FEDERAL COURT OF AUSTRALIA

Binetter v Deputy Commissioner of Taxation [2012] FCA 377

THE COURT ORDERS THAT:

1.    The respondent extend the times for compliance with the notice to the applicant dated 24 February 2012, subject to further order, from 23 March 2012 to up to and including the fourteenth day after the making of final orders in these proceedings.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1    This interlocutory application seeks interim relief in respect of a notice dated 24 February 2012 (the notice) issued by the respondent Deputy Commissioner of Taxation, under s 264 of the Income Tax Assessment Act 1936 (Cth) (the 1936 Act) requiring the applicant, Margaret Binetter (the addressee), to provide detailed information by 23 March 2012. The notice was issued against a background that the addressee had objected to a number of assessments issued against her by the Commissioner for years of income that appear to date back to around 2001 and following. The matter has come on urgently because of the imminent expiry of the notice and the time that the Commissioner has taken to provide a statement of reasons for its issue under s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the AD(JR) Act).

The issues

2    The addressee objected in her amended originating application to the notice’s requirement to provide the information sought on a number of bases which can be shortly stated. First, she contended that the covering letter to the notice asserted that she could not refuse to comply with the terms of the notice upon the basis of the privilege against self-incrimination. The addressee conceded that this assertion was supported by a decision of the Full Court in Deputy Commissioner of Taxation v De Vonk (1995) 61 FCR 564. However, she contended that that decision is no longer good law by reason of the analysis of statutory construction by the majority in Daniels Corporation International Pty Ltd v Australian Competition Consumer Commission (2002) 213 CLR 543. Secondly, the addressee argued that the covering letter created uncertainty and ambiguity. This was because, she contended, it referred to the Commissioner having a discretion to allow unspecified advice between her and her professional accounting adviser to remain in confidence without identifying the circumstances in which the discretion would be exercised. Thirdly, the addressee contended that the Commissioner had failed to seek that she voluntarily produce information and documents sought by the notice and thus acted unfairly, or failed to take into account his obligation to act fairly and reasonably, before resorting to the use of compulsory process. Fourthly, she contended that the terms in which information was sought in the notice were misleading and confusing. Fifthly, she argued that the notice failed to provide a reasonable time within which it could be answered. Sixthly, she complained that the Commissioner had, on 14 March 2012, acted unreasonably or improperly within the meaning of the AD(JR) Act in failing to extend the time for compliance with the notice. And last, she seeks to have her application referred to a Full Court of this court for hearing.

The legislative scheme

3    Relevantly s 264 provides:

“264    Commissioner may require information and evidence

(1)    The Commissioner may by notice in writing require any person, whether a taxpayer or not, including any officer employed in or in connexion with any department of a Government or by any public authority:

(a)    to furnish the Commissioner with such information as the Commissioner may require; and

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

(2)    The Commissioner may require the information or evidence to be given on oath or affirmation and either verbally or in writing, and for that purpose the Commissioner or the officers so authorized by the Commissioner may administer an oath or affirmation.”

4    The obligation created by s 264(1)(a) is made enforceable in s 8C of the Taxation Administration Act 1953 (Cth). That section relevantly creates an offence of absolute liability (see s 8C(1A)) in s 8C(1)(aa) qualified by s 8C(1B) as follows:

“(1)    A person who refuses or fails, when and as required under or pursuant to a taxation law to do so:

    …

(aa)    to give information to the Commissioner in the manner in which it is required under a taxation law to be given

… is guilty of an offence.

...

(1B)    Subsection (1) does not apply to the extent that the person is not capable of complying with the relevant paragraph.”

Background to the issue of the notice

5    On 18 July 2011 the Commissioner sought further information from the addressee in relation to the basis of her objections to his assessments and required that the information be provided by 18 August 2011. On 20 July 2011, the Commissioner sought further information about deposits made in the addressee’s account with the Commonwealth Bank (the bank account) which were the subject of her assessments and objections. The Commissioner had treated those deposits as income, but the addressee was contending that they consisted partly of interest and mostly of repayments of the principal of one or more loans. On 9 August 2011 the solicitors for the addressee responded to the Commissioner’s two requests for information by referring to the fact that many of the events had occurred up to 10 years beforehand. The solicitors sought until 18 September 2011 for the addressee to respond. The Commissioner responded promptly on 10 August 2011 and granted that extension.

