FEDERAL COURT OF AUSTRALIA

Caratti v The Commissioner of Taxation [1999] FCA 1296

TAXATION AND REVENUE – investigation into financial affairs by Tax Office – compulsion to give evidence under s 264 notices – whether s 264 notices issued for improper purposes – whether interference with possible criminal proceedings – disclosure of information – disclosure by officers of Commissioner to officers of Director of Public Prosecutions – whether breach of s 16 of Income Tax Assessment Act – whether breach of ss 3C, 8XA and 8XB of Taxation Administration Act – whether breach of Privacy Act and Information Privacy Principles - whether use of information in criminal proceedings improper – whether any tenable cause of action disclosed – inappropriate forum for raising matters in relation to unfair use of material in criminal proceedings – applications dismissed.

Crimes Act 1914 (Cth) s 86A

Judiciary Act 1903 (Cth)

Income Tax Assessment Act 1936 ss 16, 263, 264

Taxation Administration Act 1953 ss 3C, 8XA, 8XB

Privacy Act 1988 ss  6,  9,  10, 12, 13, 16

Federal Court Rules O 20 r 2

Victoria v The Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25, cited

Hammond v The Commonwealth (1982) 152 CLR 188, cited

Commissioner of Taxation v De Vonk  (1995) 61 FCR 564, discussed

Saunders v Federal Commissioner of Taxation 88 ATC 4349, followed

Jago v District Court (NSW) (1989) 168 CLR 23, followed

Williams v Spautz (1992) 174 CLR 509, followed

JOHN MICHAEL CARATTI v THE COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA, THE DIRECTOR OF PUBLIC PROSECUTIONS OF THE COMMONWEALTH OF AUSTRALIA and DIANNE YEATS

W 79 of 1999

FRENCH J

15 SEPTEMBER 1999

PERTH

THE COURT ORDERS THAT:

1.         The application is dismissed.

2.         The Applicants are to pay the Respondents’ costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT ON MOTIONS TO STRIKE OUT

STATEMENT OF CLAIM AND FOR INTERLOCUTORY RELIEF

Introduction

1                     These proceedings are brought by John Caratti and a number of associated companies alleging the misuse by the Commissioner of Taxation (“the Commissioner”) and the Commonwealth Director of Public Prosecutions (“DPP”), of information gathered under the investigative powers conferred on the Commissioner by the Income Tax Assessment Act 1936 (“ITAA”).  The misuse of the information and associated breaches of secrecy provisions of the ITAA and other statutes are said to have occurred in connection with criminal proceedings against Mr Caratti and others which were concluded earlier this year. 

2                     Mr Caratti was convicted of conspiracy to defraud the Commonwealth in relation to group tax instalment deductions.  Similar judicial review proceedings brought while his trial was pending have been dismissed by consent.  He has lodged an appeal against his conviction and has now instituted fresh proceedings making similar allegations against the Commissioner and the DPP and seeking similar relief.  Part of the relief sought is based upon the possibility that his appeal will succeed and he may be granted a retrial.  The respondents have moved to strike out the application, while Mr Caratti and the other applicants claim interlocutory relief.

The Criminal Proceedings

3                     On 11 November 1998 an indictment was signed on behalf of the Commonwealth Director of Public Prosecutions and presented in the Supreme Court of Western Australia.  The indictment alleged that between 30 June 1988 and 1 April 1994 at Perth and elsewhere in the State of Western Australia, John Michael Caratti, his brother, Allen Bruce Caratti and his mother, Maddeleine Caratti, conspired with his late father, Sergio Caratti, and each other to defraud the Commonwealth, contrary to s 86A of the Crimes Act 1914 (Cth). 

4                     The particulars of the overt acts relied upon to support the conspiracy so far as they related to John Michael Caratti included the following:

“1.       Between 30 June 1988 and 1 April 1994 the accused John Caratti participated with Sergio Caratti, Allen Caratti and Maddeleine Caratti in the implementation of an unlawful agreement to dishonestly deprive the Commonwealth of group tax instalment deductions to which it was entitled and which should have been paid to it.  This object was continued and given effect to as and when the opportunity arose, in respect of entities effectively controlled by the three accused and Sergio Caratti or any of them, from time to time.

