FEDERAL COURT OF AUSTRALIA

McCarthy v Commissioner of Taxation (No 2) [2015] FCA 1346

THE COURT ORDERS THAT:

1.    Leave to the applicant to amend his originating application to include paragraphs 4, 5, 9, 10 and 11 of the proposed amended interlocutory application annexed to the amended interlocutory application filed by the applicant on 12 July 2013 be refused.

2.    The applicant’s application for leave to join the Chief Executive Officer of the Australian Crime Commission or the Australian Crime Commission be refused.

3.    Costs be reserved.

4.    Any submissions as to costs are to be made at the next listing of these matters, on 9 December 2015.

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

THE COURT ORDERS THAT:

1.    The claims for relief in paragraphs 4, 5, 9, 10 and 11 of the applicant’s originating application be dismissed.

2.    The second respondent be removed as a party to the proceedings.

3.    Costs be reserved.

4.    Any submissions as to costs are to be made at the next listing of these matters, on 9 December 2015.

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

REASONS FOR JUDGMENT

1    These reasons concern interlocutory applications as to claims or proposed claims against the Australian Crime Commission (ACC) and the status of the ACC as a party or as a proposed party in proceedings for judicial review having as their object the quashing of certain tax assessments.

2    The background to the present interlocutory applications is to be found in McCarthy v Commissioner of Taxation [2013] FCA 715 and in Seller v Commissioner of Taxation [2013] FCA 1373; 308 ALR 376. In 2011, Mr McCarthy and Mr Seller filed tax appeals in this Court under Pt IVC of the Taxation Administration Act 1953 (Cth). Each applicant later brought proceedings under s 39B of the Judiciary Act 1903 (Cth) seeking to have the assessments held invalid and quashed. The decision in Seller (above) concerned the granting of a stay of the Pt IVC proceedings pending the final outcome of related criminal proceedings in the Supreme Court of New South Wales. The decision in McCarthy (above) concerned the jurisdiction of this Court to hear the s 39B applications in light of the criminal proceedings in the Supreme Court, and whether the s 39B proceedings should be transferred to the Supreme Court.

3    As will be seen, the procedural difference between the two sets of s 39B proceedings is that in Mr McCarthy’s case, the originating application filed on 21 September 2012 does not name the ACC as a party: there are proposed claims against the ACC and the applicant seeks to join the ACC as a party. In Mr Seller’s case there are claims against the ACC and the ACC is named as a party in the originating application filed by Mr Seller on 23 April 2013, but the ACC has sought that those claims be dismissed and that it be removed as a party. Mr McCarthy seeks to align his proceedings with Mr Seller’s.

4    As indicated at [2] above, the resolution of these questions has been stood over while related criminal proceedings against Mr Seller and Mr McCarthy were before the Supreme Court of New South Wales. Each has now been acquitted of the charges against him. This Court now has jurisdiction in respect of the remaining matters as there are no longer related criminal proceedings before the Supreme Court.

5    Following the conclusion of the criminal proceedings, no party wished to make further submissions on these issues following the hearing of the interlocutory applications in the s 39B proceedings, concluding on 16 July 2013.

NSD 1440 of 2012 – Mr McCarthy

6    In matter number NSD 1440 of 2012, the application brought by Mr McCarthy, there is an originating application for relief under s 39B of the Judiciary Act filed on 21 September 2012 and a proposed amended originating application for relief under s 39B. The applicant filed an interlocutory application on 14 January 2013, seeking leave to file and serve an amended originating application and to join the ACC as the second respondent. By an amended interlocutory application filed on 12 July 2013, the applicant seeks leave to file and serve a different amended originating application and seeks also to join the Chief Executive Officer of the ACC (or the ACC itself) as the second respondent.