6    For reasons that do not appear in the evidence, the addressee’s solicitor only responded to the Commissioner’s requests for information on 17 October 2011. The response identified several issues that had arisen in the objection process. These appeared to relate to dealings between the addressee and Erma Nominees Pty Ltd as trustee for the Erwin Binetter Family Trust and Ligon 158 Pty Limited as trustee for Caringbah Investment Trust. Those entities had been audited by the Commissioner’s office since 2006. The addressee’s solicitor’s letter of 17 October 2011 referred to indications in earlier responses made to the Commissioner “on numerous occasions during the course of the audit” and to the earlier provision of various amounts of information and documentation. The letter described the context in which the addressee found herself as including that her late husband, Erwin Binetter, had been a former director of the Erma Nominees and Ligon 158, responsible for maintaining the financial and statutory records of the companies, but he had passed away in August 2009 and for several years prior to that had suffered from dementia. The letter noted that on 27 May 2004 the premises at Pagewood in New South Wales, at which the majority of Erma Nominee’s and Ligon 158’s books and records were kept, had been destroyed in a fire. However, the solicitors provided copies, that they said their client had been able to locate, of a number of handwritten ledger entries dating from 30 June 1994 to 14 June 2001 in relation to loans by her and her husband to Erma Nominees and/or Ligon 158.

7    On 31 October 2010 the Commissioner wrote to the addressee’s solicitors indicating that a number of her objections would be treated as valid and that others were still the subject of investigation.

8    Next, on 13 January 2012 the Commissioner wrote to the addressee enclosing a notice under s 264 of the 1936 Act formally requiring her to furnish information and produce documents. The notice and covering letter were substantively in identical terms to the one the subject of the present proceedings and gave the addressee until 24 February 2012 to respond. On 30 January 2012 the addressee’s solicitors sought reasons from the Commissioner under s 13 of the AD(JR) Act for the issue of the first notice. Following some correspondence, on 20 February 2012, the Commissioner wrote withdrawing the first notice but indicating that a new one would issue shortly. That occurred on 24 February 2012 when the present notice was issued.

The notice and covering letter dated 24 February 2012

9    As I have indicated, the covering letter that accompanied the notice conveyed a deal of information. The letter informed the addressee that if she had any difficulty with the time for compliance allowed in the notice she should write to the relevant officer of the Commissioner as soon as possible and say why. It informed her, as I have said, that she was not entitled to refuse to comply with the notice on the basis that by doing so she might incriminate herself. It stated that s 264 did not override the addressee’s entitlement to rely on the legal professional privilege. As I have said, the letter also indicated the Commissioner might extend a discretion to allow certain advice between the addressee and her professional accounting advisers to remain in confidence if she applied for that to occur. The letter then said:

“The information required in the attached notice is for the purposes of the ITAA 1936 and the Income Tax Assessment Act 1997.”

10    The notice was in two parts. First, it required the addressee to provide information in writing no later than 23 March 2012 in accordance with schedule A to the notice. That, as will appear, was an exercise of the Commissioner’s power under s 264(1)(a). Secondly, the notice required the addressee by 23 March 2012 to produce documents described in schedule B that were in her custody or under her control concerning her income or assessment for the period 1 July 2001 to 30 June 2009 . Schedule A required the addressee to give information in six particular categories. The addressee substantively argued that four of the descriptions in those categories were not proper exercises of the power in s 264(1)(a) to require information.

11    The first category referred to the addressee’s objection dated 18 February 2011. That had contended that certain deposits made into a joint bank account represented repayments of loans from her to Erma Nominees as trustee of the Erwin Binetter Family Trust and Ligon 158 as trustee for the Carinbah Investment Trust. The notice then stated, “Provide full details concerning the terms and history of each purported loan, including” and then set out eight particular items of information. Those comprised the dates, account names and numbers to and from which the loans were paid, the principal of the loan, its purpose, the repayment conditions including frequency of repayments and default provisions, security and the current balance.

12    The second category of information sought commenced by reciting that on 17 October 2011 the addressee had provided copies of several handwritten extracts from the financial accounts of relevant entities. It noted the statement in her solicitor’s letter concerning the fire on 27 May 2004 that had caused the destruction of many records. The notice then said that given the addressee’s statement that the majority of the relevant records had been destroyed:

“You are required to explain for the period after 27 May 2004:

a    how the amounts of the purported loan repayments were calculated and what documents were used to calculate them, and

b    how the outstanding balance of the purported loan was determined and what documents were used to determine this.”