2.         The unlawful agreement was implemented by the three accused and Sergio Caratti through the medium of companies and other entities effectively controlled by one or more of them from time to time.

3.         The means by which the three accused and Sergio Caratti dishonestly deprived the Commonwealth of group tax instalment deductions to which it was entitled were:

            (a)        not deducting (and so not remitting to the Commonwealth) tax instalments from payments of salary or wages to employees;

            (b)        deducting and remitting tax instalments from payments of salary or wages to employees, but doing so in amounts less than those to which the Commonwealth was properly entitled;

            (c)        deducting tax instalments from payments of salary or wages to employees but not remitting the amounts so deducted (or all of them) to the Commonwealth;

            (d)        not making group tax payments to the Commonwealth as required by Notices of Demand issued by the Commonwealth Commissioner of Taxation (“the Commissioner”) from time to time.”

Further particulars of the overt acts of John Caratti relating to specific companies and partnerships were also set out.  It is not necessary to refer to them further for the purposes of these reasons.

5                     The three accused stood trial before the Supreme Court of Western Australia between 1 February 1999 and 4 June 1999.  John Caratti was convicted on the indictment on 4 June 1999, while the other two accused were acquitted.  Mr Caratti has instituted an appeal to the Court of Criminal Appeal against his convictions.  

Judicial Review Proceedings Prior to the Criminal Trial

6                     On 12 October 1998, Mr Caratti and his co-accused and a number of other parties being related companies, which may broadly be described as the Caratti Group of companies,  instituted proceedings under the Judiciary Act 1903 (Cth) against the Commissioner, the DPP and Dianne Yeats, an officer of the Australian Taxation Office.  In those proceedings the applicants had claimed a permanent injunction restraining the Commissioner, the DPP  and Ms Yeats from conducting or continuing with an audit of the income tax and/or PAYE tax affairs of the applicants until the completion of their criminal trial on the indictment of conspiracy to defraud the Commonwealth.  Declaratory relief relating to alleged breaches of the provisions of s 16 of the Income Tax Assessment Act 1936 (“ITAA”), the Privacy Act 1988 and the Taxation Administration Act 1953 (“TAA”) and associated injunctive relief were also sought.  In the event, a consent order was made on 5 November 1998 whereby a claim for interlocutory relief in those proceedings was dismissed, most of the application and the entirety of the statement of claim were struck out and the application generally was adjourned to a directions hearing to be listed on a date after the conclusion of the trial. The application was dismissed as against the DPP.  The trial was then pending and scheduled to commence on 29 January 1999.  Undertakings given by the Commissioner and the DPP to the applicants were noted.  By those undertakings the Commissioner agreed to extend the time for compliance with outstanding notices issued under s 264 of the ITAA until twenty eight days after a verdict had been returned in the criminal trial.  He also undertook not to issue further s 264 notices to the applicants or to take any further action to progress the audit of the income and withholding taxation affairs of the applicants until the verdict had been returned in the criminal trial. 

7                     The DPP undertook that on the trial of the Carattis, the prosecution would not make reference to or lead in evidence any document to which officers of the DPP were granted access at the office of the National Australia Bank Ltd on 28 August 1998 (being “the Material” in circumstances where such document was taken from and/or copied from the material).

8                     Following the conclusion of the criminal trial, the applicants came back before the Court seeking to amend their application.  Orders were made that the application in so far as it was brought by Allen and Maddeleine Caratti, was dismissed.  John Caratti was given liberty to file amendments and the respondents were given liberty to move to strike out the application.  However on 6 August 1999 orders were made dismissing the application against the remaining respondent, namely the Commissioner of Taxation, without prejudice to the right of John Caratti to file a fresh application.  It was also noted that the undertaking of the Commissioner noted in the order of 5 November 1998, was discharged twenty eight days after the return of the verdict in the Supreme Court trial.