7    The relevant paragraphs of the proposed amended originating application, annexed to the amended interlocutory application of 12 July 2013, so far as concerns the ACC were as follows:

…

4.    A declaration that any decision of the Second Respondent to disclose the following material to the First Respondent or any other person for purposes of assessment was invalid:

(i)    [this was redacted by the applicant]

(ii)    [this was redacted by the applicant]

(iii)    material seized on 9 June 2005 pursuant to section 3E of the Crimes Act 1914 (“Crimes Act”) and information and documents obtained by the second respondent using the second respondent’s powers (“Search warrant Material”).

5.    A declaration that the provision by the Second Respondent to the First Respondent of the material identified in paragraphs 4(i)-(iii) above, for purposes of issuing the Assessments, was unlawful.

…

9.    A declaration that the search warrants issued under section 3E of the Crimes Act on 8 June 2005 naming Steven Economou as the executing officer were invalid.

10.    A writ of mandamus that the Second Respondent return to the Applicant material unlawfully seized under search warrants executed on 9 June 2005.

11.    A writ of mandamus that the Second Respondent destroy material derived from material unlawfully seized under search warrants executed on 9 June 2005.

…

8    The submissions on behalf of the applicant, Mr McCarthy, were as follows.

9    Mr McCarthy submitted that there were a number of reasons why the proposed pleading against the ACC in the present proceedings should be permitted.

10    First, the ACC did not accept that it had done anything unlawful. Mr McCarthy submitted he would be able to prove to the contrary.

11    Secondly, the same issue arose against the respondent Commissioner of Taxation (the Commissioner) in the s 39B proceeding and it was therefore convenient to also seek the same declaration in relation to the ACC.

12    Thirdly, the point also affected other proceedings. If the applicant were successful in the s 39B application and the Court granted relief in relation to the assessments, it was relevant to know what material could then be used if a further assessment were to be issued. Most of the material that the Commissioner could assess the applicant on had some connection with or some origin from the ACC, and there was an interest in knowing whether the ACC could or could not provide that material to the ATO for the purpose of assessments. There were also recovery proceedings on foot.

13    It was also relevant to Mr McCarthy’s related Pt IVC proceedings. Section 43B of the Mutual Assistance in Criminal Matters Act 1987 (Cth) spoke in terms of “is inadmissible in evidence in any other proceeding”, and that included the Pt IVC proceedings. This provision dealt with not only material directly obtained by way of mutual assistance but it also applied to material obtained indirectly from that material, and that covered a wide range of material.

14    A further point was that the project pursuant to which material was provided by the ACC to the ATO was described as a joint investigation and it was submitted that the actions of the ACC in passing over this material was done jointly with the ATO.

15    The application was sufficient by itself without joining the ACC, except to the extent that the ACC acted jointly with the ATO. The applicant submitted the ACC was a necessary party because it was alleged that the unlawfulness was the ATO being relevantly concerned, under s 11.2 of the Criminal Code Act 1995 (Cth) Sch 1 (Criminal Code), in actions by the ACC in handing the material over to the ATO. The applicant did not say the Commissioner did it knowing that he was committing an offence but, the applicant said, that was not something he had to prove in order to show that the respondent acted unlawfully. It followed, the applicant submitted, that the ACC was a necessary party, at least at that level, even in relation to the relief sought against the Commissioner in setting aside the assessments.

16    There was a separate reason altogether why, the applicant submitted, the ACC should be joined and that was because there were common issues. Given the applicant was going to bring this application anyway and it had common issues, it may as well be dealt with in the one proceeding. The source of the documents relied upon and provided to the ATO was a common issue, and there was a factual question as to which documents were directly or indirectly obtained.

17    The reason why proposed paragraph 4 was important as well, it was submitted, was that the internal workings of the ACC were a matter which the Commissioner was unlikely to know about in detail, and s 43B(3) of the Mutual Assistance in Criminal Matters Act dealt with material obtained indirectly from documents, information, articles and things obtained from foreign countries. The Commissioner was unlikely to have direct knowledge of this material that was indirectly obtained.