13    The third category commenced by stating that “an analysis of the relevant bank statements” for the bank account showed that the amounts of “the relevant deposits varied significantly”. The notice gave an example that on 25 February 2005 the addressee had received $999,992 from Ligon 158 and on 3 March 2005 she had received $8 from it, and continued:

“You are required to explain why there are significant variances in the amounts of the purported loan repayments.”

The fourth category of information sought in the notice was as follows:

“Advise whether at any time during the relevant period, Erma Nominees and/or Ligon 158 were unable to meet their obligations under the purported loan arrangement and failed to make repayments or were unable to make repayments to you in full. If so, provide full details of how the purported loan agreement dealt with such default payments and whether this clause was enforced. If this was not enforced, explain why not.”

14    The addressee also faintly argued that the description of the documentation to be provided in schedule B of the notice may have required her to obtain documents from persons whom she could not compel to provide them and thus expose her to committing an offence. For example, she identified a requirement to produce documents that were used to calculate the amounts of the purported loan repayments for the period after 27 May 2004. However, during the course of argument, the Commissioner pointed out that the requirement in the notice to produce documents related only to those that were in her custody or under her control, in conformity with the limitation on the Commissioner’s power in s 264(1)(b). As a result, this argument was not further pressed.

The issues for interlocutory relief

15    In determining whether interlocutory relief should be granted, the addressee, first, must make a prima facie case in the sense that if the evidence remains as it is there is a probability that at the trial of the action she will be held entitled to final relief. Second, she must establish that the inconvenience or injury which she would be likely to suffer were an injunction refused outweighs or is outweighed by the injury which the Commissioner would suffer if an injunction were granted: Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at 81-82[65] per Gummow and Hayne JJ, and at 68[19] per Gleeson CJ and Crennan J, applying Beecham Group Limited v Bristol Laboratories Limited (1968) 118 CLR 618 at 622-623 per Kitto, Taylor, Menzies and Owen JJ.

Has the addressee established a prima facie case?

16    The first issue is whether the addressee has made out a prima facie case for relief. She argued that the covering letter’s reference to her having no right to invoke the privilege against self-incrimination was erroneous. In connection with that argument she sought to have the whole matter, or that issue, referred to a Full Court so that it could be in a position to determine, unlike a single judge, that De Vonk 61 FCR 564 had been wrongly decided. Indeed, as recently as 9 March 2012, Lander J noted that a single judge was bound by De Vonk until the Full Court or High Court said otherwise: Australia and New Zealand Banking Group Limited v Konza [2012] FCA 196 at [69]. In the circumstances, I agree with his Honour’s view.

17    In my opinion, it is not appropriate at this stage of the proceedings to refer, or seek that the Chief Justice exercise his power under s 20(1A) of the Federal Court of Australia Act 1976 (Cth) to refer, this matter to a Full Court. First, such a reference would not dispose of the whole of the matter if it were only to deal with the issue of self-incrimination. It would tend to bifurcate the proceedings and leave them in an inconclusive state, generating further delay. Secondly, it would not be convenient for a Full Court to deal with the other issues in the proceedings that require resolution without that Court having had the benefit of a trial judge’s reasoning and distillation of the issues. Accordingly, I will not refer the matter to a Full Court or to seek the Chief Justice’s direction that it be heard by a Full Court either in a cognate way or with respect simply to the issue of self-incrimination. It follows that, however well-developed the addressee’s arguments are with respect to the correctness of De Vonk 61 FCR 564, at a final hearing a single judge will not be likely to uphold that argument.

18    The second ground on which the addressee argued that the notice was bad was the vagueness of the covering letter’s reference to the availability of a concession that she might not be required to disclose accounting advice. In my opinion, that is not a sufficient basis on which to grant interlocutory relief. There is no general privilege recognised by common law or statute for persons to protect advice received from financial advisers or accountants from compulsory disclosure, unlike the well-recognised ground of legal professional privilege. In the covering letter, the Commissioner offered to consider allowing the addressee to withhold accounting advice provided she could put forward some basis for his doing so. I do not consider that the offer to exercise a discretion that the law did not afford the addressee could be seen as a matter that would be likely, at trial, to be held to invalidate the notice.

