterate that the quantum of your LPP claims is not, in itself, a concern. As stated in our letter dated 26 July 2019, our concerns with your LPP claims arise due to the quantum of claims in combination with the limited information provided to allow us to assess the validity of each claim.
…
4 March 2020
…
3. The Commissioner requires the particulars identified in the 6 December email to allow the Commissioner evaluate the legitimacy of your client’s LPP claims over the documents that were the subject of the notice issued on 30 May 2018 – in particular, to allow the Commissioner to make an informed judgement as to:
3.1 whether each document, for which LPP has been claimed, was brought into existence for the dominant purpose of requesting or providing independent legal advice, or reveals a communication made for that purpose; and
3.2 whether LPP in any of those documents has been waived.
4. The notice does not require you or your client to disclose the substance of the communication contained in any document.
5. We remain of the view that the information that you have provided about the documents subject to the LPP claims is insufficient to enable the Commissioner to consider the matters identified in paragraph 3 above.
6. The Commissioner also requires those additional particulars in order to make an informed decision as to whether an alternative dispute resolution process would be an appropriate method of resolving any disputed claims.
(Emphasis added.)
34 The primary judge referred to the 17 September 2018 correspondence (at [32] and [83]) of his decision where his Honour said:
32 On 17 September 2018, the Commissioner wrote to CUB identifying the information that the Commissioner required to substantiate legal professional privilege claims and included links to the relevant legal professional privilege forms on the ATO’s website. The Commissioner also noted that a list of legal professional privilege claims must be provided by the extended due date for the earlier notices. The letter included the statement that:
Any claims for the accountants’ concession or legal professional privilege must be supplemented with information relevant to determining the appropriateness of each claim.
…
83 Also, some of the earlier communications on behalf of the Commissioner, if taken in isolation, may suggest that the Commissioner was seeking further particulars in order to determine the legal professional privilege claims. I refer to the letter dated 17 September 2018 (see [32] above), paragraph 12 of the letter dated 26 July 2019 (see [45] above), and paragraph 13 of the letter dated 9 August 2019 (see [47] above).
35 The primary judge also discussed the content of [12] in the 26 July 2019 communication where his Honour said (at [45] and [83]):
45 On 26 July 2019, the Commissioner wrote to CUB acknowledging the offer in CUB’s 6 June 2019 letter to share their processes for making legal professional privilege claims. The letter included the following statements:
9. We continue to have concerns about the basis of the LPP claims made in relation to the formal notices issued to you …
10. We respect your right to claim LPP. However, our concerns stem from the quantum of your LPP claims (in excess of 20,000) in combination with the limited information provided to allow us to assess the validity of each claim.
11. We acknowledge your offer contained in your letter of 6 June 2019 to explain the processes adopted in connection with your claims of LPP. The Commissioner agrees that the mere disclosure of the processes which resulted in the making of LPP claims would not disclose the substance or gist of the advice associated with each claim and would therefore not be a waiver of that privilege.
12. We note that merely disclosing the processes connected to making LPP claims is unlikely to put the Commissioner in a position to make an informed assessment of each claim.
[primary judge’s emphasis]
…
83 Also, some of the earlier communications on behalf of the Commissioner, if taken in isolation, may suggest that the Commissioner was seeking further particulars in order to determine the legal professional privilege claims. I refer to the letter dated 17 September 2018 (see [32] above), paragraph 12 of the letter dated 26 July 2019 (see [45] above), and paragraph 13 of the letter dated 9 August 2019 (see [47] above).
36 As to the 9 August 2019 communication, the primary judge referred to this content at [47] of his reasons, where his Honour said:
47 On 9 August 2019, the Commissioner wrote to CUB reiterating his view that CUB had not provided sufficient particulars in respect of its legal professional privilege claims. The Commissioner’s letter also stated that:
13. We reiterate that the quantum of your LPP claims is not, in itself, our concern. As stated in our letter dated 26 July 2019, our concerns with your LPP claims arise due to the quantum of claims in combination with the limited information provided to allow us to assess the validity of each claim.
14. We reject the assertion in your letter dated 31 July 2019 that you have provided sufficient information to allow the Commissioner to form a view in relation to the claims made. It remains our view that you have not provided sufficient particulars in respect of your claims for LPP.
15. Moreover, where LPP claims have been made over only part of documents, the parts of those documents that have been redacted exceed what you would be entitled to redact on the basis of LPP.
16. Even where a document records a communication for the requisite dominant purpose, a privilege holder may redact the document only to the extent necessary to prevent the disclosure of the communication for that purpose.