18    Reference was also made to s 51(3) of the Australian Crime Commission Act 2002 (Cth). Section 51 provides, relevantly:

51  Secrecy

(1)    This section applies to:

(a)    the CEO; and

(aa)    a member of the Board; and

(b)    a member of the staff of the ACC; and

(c)    an examiner.

(2)     …

(3)    A person to whom this section applies shall not be required to produce in any court any document that has come into his or her custody or control in the course of, or by reason of, the performance of his or her duties under this Act, or to divulge or communicate to a court a matter or thing that has come to his or her notice in the performance of his or her duties under this Act, except where the ACC, or the CEO, the acting CEO, a member of the Board or an examiner in his or her official capacity, is a party to the relevant proceeding or it is necessary to do so:

(a)    for the purpose of carrying into effect the provisions of a relevant Act; or

(b)    for the purposes of a prosecution instituted as a result of an operation or investigation carried out by the ACC in the performance of its functions.

(4)    In this section:

court includes any tribunal, authority or person having power to require the production of documents or the answering of questions.

member of the staff of the ACC means:

(a)    a person referred to in the definition of member of the staff of the ACC in subsection 4(1); or

(b)    a person who assists, or performs services for or on behalf of, a legal practitioner appointed under section 50 in the performance of the legal practitioner’s duties as counsel to the ACC.

produce includes permit access to, and production has a corresponding meaning.

relevant Act means:

(a)    this Act; or

(b)    a law of a State under which the ACC performs a duty or function, or exercises a power, in accordance with section 55A; or

(c)    the Law Enforcement Integrity Commissioner Act 2006 or regulations under that Act; or

(d)    the Parliamentary Joint Committee on Law Enforcement Act 2010 or regulations under that Act.

19    This meant that the ACC need not produce documents in proceedings to which it was not a party. If the ACC was not going to rely upon that provision in declining to participate in these proceedings by production of documents then that would be a relevant matter supporting the otherwise proper joinder of the ACC.

20    The submissions on behalf of the ACC were as follows. In submissions dated 3 April 2013 the ACC opposed Mr McCarthy’s interlocutory application filed 14 January 2013 to amend his originating application to include the new relief in the then proposed paragraph 3A, similar in terms to paragraph 4 of the amended originating application sought to be filed by the amended interlocutory application filed on 12 July 2013 (set out at [7] above). In any event, the ACC submitted, proposed paragraphs equivalent to proposed paragraph 3A(i) and (ii) should not be allowed on the basis that the ACC did not provide any “Mutual Assistance Material” to the Commissioner. The ACC’s opposition to the proposed amendments was on the basis that the declaration sought against it would serve no useful purpose as it was not determinative of any present right of the applicant but rather was a bare declaration as to past conduct, and the declaration was not a prerequisite to the substantive relief sought against the Commissioner, namely the setting aside of the assessments. At the time of the ACC’s submissions dated 3 April 2013 the then proposed paragraph 3A was the only prayer for relief that was directed to the ACC.

21    The ACC submitted that Mr McCarthy had not identified a single reason that explained why it was necessary in the circumstances of this case apparently to seek a declaration as to past conduct by the ACC. The submission was made that the declaration was not a prerequisite to the substantive relief that was sought against the Commissioner.

22    The proposition that the ACC did not accept that it had done anything unlawful did not give any proper basis for seeking that relief and suggestions that the ACC could somehow learn from this were entirely misconceived. Ultimately, what the applicant appeared to be suggesting was that the facts which he alleged were relevant to the relief he sought against the Commissioner but, assuming that to be so, that did not make it appropriate to seek relief in the terms the applicant proposed.

23    The ACC said it did not understand the proposition that there were common issues. There was one proceeding on foot to which it was not a party. There was some suggestion that there could be or should be another proceeding brought against it. No such proceeding had been identified. Mr McCarthy seemed to have said there was a common issue, or common issues, as to what he was alleging against the Commissioner and against the ACC but unless there was proper relief sought against the ACC, it was not a necessary party and it did not wish to participate in the proceedings.