19    The third and fifth grounds of the addressee’s challenge to the notice should be considered together. Both deal with the reasonableness of the Commissioner seeking to invoke his power to issue the notice and provide for a time in which it be answered. First, given the history I have recited, I am not satisfied that the addressee has shown that it is likely she will succeed at trial in showing that the Commissioner had failed to seek from her voluntarily information of the kind she is required to provide in the notice. The onus is on a addressee to establish either before the Commissioner, when an objection is made to an assessment, or before the Administrative Appeals Tribunal on a review of an objection decision, that the assessment is excessive. That being so, it is in the interest of a taxpayer in the position of the addressee to provide the Commissioner with information going to support an objection. Nonetheless, the Commissioner is entitled to exercise powers conferred on him under the 1936 Act and other taxation laws for the purpose of administering those laws including in considering a taxpayer’s objection to an assessment. The discretion to issue a notice conferred by s 264(1) is one that is unconfined. Indeed, in Federal Commissioner of Taxation v Australia and New Zealand Banking Group Limited (Smorgon’s case) (1979) 143 CLR 499 at 524, 536 the High Court held that the Commissioner was entitled to, in the words of Gibbs ACJ, “make a roving inquiry” or in the words of Mason J, “fish”.

20    Secondly, the addressee’s argument that the time afforded for compliance in the notice was on its face “so manifestly unreasonable that no reasonable person in the position of the recipient could possibly comply with it”, in my opinion, is unlikely to succeed at a trial. In the ordinary course, the onus is on the recipient of a notice to demonstrate why the time allowed is insufficient: Fieldhouse v Commissioner of Taxation (1989) 25 FCR 187 at 198-199 per Lockhart J, and at 220 per Hill J, with whom Burchett J at 204 agreed on this point. The events preceding the issue of the notice can be taken into account when determining if the time allowed for compliance is reasonable: 25 FCR at 219 per Hill J. In light of the history of the dealings between the addressee and the Commissioner relating to the provision of the information, I am not satisfied that it is likely that the addressee will succeed at trial in demonstrating that, in all of the circumstances, she had not been given a reasonable time from the original issue of the notice on 24 February 2012 to respond to it by 23 March 2012.

21    The final ground of objection also complained that the terms of the notice were misleading or confusing in respect of the four categories that I identified at [11]-[13] above. First, the addressee argued that the requirement to provide “full details concerning the terms and history of each purported loan”, in the first category of information in the notice was misleading and confusing. Once again, I am not satisfied that this argument is likely to succeed at a final hearing. It is important that a notice identify with sufficient clarity the subject matter that is sought to be produced. In Fieldhouse 25 FCR at 208 Hill J said (with whom on this point Burchett J agreed at 204, and Lockhart J came to a similar conclusion at 197):

“Where information is required by the section to be furnished, the request for information should be so framed as to be sufficiently clear to convey to the addressee what information is sought and a notice which was unintelligible would obviously be bad. However, it does not follow from this that the question of the validity of a notice should be approached carpingly by engaging in a narrow analysis of each word in an attempt to find some latent ambiguity in it. Rather the approach to be adopted is to ask in respect of any particular request whether a reasonable man in the position of the addressee of the notice can fairly comply with it and not be thereby exposed to the possibility of penalty for non-compliance having regard to the manner in which the notice is formulated.”

22    The first category of schedule A of the notice required the addressee to provide full details concerning the terms and history of each purported loan including a number of particular items. Her objection had raised the assertion that relevant deposits represented loan repayments in respect of loans she had been party to making. That provided the context in which that requirement complained of was made. I am not satisfied that the addressee has shown that it is sufficiently likely that at trial a judge would find that a reasonable person in her position could not fairly comply with the notice. The scope of the power conferred under s 264(1) was explained by Mason J in Smorgon’s case 143 CLR at 535-537 in terms that have been subsequently approved on a number of occasions. He said that the power contained in s 264(1)(a) to require information to be furnished was given to the Commissioner for the purpose of enabling him to perform his functions under the Act, and had to be circumscribed by reference to that purpose. Here, the covering letter referred, in a conventional way, to the information being required for the purposes of the 1936 Act and the Income Tax Assessment Act 1997 (Cth).

23    Mason J then went on to explain that the power of the Commission to issue a notice under the section was not limited to any issue or dispute of fact arising between a taxpayer and the Commissioner, and that the power was a far-ranging one. His Honour discussed the extent of the power to require production under s 264(1)(b). He noted the limitation in that provision to documents relating to a person’s income or assessment but that no such limitation was present in s 264(1)(a). Mason J discussed the position when a notice under s 264(1)(b) required a recipient to produce “all books, documents and other papers in his custody or control relating” to the income or assessment of the person whose name was stated in the notice, saying (with Jacobs J’s and Murphy J’s agreement at 541, 542 and 547):

“It is then for the recipient to decide for himself, difficult though the task may be, which of the documents answer the description. If his decision is wrong he exposes himself to prosecution and penalty.