17. The redactions made to the documents, which reflect the same level of detail as provided in your schedule, entirely obscure the participants in the correspondence, and the subject or title of the correspondence (which we would not ordinarily expect to disclose the substance or gist of any advice given). The redactions have left us unable to even identify which part claim listed in your schedule of LPP claims relates to which partially redacted document.
18. Further, you have not sufficiently described the purpose(s) of the relevant communications to the degree required to support a claim for privilege, or to permit the Commissioner to engage with you regarding the claims. The schedules provided include descriptions which are conclusory in nature.
[primary judge’s emphasis]
37 As to the Notice itself and accompanying letter of 4 March 2020, this was dealt with by the primary judge in his reasons (at [81]) where his Honour said:
It may be accepted that parts of the [s 13 reasons], and some of the communications made on behalf of the Commissioner, if taken in isolation, suggest that the Commissioner sought the information set out in the March 2020 Notice in order to determine or resolve CUB’s legal professional privilege claims. In particular, in the covering letter dated 4 March 2020, enclosing the March 2020 Notice, it was stated that the Commissioner required the particulars:
… to allow the Commissioner to make an informed judgement as to:
3.1 whether each document, for which LPP has been claimed, was brought into existence for the dominant purpose of requesting or providing independent legal advice, or reveals a communication made for that purpose; and
3.2 whether LPP in any of those documents has been waived.
38 Part of the Commissioner’s s 13 reasons (at [40.5(a)] and [40.5(b)]) is also relied upon by CUB to demonstrate that at least a substantial collateral purpose of the Commissioner in issuing the Notice was to determine the validity of the LPP claims. The primary judge dealt with this content in his reasons (at [82]) where his Honour said:
Similarly, paragraphs 40.5(a) and (b) of the Statement of Reasons stated:
40.5 The information sought in the 4 March 2020 [Notice] will assist the Commissioner to determine:
(a) whether each document sought in the 30 May 2018 notice, and in respect of which privilege has been claimed, was brought into existence for the dominant purpose of requesting or providing independent legal advice;
(b) whether privilege in any such document has been waived; …
39 CUB also draws on the Commissioner’s correspondence of 1 July 2016 (at the second paragraph), where the Commissioner said:
…
We have attached a spreadsheet outlining all LPP claims made by SABMiller Australia during the audit process. Each claim contains corresponding observations relating to the sufficiency of the information provided to substantiate the claim and where details are lacking. These comments were endorsed by officers of the Information Gathering and Access Network. This document has been provided to you for your feedback and comment.
…
40 Reliance is also placed by CUB on the correspondence of 19 November 2018, exhibited by Mr Ferguson to one of his affidavits. In this document, the Australian Taxation Office (ATO) said under the heading of “Claims for LPP”:
As previously outlined in our letter of 1 November 2018, where you have identified documents which you consider can be withheld on the basis of valid LPP or AC claims, details substantiating those claims should be part of your response and provided when the Onshore Notice and Offshore Notice (Notices) are due.
If you anticipate that this information will not be provided by this time, we request that you outline in detail the reasons why, the process you are undertaking to substantiate your claims, including the resources being allocated to this task, and a definitive date agreeable to the Commissioner of when this information will be provided.
To assist you, we will provide you with additional time to fulfil your obligations to substantiate your LPP and AC claims by extending the due date of the Onshore Notice to align with the Offshore Notice.
(Emphasis added.)
41 CUB relies upon the content of an ATO letter to it on 9 August 2019, where in relation to LPP and particularly the ownership of LPP, the ATO said:
…
Ownership of LPP claims
6. LPP belongs to the client, not to the relevant adviser. In the case of the claims made in relation to documents responsive to formal notices issued to your adviser, PricewaterhouseCoopers (PwC), the Commissioner has acted on the basis that PwC made the claims pursuant to its obligations as the adviser to the AB Inbev group (and, we infer, its predecessors, including the SABMiller group).
7. In the absence of any advice to the contrary, the Commissioner will continue to treat the claims made by the AB Inbev group’s advisers, as being made on its behalf.
8. If you do not wish to maintain your LPP claims over documents responsive to formal notices issued to PwC, those documents must be provided to the Commissioner immediately.
