FEDERAL COURT OF AUSTRALIA

Clarke v Deputy Commissioner of Taxation [2001] FCA 780

Taxation Administration Act 1953

ROSS DAVID CLARKE and ORS v DEPUTY COMMISSONER OF TAXATION

Q 26 OF 2001

HEEREY J

14 JUNE 2001

BRISBANE

THE COURT ORDERS THAT:

1.         The motion by notice dated 11 April 2001 is dismissed.

2.         The applicants pay the respondent’s costs of the motion.

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

REASONS FOR JUDGMENT

1                     It is highly desirable that parties co-operate in an informal way in the process of litigation in this Court.  If this is not done, the case management system becomes impossible. 

2                     This dispute relates to discovery in an Administrative Decisions (Judicial Review) Act 1977 (Cth) application concerning a decision of the respondent not to give a ruling sought under section of the Taxation Administration Act 1953 (Cth).  In so doing the Commissioner purportedly exercised the power of not dealing with the application given by s 14ZA and ?? J of that Act.  The applicant on 13 March 2001 filed and served a notice for discovery requiring discovery of the following classes of documents, and my reason will set out the seven categories contained in the notice. 

“1        the decision-maker in fact considered in making his decision not to comply with the ruling request;

 2         the decision-maker had before him before or at the time of making his decision not to comply with the ruling request;

 3         set out any policy of the Respondent relating to any embargo placed on issuing private rulings of the nature sought;

 4         relate to the formulation of any aforementioned policy;

 5         record any recommendation or decision as to whether the ruling request should be complied with;

 6         contain internal legal recommendations as to whether the ruling request should be complied with;

 7         contain legal advice as to whether the ruling request should be complied with.”

3                     What has happened is that informal discovery has been given of categories 1, 2, 5, 6 and 7.  When I say informal discovery, I refer to the process described by Mr Stephen Catt in his affidavit of 12 June 2001 and in particular pars 9, 10, 11 and 12 thereof.  This shows that there was an appropriate search for relevant documents and also that those documents have been properly identified.  So I am not persuaded that there is any practical difference, and certainly no practical difference to the disadvantage of the applicant, from that which would obtain if the procedure in the rules were followed to the letter.

4                     The approach that the respondent has taken is, in my opinion, to be encouraged and the respondent should not be harassed by requests for further unnecessary formalities. 

5                     The outstanding matters are the categories 3 and 4.  I am persuaded that there is no proper basis for seeking discovery, particularly in the light of the more restricted regime of discovery now introduced by O 15 r 2(3). 

6                     The applicant says that the “embargo” against giving rulings, although purportedly lifted, has been informally continued.  The applicant is already in possession of a large amount of documents which will enable it to advance such an argument at the subsequent hearing of this matter if so advised.  But I do not think there is any proper basis on which discovery should be ordered now.  So the applicant's notice of motion dated 11 April 2001 will be dismissed.

7                     As to costs I am satisfied that the applicant was adequately appraised of the stand the respondent has taken and in any event, to the extent that material was received fairly recently, the applicant nevertheless chose to proceed.  So one might infer that the applicant would still have proceeded even if the material from the respondent had been provided earlier.  So I think costs should follow the event.  The respondent should have the costs of the motion.

Associate:

Dated:              22 June 2001