The existence of this hazard is not a sufficient basis for the conclusion that the section requires the Commissioner to give a notice in such terms as would enable the recipient on reading it and on examining the documents in his custody or control to determine whether they fall within the ambit of the Commissioner's powers. To so hold would be to impose an impossible burden on the Commissioner. In many, if not most, cases he will be unaware of the contents of the documents of which he seeks production.” (emphasis added)

24    Accordingly, Mason J held that it would frustrate the object of conferring the power, and be inconsistent with the purpose of s 264(1)(b) as he had explained it, to create some limitation on the scope of the Commissioner’s power in that regard. I think similar considerations must also inform the construction of s 264(1)(a), particularly since that power can apply to situations well beyond the income or assessment of a particular taxpayer. In the present case it is tolerably clear that the Commissioner requires information concerning the circumstances in which the loans, the subject of the addressee’s objections, were made, how they performed and what their terms were. In my opinion the way in which the notice has been framed is not likely to be found at trial to exceed the power conferred by s 264(1)(a).

25    The notice’s second requirement for information obliged the addressee to explain how the amounts of the repayments were calculated, the documents used to do so, how the outstanding balance of the loans were determined, and the documents used to determine that process. The addressee argued that this requirement was ambiguous in terms of what would suffice. In my opinion it is unlikely that this argument will find success at trial. Lockhart J said in Fieldhouse 25 FCR at 197 that the use of the word “explained” in a notice in relation to a requirement for an addressee to explain certain events, incidents, circumstances or the nature of certain relationships did not suggest that in that case the word had been employed unduly widely. He said (see too per Hill J at 211-212):

“I suppose it is always possible for a draftsman to use a different word to “explain”, but I see no vice in its use in this context.”

26    The question here is whether the addressee has established a prima facie case that a reasonable person in her position could fairly be obliged to comply with the requirement in the notice to “explain” how amounts, that she asserted in her objection were loan repayments, had been calculated, the documents that had been used to do so and what the balance of the loan was. In my opinion, it is unlikely that a trial judge would find, in this context, that requirement to be an ambiguous or unduly onerous obligation such as would invalidate the notice.

27    The third category of information sought in the notice was a requirement to explain why there were significant variances in the amounts of the purported loan repayments, having regard to an analysis of the relevant bank statements, that the Commissioner did not identify in the notice. Doubtless, the bank statements were ones that had been provided to the Commissioner by the addressee. They are not in evidence. The addressee has the onus of demonstrating that a reasonable addressee of the notice would not be able to comply with the requirement. In my opinion, it is likely that, on the state of the evidence before me, if that were the evidence at a trial, the addressee would not be able to persuade the trial judge that this aspect of the notice was insufficiently precise. That is because the addressee was aware of what the contents of the bank statements were but has not demonstrated how, having regard to the illustration the Commissioner made of a variance of almost $1 million between deposits, she would be unable to identify those variances which were significant in the amounts of deposits that she claimed in her objection were loan repayments.

28    In this regard, I am mindful that this requirement to give information was imposed on the addressee in circumstances where she had made an objection to assessments. She had been aware, from the history that I have outlined, of the nature of the difficulties with which both she and the Commissioner have been grappling over the loans. She was aware, that through no fault of her own, there were inadequacies in the documentation now available to deal with her objections. There was no evidence that the bank statements referred to in the notice left open a suggestion that the addressee would be confronted with difficulties in explaining the relevant variances. Accordingly, I am not satisfied that she has demonstrated a sufficient prima facie case that would warrant a grant of interlocutory relief.

29    The fourth category of information sought required the addressee to advise whether Erma Nominees or Ligon 158 were unable to meet their obligations under the purported loan arrangements, had failed to make repayments or were unable to make repayments to her in full. The addressee argued that this required her to form a legal opinion or a conclusion of fact about the solvency of the borrowers. She also argued that the second sentence of the requirement required her to provide full details of how the purported loan agreement “dealt with such default payments”.