The New Judicial Review Proceedings

9                     On 9 August 1999, a fresh application was filed naming as applicants, John Caratti and the Caratti Group companies listed in a schedule to the application.  The respondents are the Commissioner of Taxation and the DPP.  The application claims a permanent injunction restraining the Commissioner and the DPP from conducting or continuing with the audit of the income tax and/or PAYE tax affairs of John Caratti or his co-accused or aiding in the same until the completion of the appeal and any retrial of John Caratti on the indictment of conspiracy to defraud the Commonwealth and other declaratory and injunctive relief.

The Statement of Claim

10                  The statement of claim pleads the indictment, trial and conviction of John Caratti and the acquittal of his co-accused.  It also pleads the institution of his appeal against conviction.    Reference is made to various officers of the respondents, being Harold Seymour, an officer of the DPP who had conduct of the criminal trial as junior counsel, Dianne Yeats, who was an employee of the Commissioner and an officer within the meaning of s 3C of the TAA and Shelia Rajan, who was until October 1998, a senior officer of the Commissioner and an officer within the meaning of s 3C of the TAA.

11                  Reference is made to six separate civil actions commenced in the Supreme Court of Western Australia against six of the named applicants for recovery of sums alleged to be owing by them arising from the same facts as the conspiracy charge.  It is said that pursuant to statutory authority the Commissioner, in September 1996, commenced an audit of Mr Caratti and his co-accused in relation to their compliance with statutory obligations under the ITAA for the period 1977 to 1997 (par 8).  Paragraphs 9 to 26E of the statement of claim allege “Breaches of Secrecy and Privacy Laws by the Prosecution” and are grouped under that heading.  So it is said that on 20 August 1998 “in the course of her duties” in the conduct of the audit, Ms Yeats, in her capacity as agent of the Commissioner, attended at the office of the National Australia Bank at 50 St. George’s Terrace Perth and was there granted access to and examined information in the form of documents private to the applicants contained in two archive boxes and relating to dealings between some of the applicants and other persons. (par 10)  The knowledge of the existence of the documents contained in the boxes and the knowledge of the contents of those documents was obtained for the purposes of the TAA within the meaning of s 3C(2).  It was “information” within the meaning of s 8XA of that Act.  It was also taxation information within the meaning of s 8XB of the Act.  In relation to John Caratti, it is said to have been “personal information” within the meaning of s 6 of the Privacy Act.  The Commissioner is alleged, between 20 August 1998 and 27 August 1998, to have communicated this information to the DPP which, through its officers Seymour and one Nicki Ward, attended the National Australia Bank and obtained access to and examined the documents contained in the boxes.  Communication by Yeats of the information about the existence of the documents and their contents is pleaded as a breach by the Commissioner of s 16(2) of the ITAA, s 3C of the TAA and a breach of Information Privacy Principles 4, 9, 10(1), 10(2), 11(1) and 11(2) contained in the Privacy Act.  Moreover, it is said to be an interference by the Commissioner with the privacy of Caratti and his co-accused within the meaning of s 13 of the Privacy Act and a breach of s 16 of the Privacy Act.  The information having been communicated to the DPP, the DPP became a Collector of Information within the meaning of s 9 of the Privacy Act, a Record Keeper of the Information within the meaning of s 10, in possession of the information within the meaning of s 12 and subject to the Information Privacy Principles.

12                  Inspection of the documents by Seymour and Ward for the DPP is alleged to have breached Information Privacy Principles, and ss 8XA and 8XB of the TAA, and to have constitutedan interference by the DPP with the privacy of Caratti and his co-accused within the meaning of s 13 of the Privacy Act.  It was also said to be a breach by the DPP of s 16 of the Privacy Act with respect to the Carattis.

13                  In the course of the audit knowledge of some seven factual matters, of and concerning the property and business affairs of the Carattis and the corporate applicants, allegedly came into the possession of the Commissioner and Rajan which was personal information (par 26A).  This personal information was to be used for the enforcement of the ITAA, that being a law within the meaning of Information Privacy Principle 10(2), a law imposing a pecuniary penalty and for the protection of public revenue.