9. In relation to LPP claims over documents responsive to formal notices issued to PwC that you do wish to maintain, the Australian Government Solicitor (AGS) has communicated the Commissioner’s views to King & Wood Mallesons (KWM) on the particulars provided in support of your claims. We confirm the Commissioner’s views as follows:
a. The further particulars provided by KWM on behalf of PwC on 12 April 2019 in relation to your LPP claims over documents responsive to formal notices issued to PwC in fact reduced the level of detail included in previous schedules of your LPP claims.
b. The provision of further LPP schedules which reduce the level of detail provided in support of your claims will not assist with the resolution of the dispute over your claims and will result in unnecessary delay and costs to all parties involved.
10. As communicated by AGS on behalf of the Commissioner to KWM, the Commissioner continues to proceed on the assumption that you will not instruct your advisers to provide more detailed particulars of the kind that would advance resolution of the dispute over your LPP claims.
(Emphasis added.)
42 The letter continued:
…
13. We reiterate that the quantum of your LPP claims is not, in itself, our concern. As stated in our letter dated 26 July 2019, our concerns with your LPP claims arise due to the quantum of claims in combination with the limited information provided to allow us to assess the validity of each claim.
14. We reject the assertion in your letter dated 31 July 2019 that you have provided sufficient information to allow the Commissioner to form a view in relation to the claims made. It remains our view that you have not provided sufficient particulars in respect of your claims for LPP.
15. Moreover, where LPP claims have been made over only part of documents, the parts of those documents that have been redacted exceed what you would be entitled to redact on the basis of LPP.
16. Even where a document records a communication for the requisite dominant purpose, a privilege holder may redact the document only to the extent necessary to prevent the disclosure of the communication for that purpose.
17. The redactions made to the documents, which reflect the same level of detail as provided in your schedule, entirely obscure the participants in the correspondence, and the subject or title of the correspondence (which we would not ordinarily expect to disclose the substance or gist of any advice given). The redactions have left us unable to even identify which part claim listed in your schedule of LPP claims relates to which partially redacted document.
18. Further, you have not sufficiently described the purpose(s) of the relevant communications to the degree required to support a claim for privilege, or to permit the Commissioner to engage with you regarding the claims. The schedules provided include descriptions which are conclusory in nature.
19. Additionally, it is clear from the information already provided to the ATO that the multidisciplinary companies and firms identified in your schedules provided a significant amount of commercial advice to you. The need for appropriate identification regarding all of the purposes of each communication over which LPP has been claimed is clear in these circumstances.
20. Contrary to your statement in the final paragraph of page three of your letter dated 31 July 2019, it is not the Commissioner’s view that an assessment of the validity of each individual LPP claim is inappropriate or impracticable. Rather, it is the Commissioner’s view that prior to withholding a document (or part of a document) from production, there must be a positive conclusion that there is an entitlement to withhold that document from production. It is unclear why the merits of any particular ‘sample’ of those claims would be ‘representative’ of the merits of the other claims that had been made. In the circumstances, we do not consider that an independent review process involving a ‘representative’ sample of the claims would be helpful in resolving the issues in dispute.
Disclosure of the processes connected to making the LPP claims
21. Should you consider that the Commissioner would be assisted in hearing an explanation of the processes connected to making LPP claims in order to progress the outstanding LPP issues, we are happy to consider such an explanation as suggested in your letters dated 6 June 2019 and 31 July 2019. While your explanation may assist the Commissioner, we cannot give an indication as to the extent to which it will address our concerns without first hearing the explanation.
Meeting with the Deputy Commissioner
22. Should you still wish to meet with the Deputy Commissioner, we propose a meeting be held at the ATO on 3 September 2019.
(Emphasis added.)
43 CUB asserts that all this material, viewed collectively, illustrates that by expressing his contentions in the way set out in the correspondence, the Commissioner makes it clear that he was at all times seeking to actually determine CUB’s LPP claims. At the very least, CUB argues, it is consistent with the proposition that in issuing the Notice the Commissioner had a substantial purpose of seeking to determine CUB’s LPP claims. CUB stresses that the time for providing the sort of particulars sought by the Commissioner is when the validity of the claims for LPP is being determined by the Court. Before such a time, there is no requirement to provide such particulars. It follows, CUB argues, that the request by the Commissioner for particulars to substantiate or support LPP tended to demonstrate objectively that the requests were motivated by a substantial improper purpose, namely, the actual determination of the LPP claims.