30    It is not clear to me what the reference to “such default payments” related to or whether there was a suggestion in the dispute that there were some default payments. There is a sense of ambiguity in the requirement in this category as to what advice the addressee had to give the Commissioner concerning whether “at any time during the relevant period” either of the two debtors was “unable to meet their obligations under the purported loan arrangement and failed to make repayments.” This could require the addressee to assess whether she had to identify and then made a judgment about whether she had to explain the state of solvency of two debtors over a long period or any particular point or points in time. In addition, there is a lack of clarity about what the reference back to “such default payments” was intended to mean.

31    Where a notice requires a person to provide information in exercise of a compulsory power to do so, and a failure to comply with it creates an offence, it is incumbent upon the drafter to specify with sufficient clarity precisely what information is sought. I think that it is arguable that the fourth category lacks sufficient clarity to be a valid exercise of the power to require the addressee to furnish information under s 264(1)(a). This is because the rolled-up way in which the fourth category is expressed and its references to default payments, that are otherwise unexplained in the evidence, and the provision of information about the solvency of the two debtors has the potential to confuse or mislead the addressee about what was required.

The balance of convenience

32    The Commissioner accepted that if interlocutory relief were not granted and the matter cannot be heard and decided on a final basis before 23 March 2012 (as is the case), the addressee will in substance have lost her opportunity to contest the validity of the notice in judicial review proceedings. He relied on the late stage at which these proceedings were commenced as warranting the refusal of any relief to which the addressee might otherwise be entitled were she able to establish a prima facie case.

33    I reject that contention. The Commissioner delayed for a significant period of time in providing any reasons under s 13 of the AD(JR) Act. Initially the addressee requested reasons for the issue of the first notice on 30 January 2012. The Commissioner knew that that request was pressed up to and including last week, despite his withdrawal of the first notice on 20 February.

34    By the time the second notice came to be issued, the Commissioner ought to have been in a position to have issued s 13 reasons for that second notice promptly, if not immediately. That is because he knew that the addressee wanted his reasons and that their absence would affect her ability to seek relief in the Court. In the event, I was informed, the reasons were only provided late on Friday 16 March after the interlocutory application had been fixed for hearing on 19 March 2012. The addressee did not seek to rely on anything contained in those reasons on the interlocutory application before me. Nonetheless I do not consider that she was to blame for only commencing the proceedings on 16 March, before any reasons had been provided. The Commissioner had told her on 14 March that no reasons would be given for the original decision and that it was anticipated that his reasons for the second decision would be made available shortly.

35     In the ordinary course, an executive decision-maker ought be mindful of the rights that the Parliament has created on both sides in exercising a power created by legislation to subject a person to a compulsory process where the law also provides that the person affected is entitled to reasons for the invocation of that power. In such cases the Parliament intended that the person affected have an opportunity to consider whether the decision-maker’s reasons reveal a basis in law for challenging the decision. If there is no particular urgency for the enforcement of the process within a particular time or circumstance, ordinarily the decision-maker should have regard to the entitlement provided in legislation, such as s 13 of the AD(JR) Act and s 25D of the Acts Interpretation Act 1901 (Cth), for a person affected by the use of the power to seek and be furnished with reasons for the decision to use it in order that its legality can be tested in exercise of the judicial power of the Commonwealth. That is an important aspect of the rule of law underpinning the accountability of the executive to judicial review under s 75(v) of the Constitution and s 39B of the Judiciary Act 1903 (Cth).

36    In my opinion, the tardiness of the Commissioner’s response to the predictable s 13 request for reasons justifying the issue of the second notice that the addressee made on 5 March 2012 provided her with a good reason to delay in seeking to move the Court for relief. Why should a person, in the addressee’s position, be required to take proceedings peremptorily if the decision-maker fails timeously to provide his or her reasons to justify a decision to exercise a power that subjects the person to serious, and in this case criminal, consequences for failure to comply with the decision. If the reasons were provided, the person may be able to ascertain from them whether some error had been made that entitled him or her to relief from the Courts: Dalton v Federal Commissioner of Taxation (1986) 160 CLR 246 at 250 per Gibbs CJ, Mason, Wilson, Brennan and Dawson JJ.

37    Unnecessary litigation can be avoided by a prompt provision of reasons. Of course, that is not always possible. There will often be exigencies in executive decision-making, and indeed in the need to enforce the law, that do not always make it desirable, practicable or sensible for a decision-maker to provide immediately reasons for a decision under s 13 of the AD(JR) Act or its analogues. But, in this case I do not consider that the addressee is disentitled to interlocutory relief for having held off commencing proceedings while she awaited a response to her right to be given the Commissioner’s reasons for exercising the power to issue either of the two notices.