14                  The statement of claim then, in paragraphs 27 through to 48, asserts interference by the Commissioner and the DPP with the criminal trial.  It is pleaded that a relevant issue at the criminal trial was whether certain persons were servants of the applicants or their independent contractors.  At all material times the Commissioner had, through his officers, Ian Sutherland and Rajan, closely assisted the DPP in the task of interviewing witnesses and preparing statements and in the task of collecting documents and the task of presenting the prosecution case at trial.  Rajan, is said, in the course of her employment by the Commissioner, to have had unlimited access to the information, documents and records of and concerning Caratti and the other applicants and the co-accused and their business and taxation affairs collected in the course of the Commissioner’s administration of the ITAA.  She is alleged to have acquired a detailed and comprehensive knowledge of the business affairs of the applicants.  Following the termination of her employment with the Commissioner and until the conclusion of the criminal trial, she was employed by the DPP as a private consultant (par 28C).  In the course of her duties Rajan allegedly assisted the DPP by using the knowledge which she had from her work with the Commissioner.  In the course of what is called the “Close Assistance” of the DPP by the Commissioner, it is pleaded that the Commissioner, through Sutherland and Rajan, disclosed personal information about the accused to the prosecution.  This disclosure allegedly constituted a breach by the Commissioner and Rajan of secrecy provisions of the ITAA, the TAA, Information Privacy Principles and the Privacy Act.  The DPP is said to have obtained this information in breach of ss 8XA and 8XB of the TAA. 

15                  In the course of the criminal trial John Caratti gave evidence in his defence.  He was cross-examined by counsel briefed by the DPP as to his credit.  Counsel engaged by the DPP is said to have made forensic use of the personal information disclosed by the Commissioner by putting the seven factual matters pleaded in par 26A to John Caratti.  The forensic use of this information is said itself to have constituted a breach of Information Privacy Principles, the TAA and an interference by the DPP with the privacy of the accused within the meaning of s 13 of the Privacy Act and a breach of s 16 of that Act.

16                  During the course of the audit it is said the Commissioner has made requisitions of and concerning Caratti and the associated companies requiring the production of documents and the answering of questions of and concerning their business activities over the audit period which were relevant to issues arising in the criminal trial.  These requisitions remain unanswered.  Notices have been issued under s 264 requiring the three Carattis to attend the office of the Commissioner for examination and to furnish documents and information of the classes defined in the notices.  Section 264 notices have also issued requiring them to attend for examination and to produce documents concerning the persons whose status as servants or independent contractors was in issue in the trial. It is said that the requirement by the Commissioner for compliance with the requisitions and the s 264 notices during the course of the audit, if allowed to proceed, will reverse the onus of proof with respect to factual issues in any retrial, compel Caratti to give evidence that may be used in any retrial before any retrial has commenced and reverse the onus of proof in any retrial.  It is said also that it would confer an unfair advantage on the prosecution by allowing them prior knowledge of matters of fact and documents that might otherwise be reserved to the defence case.  By reason of their communication and disclosure, the Commissioner and Yeats are said to have interfered in the administration of justice with respect to the criminal trial.  The inspection of the documents and the forensic use of information, it is claimed, constituted an interference by the DPP with the administration of justice.  The breaches of secrecy and privacy laws by the Commissioner and the DPP are also claimed to have constituted interference in the administration of justice with respect to the criminal trial or a real risk to the administration of justice with respect to it and were abuses of process by the Commissioner.  Similar assertions are made with respect to the requisitions administered by the Commissioner and the s 264 notices and the close assistance of the DPP by the Commissioner.  Various forms of injunctive and declaratory relief are sought based on these allegations.

17                  On 19 August 1999, the Commissioner and the DPP both filed motions seeking to strike out the application under O 20 r 2 of the Federal Court Rules.  John Caratti and the other applicants pursued a claim for interlocutory relief.   

The Strike Out Motions

18                  The Commissioner in support of his strike out motion, identified as the issue for decision whether his exercise of statutory powers to recommence and progress the taxation audit represents a real risk of interference in the administration of justice, amounting to an improper use of statutory power.  While he does not admit any of the allegations in the statement of claim, he submits that even if the access and disclosures there alleged could be made out, there is no arguable case for relief. 