44 In particular, CUB contends that when the alleged insufficiency of particulars or information to substantiate the LPP claims is coupled with the Commissioner’s various statements (set out below), then the substantial improper purpose is further demonstrated. The Commissioner said that he was seeking to:
(a) “make an informed decision about … [the LPP] claims” (the 27 August 2015 letter);
(b) “evaluate the legitimacy of” the LPP claims and “make an informed judgement” as to LPP matters (the 4 March 2020 letter);
(c) determine “the appropriateness of each claim” (the 17 September 2018 letter);
(d) “assess the validity of each [LPP] claim” (the 26 July 2019 letter at [10] and the 9 August 2019 letter at [13]), and
(e) “make an informed assessment of each claim” (the 26 July 2019 letter at [12]).
45 CUB also complains that the Commissioner did not respond at all, or certainly not substantively, to CUB’s assertions that he had enough information to perform the only task that he was permitted to perform, namely, to decide whether to test or accept the LPP claims. Those assertions were made in correspondence by CUB (or its solicitors) of 20 September 2018, 16 August 2019, 1 December 2019 and in speaking notes that Mr Grieve deposed that he used at the conference call between CUB and the Commissioner’s representatives on 21 November 2019.
46 All these communications and the Commissioner’s response or lack of response to them demonstrate objectively, CUB argues, that the Commissioner was motivated by a substantial improper purpose. The clear manifestation of that substantial improper purpose is said to be evidenced by the contents of the draft notice that was sent to CUB on 13 November 2019 (Draft Notice). The Draft Notice contained a request for substantially more material than the final form of the Notice issued on 4 March 2020. The Draft Notice sought the following documents and information by its schedule:
Schedule
1. For every document responsive to the notice issued to ABI Australia Pty Ltd under section 353-10 of Schedule 1 to the [TAA] on 30 May 2018 that was not wholly produced due to claims for legal professional privilege, provide:
a. the title of the document;
b. a description of the nature of the document, for example, advice, a contract, an invoice, minutes of a meeting, or an email;
c. whether the document is an original or a copy;
d. the date of the document;
e. where the document is an email, the time the email was sent;
f. the number of pages of the document;
g. in relation to the author of the document:
i. the name of the person;
ii. the organisation the person worked for; and
iii. their position or role in the organisation;
h. where the document was signed, in relation to the person who signed the document:
i. the name of the person;
ii. the organisation the person worked for; and
iii. their position or role in the organisation;
i. the full names of the persons who sent the document;
j. in relation to each person to whom the document was communicated:
i. the name of each person;
ii. the organisation the person worked for; and
iii. their position or role in the organisation;
iv. all purposes for communicating the document to the person;
k. the dominant purpose of the communication; and
l. where the document is a copy of an original document:
i. all the purposes for which the copy was created; and
ii. the dominant purpose for which the copy was created.
2 For all documents authored, signed or sent by an in-house legal adviser, provide the following additional details:
a. in relation to the author of the document:
i. the name of the person;
ii. the organisation the person worked for; and
iii. their position or role in the organisation;
b. where the document was signed, in relation to the in-house legal adviser who signed the document:
i. the name of the person;
ii. the organisation the person worked for; and
iii. their position or role in the organisation;
c. how the person acting as the in-house legal adviser described himself or herself in the document;
d. all functions, positions, roles and responsibilities held by the in-house legal adviser at the time the in-house legal adviser authored, signed or sent the document;
e. the capacity in which the in-house legal adviser was acting at the time the document was authored, signed or sent;
f. the year and jurisdiction in which the in-house legal adviser was admitted to practice;
g. whether the in-house legal adviser held a practising certificate at the time the document was authored, signed or sent;
h. in relation to the person who is the direct supervisor of the in-house legal adviser who authored, signed or sent the document:
i. the name of the person; and
ii. their position or role in the organisation;
i. whether the remuneration of the in-house legal adviser who prepared the document was connected in any way to the performance of his or her business unit or to the organisation as a whole; and
j. where the employer of the in-house legal adviser who prepared the communication is a company, whether the in-house legal adviser owned and/or controlled shares in the company.
Ground 2 – consideration
47 Dealing with the last point first, importantly it is not the Draft Notice that is subject to challenge. The Draft Notice is substantially broader than the actual Notice under challenge however, in between the Draft Notice and the actual Notice was the conference call between the Commissioner and Mr Grieve with file notes produced evidencing each side’s record. Mr Grieve made clear that the Commissioner was not entitled to the information sought in the Draft Notice.
48 Taken as a whole, the history reveals the Commissioner pursuing a course of attempting to accumulate additional information in circumstances where he has expressed the view that the claims for privilege made by CUB were opaque. Even if the Commissioner was wrong about that view, such an error would not support a conclusion that he was seeking to determine the validity of the LPP claims.