The form of relief

38    As recently as 14 March 2012, the Commissioner asserted in correspondence that he had no power to extend the time to comply with a notice under s 264(1)(a). That assertion was spurious. In Williment v Federal Commissioner of Taxation (2010) 190 FCR 234 at 235-236 [2]-[5] Perram J considered an application to extend time for compliance with a s 264 notice. He pointed out, correctly in my opinion, that the Commissioner has power under s 33(3) of the Acts Interpretation Act to rescind or amend any notice issued under s 264(1). That power clearly authorises the Commissioner to extend the time for compliance with a notice under s 264(1) that he has issued.

39    In contrast to his client’s letter of 14 March 2012, senior counsel for the Commissioner accepted in his written submissions the correctness of Perram J’s view as to application of s 33(3) of the Acts Interpretation Act. The Commissioner’s antecedent correspondence should not have advanced the contrary and erroneous assertion. Moreover, it has been the law since Stephen J stated in Smorgon’s case 143 CLR at 511 that the Commissioner can extend the time for compliance with a notice under s 264(1). In that case the issue was whether the Commissioner could adjourn a requirement under s 264(1)(b) for a person to attend and give evidence. His Honour said no authority supported the submission that the Commissioner lacked a power to adjourn from time to time the requirement to attend and give evidence. He held that the terms of s 264(1) did not lend that submission any support.

40    The Court has power to grant a mandatory interlocutory injunction under s 23 of the Federal Court of Australia Act. That section creates power to make orders of such kinds, including interlocutory orders, as the Court thinks appropriate. The general principle that informs the exercise of that power is that where the Court can grant final relief against a party it may make such orders, at least, against that party, as are needed to ensure the effective exercise of the jurisdiction invoked: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at 33 [35] per Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ. This includes power to make interlocutory orders so as to prevent frustration of the Court’s processes in the present proceedings.

41    I am of opinion that because the Commissioner is entitled to fix a time for compliance when issuing a notice under s 264(1)(a), he may later from time to time amend that time. The Court can grant a mandatory interlocutory injunction requiring the Commissioner to exercise his power to extend the time for compliance with a notice under s 264(1)(a). That power can be exercised to provide utility to the process of a challenge to the decision to issue the notice so as not to expose its addressee to committing an offence of absolute liability for non-compliance within the original time stipulated: Williment 190 FCR at 235-236 [4].

42    In addition, s16(1) of the AD(JR) Act creates a discretionary power in the Court, on an application for an order of review in respect of a decision, to make an order directing any of the parties to do an act. And, s 16(4) entitles the Court, at any time on its own motion or an application of any party, to revoke, vary or suspend the operation of any order made by it. The Commissioner also argued that the addressee’s application for a stay of her obligation to answer the notice on 23 March 2012 could not be justified under s 15(1)(a) or (b) of the AD(JR) Act. It is not necessary to consider that argument.

43    Accordingly, I am satisfied that the Court has power to order the Commissioner to amend a notice issued under s 264 by extending the time for compliance with that notice to any time the Court considers appropriate. The Court must have such a power for the purposes of it being able effectively to exercise its jurisdiction to determine the validity of the notice, without exposing the recipient of the notice to the consequence that he or she may have committed a criminal offence before the Court is able to come to a final decision. The more is this so where, as in this case, the Commissioner has delayed in providing the addressee with reasons that may have been available to inform him or her of their course of action: Dalton 160 CLR at 250.

Conclusion

44    Accepting that the Commissioner is entitled to conduct a roving inquiry or to fish for information, I think that there is a sufficient prima facie case raised by the addressee as to the precision with which the fourth category in the notice was framed. It is sufficiently arguable that at a final hearing the Court would find that the addressee may have been left in a state where the information sought has not been sufficiently or intelligibly identified for her to be required to answer the fourth category. The addressee may suffer significant prejudice if the notice were allowed to expire and that requirement were later found to be bad. The Commissioner has been unable to identify any particular prejudice to him from a short delay in the matter being allowed to go to final hearing.

45    I will order that the Commissioner extend the times for compliance with the notice subject to further order, up to and including the fourteenth day after the making of final orders in these proceedings.

Associate:

Dated:    13 April 2012