19                  The point of departure which is uncontroversial is that the coercive investigative powers conferred by ss 263 and  264 must be exercised by the Commissioner for the purposes of the Act.  This is a general constraint upon the exercise of any power conferred by statute.  The Commissioner concedes that the exercise of his statutory powers for the purpose of collecting evidence for use in a criminal trial would not be for the purposes of the Act, would be an interference in the administration of justice and would constitute a use of his power for an improper purpose.

20                  As is pointed out, however, in the Commissioner’s submission, there is no allegation in the statement of claim that the taxation audits were commenced or the s 264 notices issued for an improper purpose.  The Commissioner may conduct a taxation audit and may issue s 264 notices for the purposes of the Act notwithstanding the existence of pending criminal and civil proceedings on a subject matter on which the audit may touch provided there is no actual interference in the administration of justice.  In Victoria v The Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25, the High Court was concerned with whether the establishment of the Royal Commission into the BLF constituted an unlawful interference with proceedings commenced in the Federal Court for cancellation of the registration of the Union under the Conciliation and Arbitration Act 1904.  Gibbs CJ observed at 56:

“There is a contempt of court of the kind relevant to the present case only when then is an actual interference with the administration of justice, or “a real risk, as opposed to a remote possibility” that justice will be interfered with: cf Attorney-General v Times Newspapers Ltd [1974] AC at p 299.  The essence of this kind of contempt is a “real and definite tendency to prejudice or embarrass pending proceedings”: John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351, at p 372.”

See also per Mason J at 95.  Again in the context of a royal commission whose terms of reference covered issues the subject of pending proceedings in the County Court of Victoria, Gibbs CJ said:

“It would very seriously impede the conduct of executive inquiries into matters of public importance if no report could be made on a matter which touched and concerned a pending criminal charge.  If a report could not be made in such a case, it is difficult to see any reason why the position would be different if the charge was merely contemplated and not pending.  However, as I have said, the theoretical possibility that the trial of an accused person may be prejudiced cannot justify the courts in stultifying proper inquiries into matters of public interest simply because they relate in some way to the subject of a charge.” – Hammond v The Commonwealth (1982) 152 CLR 188 at 199 (Mason and Murphy JJ agreeing)

Questions of improper purpose apart, it is also conceded by the Commissioner that ss 264 of the ITAA and ss 8C and 8D of the TAA do not authorise the compulsory interrogation of persons in circumstances where to do so might constitute an interference with the administration of civil or criminal justice.  The Full Court of the Federal Court has held in Commissioner of Taxation v De Vonk  (1995) 61 FCR 564, that s 264 of the ITAA abrogates the privilege against self incrimination.  That is not to say, however, that it authorises the compulsory interrogation of persons in circumstances where to do so might constitute an interference with the administration of civil or criminal justice.  In that case Hill and Lindgren JJ in their joint judgment, at 589, were of the view that circumstances might arise where questions put under the s 264 notice there in issue might constitute a real, or substantial risk of interference with the course of justice.  However their Honours went on to say:

“The abstract nature of this conclusion inevitably raises difficulty in the framing of appropriate relief.  If a declaration had to be formulated to give effect to the foregoing reasons, it could only be one to the general effect that the conduct of an interrogation prior to the hearing of the criminal charges and covering the same factual circumstances as those covered by the criminal charges could constitute a contempt of the court before which such charges are to be heard.  A declaration in such terms being hypothetical and “advisory” and relating to a procedural question, should not be made.”