49 The covering letter accompanying the Notice was entirely consistent with the Commissioner’s case when the Commissioner said in that letter that the Commissioner “also requires those additional particulars in order to make an informed decision as to whether an alternative dispute resolution process would be an appropriate method of resolving any disputed claims”. There is no suggestion that the information provided would or indeed could enable the Commissioner to actually adjudicate the LPP claims.
50 There are essentially two lines of argument advanced for CUB in support of ground 2.
51 The first is that the evidence, some of which was not expressly adverted to in the primary judge’s reasons, illustrates that the Commissioner was seeking to determine, in the sense of adjudicate, CUB’s LLP claims himself as evidenced by the use of terms such as “substantiate”, “support”, “evaluate the legitimacy”, “determine the appropriateness” and “make an informed assessment” where they appear in different communications from the Commissioner to CUB or its representatives. In addition, CUB claims that the primary judge overlooked some of the evidence of that nature or that his Honour should have reached a different conclusion in respect of that evidence.
52 The second general line of argument is that the Commissioner’s failure to accept assertions made for or by CUB that the Commissioner had enough information to decide whether or not to accept or to test the LPP claims, and the failure to accept CUB’s offer to explain to the Commissioner the process CUB undertook in making the LPP claims, illustrates that in truth the Commissioner was not interested in the narrower task, but in reality wanted to pursue the impermissible or improper purpose.
53 The complaint that the primary judge overlooked CUB’s argument by failing to advert to every single statement in the correspondence cannot be accepted. This is particularly difficult to accept in circumstances where his Honour did expressly and correctly accept that some of the earlier communications would support the argument now advanced for CUB, if those communications were not, in effect, displaced by the ultimate communication and purpose.
54 The key documents were the Notice, the cover letter accompanying the Notice and the s 13 reasons which were all given greater weight by the primary judge in ascertaining the Commissioner’s purpose than the earlier correspondence exchanged some months or years before issuing the Notice. This preference was not only open to the primary judge, but was the eminently sensible and preferable course. By the time the actual Notice was issued, the Commissioner had whittled down the information sought and as CUB repeatedly emphasises, had received the benefit of strenuous assertions from CUB that it was not open to the Commissioner to put himself in the shoes of a court by actually determining CUB’s LLP claims. Indeed, it would be somewhat surprising if an experienced litigant such as the Commissioner considered otherwise.
55 The primary judge was correct to find that the later documents, upon which no witness for the Commissioner was cross-examined, were consistent with the Commissioner’s purpose being to obtain information upon which he could decide whether or not to challenge the claims for LPP by CUB. The particulars of information sought in the Notice, namely, the title of each document or, in the case of an email, the subject line of the email, the name of the author and the name of each person to whom the document was communicated, could not possibly allow the Commissioner to determine the actual validity of CUB’s LPP claims. The primary judge said that while these details would assist the Commissioner to form a view as to whether to accept or challenge the LPP claims, they would not enable him to determine the claims. Access to the documents themselves would likely be required in order to do that.
56 His Honour was also correct to find that the cover letter accompanying the Notice, read as a whole and in context, demonstrated that the Commissioner’s purpose was not to determine for himself the validity of the LPP claims. The Commissioner expressly stated that he required the particulars “in order to make an informed decision as to whether an alternative dispute resolution process would be an appropriate method of resolving any disputed claims”. Indeed, this purpose had also been adverted to by CUB’s representative.
57 Further, the primary judge was correct to conclude that the contents of [40] of the s 13 reasons could not be accepted in part only as CUB contended, because Mr Ferguson gave evidence that [40] of the s 13 reason accurately recorded his reasons for deciding to issue the Notice and he was not cross-examined on that material. The primary judge said (at [88] and [96]-[97]):
88 Paragraph 40.5(c) of the [s 13 reasons] is consistent with the Commissioner seeking the information in order to determine whether to accept or challenge the privilege claims. That paragraph was in the following terms:
40.5 The information sought in the 4 March 2020 [Notice] will assist the Commissioner to determine:
…
(c) whether the claim that each document is privileged is well-founded, or whether the Commissioner should continue to press for production of all or some of the documents sought pursuant to the 30 May 2018 notice so as to assist the Commissioner in the proper discharge of the Commissioner’s duty referred to in paragraph 40.4 above.
The statement that the information would assist the Commissioner to determine “whether [he] should continue to press for production of all or some of the documents” is consistent with the Commissioner’s purpose being to decide whether to accept or challenge the privilege claims.