21                  The present position is that John Caratti has been convicted of conspiracy to defraud the Commonwealth.  He has instituted an appeal.  Whether he will succeed on that appeal is a matter of speculation.  The possibility of a retrial is open.  The s 264 notices previously issued by the Commissioner are to be withdrawn, as appears from the affidavit of Julie Coates sworn on 3 September 1999.  Further notices will be issued if considered necessary.  The challenge made by John Caratti and the Caratti companies to the issue and pursuit of the s 264 notices and associated requisitions relies, inter alia, on the proposition that he may be compelled to provide answers to questions relevant to issues of fact in the trial.  The requirement for compliance, it is said, is likely to reverse the onus of proof, compel the giving of evidence that may be used in any retrial and confer an unfair advantage on the prosecution.  This is, however, speculative.  The s 264 notices are to be withdrawn.  There is no suggestion that they were issued for an improper purpose.  The mere fact that new s 264 notices may be issued which could touch upon matters that might be relevant in a subsequent criminal proceeding, does not of itself involve any purpose on the part of the Commissioner or any effect of his action which constitutes an interference with the trial process.  In respect of the continuation of the audit process generally, the proceedings are speculative.  There is no cause of action to support the claim made by the applicants for a permanent injunction restraining the Commissioner from conducting or continuing with the audit of the income tax and/or PAYE tax affairs of Mr Caratti or his former co-accused or the other applicants.  Nor is there any basis for an order setting aside each of the s 264 notices or a permanent injunction restraining the Commissioner from taking any steps to issue further s 264 notices until the completion of any retrial.  In so far as the application and the statement of claim seek relief of the character I have just referred to, there is no tenable cause of action.

22                  Mr Caratti also claims injunctive orders against the DPP in relation to the continuation of the tax audit and the issue of s 264 notices (pars 50 and 52 of the statement of claim).  Such relief is misconceived as the DPP has no relevant statutory power in relation to those matters.

23                  The remaining relief claimed relates to alleged breaches by the Commissioner and the DPP of s 16 of the ITAA, the Information Privacy Principles of the Privacy Act and ss 8XA and 8XB of the TAA.  The Commissioner maintains that on the face of the pleadings, no breaches are disclosed.  Section 16(2) of the ITAA provides:

“Subject to this section, an officer shall not either directly or indirectly, except in the performance of any duty as an officer, and either while he is, or after he ceases to be an officer, make a record of, or divulge or communicate to any person any information respecting the affairs of another person acquired by the officer as mentioned in the definition of “officer” in subsection (1).”

The term “officer” is defined in subs 16(1) as follows:

““officer”means a person who is or has been appointed or employed by the Commonwealth or by a State, and who by reason of that appointment or employment, or in the course of that employment, may acquire or has acquired information respecting the affairs of any other person, disclosed or obtained under the provisions of this Act or of any previous law of the Commonwealth relating to income tax;”

Section 16(1A) includes in the classes of persons employed by the Commonwealth, a person who “although not appointed or employed by the Commonwealth, performs services for the Commonwealth”. 

24                  The Commissioner points out that the statement of claim does not allege that any disclosure made by him and his officers and Ms Rajan was made outside the performance of their duties as officers.  Notwithstanding that Ms Rajan had ceased employment with the Australian Taxation Office on 30 September 1998, that cessation of itself would not make a subsequent disclosure a breach of s 16(2) if done in the performance of an ongoing duty as an officer.  And it is not in dispute that from 7 December 1998 she was hired as a consultant to the DPP for the purposes of the trial.  In that capacity she was providing services to the Commonwealth and was within the definition of an “officer” under s 16.

25                  The communication of information by the Commissioner, through his officer Yeats, and subsequently Rajan, was said to constitute a breach of s 16(2).  The communication if made for the purpose of assisting the DPP in the preparation for or conduct of a tax related prosecution is not outside the duty of the officer concerned.  In order for the pleading of the breaches of s 16(2) in this case to be sustainable, it would have to be established that communication of information covered by the section to the DPP is, without more, not in the performance by the Commissioner’s officers of any of their duties.  Absent any improper purpose in the information gathering process that is not, in my opinion, a tenable proposition. Although the DPP is not specified as an authorised recipient of information under s 16(4), except via a Royal Commission, Northrop J has held the DPP may be instructed in connection with recovery proceedings – Saunders v Federal Commissioner of Taxation 88 ATC 4349.   In my opinion there is no basis for excluding from the scope of the duty of an officer of the Commissioner the provision of information to the DPP relevant to possible court proceedings for offences related to defrauding of the revenue.  It is a separate issue whether, in the circumstances of a particular case, the collection of such information by the Commissioner would constitute an interference with the criminal justice process and whether the use of such information by the DPP would be unfair or oppressive or furthering an improper purpose.  But this application, so far as it is based upon alleged communications between the officers of the Commissioner and the DPP in breach of s 16, is not tenable on the facts pleaded.  The same comment applies to Ms Rajan in her capacity as a consultant to the DPP.

26                  Reference should also be made in this connection to s 3E of the TAA which authorises the Commissioner “Notwithstanding any taxation secrecy provision” to disclose information acquired by the Commissioner under the provisions of a tax law to an authorised law enforcement agency officer if the Commissioner is satisfied that the information is relevant to establishing whether a serious offence has been, or is being committed.  So far as the application alleges a breach of s 3C of the TAA, it faces the same difficulties as in relation to s 16(2) which saves the disclosure of information “in the performance of a person’s duties as an officer”. 

27                  And in so far as ss 8XA and 8XB of the TAA are concerned, I accept the Commissioner’s submissions that they cannot apply to the Commissioner in this case as access was not taken by the Commissioner and his officers within the terms of s 8XA, that is for the purpose of obtaining information about another person’s affairs contained in records in the possession of the Commissioner.  If such access was taken, it was in the course of exercising powers or performing functions under and in relation to a taxation law.  I accept the Commissioner’s submissions that on the face of the pleading any disclosures made by the Commissioner, his officers or Ms Rajan to the DPP of information obtained in the course of the taxation audits or otherwise under the Act, the TAA or the Fringe Benefit Tax Assessment Act 1986, which contains similar provisions, were permitted by the statutory provisions and were not made in contravention of them.  In so far as the Privacy Act is concerned, Principles 10 and 11, except from the limitations on the use and disclosure of personal information, use and disclosure required or authorised by or under law.  They also except the use of information reasonably necessary for enforcement of the criminal law or of a law imposing a pecuniary penalty, or for the protection of the public revenue (Principles 10(1) (c) and (d) and 11(1)(d) and (e)).

28                  In addition to the issues of unlawful disclosure of information to which I have already referred, the statement of claim also asserted the misuse of information at the criminal trial (par 26A).  But if information put to Mr Caratti by way of cross examination was thought to have been improperly used in that context, the appropriate time for taking that point was at the trial and in the forum of the Supreme Court.  No relevant objections were taken.

29                  This consideration is also relevant to the case against the DPP.  As the DPP submits, questions regarding the admissibility of evidence and whether by reason of allegedly unlawful access to information by the prosecution the trial process was unfair, are matters properly to be determined by the Supreme Court of Western Australia.  If the claims had merit they ought to have been raised at the original trial.  In any event the appropriate forum now would be the Court of Criminal Appeal or the trial judge on any retrial.  The trial judge would have a discretion to exclude evidence unlawfully or unfairly obtained.  The judge would also have inherent jurisdiction to grant a permanent stay if it were established that the retrial would be irremediably unfair and constitute an abuse of process – Jago v District Court (NSW) (1989) 168 CLR 23; Williams v Spautz (1992) 174 CLR 509.  As is submitted for the DPP, there are adequate safeguards available to Mr Caratti in the Supreme Court of Western Australia to protect him from the potential injustices which he asserts.  In my opinion it is unnecessary to go beyond these considerations in dealing with the claim so far as it relates to the DPP.  Other elements of disclosure to the DPP and alleged breaches by the DPP of various secrecy provisions of the ITAA, the TAA and the Privacy Act are covered by the conclusions already reached in relation to the Commissioner.  It is to be recalled that the previous proceedings raising identical allegations against the DPP were dismissed by consent on 5 November 1998.  There was no reservation of a right to lodge a fresh application on identical bases in that case.  The application as a whole is unsustainable on the ground that no reasonable basis for it is disclosed in so far as it seeks to raise matters in this Court which are properly raised in the context of any criminal proceedings that might ensue in the Supreme Court of Western Australia, it is frivolous and vexatious.  The application as a whole should be dismissed.

Associate:

Dated:              15 September 1999