…
96 Insofar as CUB submits that the documents were no longer needed by the Commissioner to discharge his statutory functions, I do not accept that submission. The facts set out in the first affidavit of Mr Ferguson, together with paragraph 40.4 of the [s 13 reasons], support a finding, which I make, that the Commissioner considered that the documents, which were responsive to the May 2018 Notice, remained relevant to the statutory functions he was still carrying on. The material facts are set out in Mr Ferguson’s first affidavit and are summarised in the Background Facts section of these reasons. This is not a case where the facts are merely set out in a statement of reasons. There is affidavit evidence that directly establishes the facts. Further, and significantly, Mr Ferguson gave evidence in paragraph 42 of his first affidavit that paragraph 40 of the [s 13 reasons] accurately recorded his reasons for deciding to issue the March 2020 Notice, and he was not cross-examined. This provides a strong basis to accept the correctness of the statements in paragraph 40.4 of the [s 13 reasons].
97 As noted above, in oral submissions, senior counsel for CUB submitted that no weight should be given to paragraphs 40.4 and 40.6 of the [s 13 reasons]. I do not accept that submission. First, a statement of reasons is evidence of the subjective views held by, and the findings made by, the decision-maker: see Minister for Immigration and Ethnic Affairs v Taveli (1990) 23 FCR 162 (Taveli) at 180 per French J. The statement is evidence that is to be weighed and assessed like any other evidence: Taveli at 180. Secondly, the factual material set out in Mr Ferguson’s first affidavit supports the proposition that the documents remained relevant to the statutory functions still being carried out by the Commissioner. Thirdly, as noted above, Mr Ferguson gave evidence in his first affidavit that paragraph 40 of the [s 13 reasons] accurately recorded his reasons, and he was not cross-examined.
(Emphasis added.)
58 This analysis (at [88] and [96]-[97]) is, with respect, correct.
59 As to the lack of cross examination, CUB also relies on an observation by Buchanan J in Phosphate Resources Ltd v Minister for the Environment, Heritage & the Arts (No 2) [2008] FCA 1521; (2008) 162 LGERA 154 in which his Honour found that a statement of reasons was not a true statement of the Minister’s reasons because it had been prepared by a departmental staff member and then adopted by the Minister as his own six weeks or so after the decision was made. The Minister whose statement of reasons it purported to be did not verify it. The Minister did not affirm or swear an affidavit. It was mainly for that reason that the statement was given no weight by Buchanan J regardless of a lack of cross-examination. A similar finding was made in Minister for Aboriginal and Torres Strait Islander Affairs v Western Australia [1996] FCA 395; (1996) 67 FCR 40 (at 62-63). It is quite a different circumstance in this case where the actual decision-maker has affirmed, by affidavit, his own purpose. CUB contends that the s 13 reasons were in part self-serving, but if this means that the s 13 reasons were inaccurate or incomplete, it is a very difficult submission to make in the absence of any cross-examination of Mr Ferguson. There is no reason why the s 13 reasons in those circumstances should be accorded limited weight when the Commissioner has verified them on affidavit and a forensic choice was made not to cross-examine the decision-maker. The forensic choice was legitimate, but having been made, the submission that the s 13 reasons were in part false, is not open as a matter of fairness.
60 In much of the earlier correspondence on which CUB places reliance, the Commissioner had used the word “determine”. There is no reason to think that “determine”, where used by the Commissioner, meant to make an actual determination of the claims for LPP. An alternative usage entirely consistent with the evidence upon which the primary judge based his conclusions was that it was to determine whether or not to challenge the claims for LPP. This is particularly so in the later correspondence on which the final conclusion as to the purpose of the Commissioner was primarily reached.
61 Nothing in the Commissioner’s repeated complaint of insufficient information reveals an improper purpose. It is equally consistent with the Commissioner considering he is unable to decide whether to accept or to challenge the LPP claims.
62 The entire process of the exchanges between CUB and the Commissioner revealed commendable attempts by which the parties might have been able to resolve the question of privilege without a formal challenge in court. That the Notice was ultimately issued in the form it was is consistent only with fact that after considerable efforts, the parties could not agree as to the quantity of information that should be supplied by CUB. The actual content of the Notice ultimately issued, in terms of what was sought from CUB, was not consistent with the asserted purpose of the Commissioner himself actually determining (in the sense of adjudicating) the LPP claims.
63 Ground 2 cannot be made out.
64 The appeal must be dismissed with costs.
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Middleton, McKerracher and Griffiths. |
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