24    The ACC submitted that the existence of s 51(3) of the Australian Crime Commission Act was not a proper basis for joinder of a party as that would be to seek to get around statutory immunity provisions.

25    In relation to the further interlocutory application filed by Mr McCarthy on 5 July 2013 seeking leave to file additional amendments to those sought in the interlocutory application filed on 14 January 2013, the ACC submitted that even if the Court found it had jurisdiction in relation to proposed paragraphs 9, 10 and 11 of the proposed amended originating application in light of the criminal proceedings which were then before the Supreme Court, leave to include those amendments should be refused on the ground that the Court would in any event refuse the relief sought on discretionary grounds. The ACC expanded on this issue in its outline in the Seller proceedings: (see [34] below).

26    The ACC submitted that if the Court refused leave to the applicant to amend his originating application to include paragraphs 9, 10 and 11, the Court should also refuse leave to join the ACC as a party as there was no relief relevantly sought against it so that it was not a necessary party to the proceeding. If the Court granted leave to the applicant to amend to seek relief against the ACC then the ACC should be joined as a party. If the ACC was joined as a party, the proper juristic entity would be the “Chief Executive Officer of the Australian Crime Commission” of the Commonwealth.

27    The Commissioner drew attention to the rule that, he submitted, seemed to be brought into play by the application, being r 9.05(1)(a) of the Federal Court Rules 2011 (Cth), and the question became whether or not the ACC ought to have been joined as a party to the proceedings. In circumstances where it was only a bare claim of declaratory relief in relation to past conduct and where there was no substantive relief sought against the ACC there did not seem to be a proper basis for the ACC to be joined.

NSD 704 of 2013 – Mr Seller

28    In matter number NSD 704 of 2013, an application for relief under s 39B of the Judiciary Act brought by Mr Seller, the ACC is the second respondent. By an interlocutory application filed on 16 July 2013, the ACC applies for the following interlocutory orders:

1.    Pursuant to r 26.01 of the Federal Court Rules and s 31A of the Federal Court of Australia Act [1976] (Cth), the claims for relief in paragraphs 4, 5, 9, 10 and 11 of the applicant’s originating application be dismissed.

2.    The second respondent be removed as a party to the proceedings.

3.    The applicant pay the second respondent’s costs of the proceedings.

4.    Such other orders as the Court thinks fit.

29    The claims for relief in the nominated paragraphs of the applicant’s originating application were as follows:

…

4.    A declaration that any decision of the Second Respondent to disclose the following material to the First Respondent or any other person for purposes of assessment was invalid:

(i)    material obtained under the Mutual Assistance in Criminal Matters Act 1987 (“MACMA”) in relation to Operation Polbream, the whisky ventures that are the subject of the Assessments or Operation Tintagel (“Mutual Assistance Material”);

(ii)    information, documents, articles or things obtained directly or indirectly from a person by making use of the Mutual Assistance Material (“Mutual Assistance Derivative Material”);

(iii)    material seized on 9 June 2005 pursuant to section 3E of the Crimes Act 1914 (“Crimes Act”) and information and documents obtained by the second respondent using the second respondent’s powers (“Search warrant Material”).

5.    A declaration that the provision by the Second Respondent to the First Respondent of the material identified in paragraphs 4(i)-(iii) above, for purposes of issuing the Assessments, was unlawful.

…

9.    A declaration that the search warrants issued under section 3E of the Crimes Act on 8 June 2005 naming Steven Economou as the executing officer were invalid.

10.    A writ of mandamus that the Second Respondent return to the Applicant material unlawfully seized under search warrants executed on 9 June 2005.

11.    A writ of mandamus that the Second Respondent destroy material derived from material unlawfully seized under search warrants executed on 9 June 2005.

…

30    The submissions of the applicant, Mr Seller, were that orders directly against the ACC were sought. Furthermore, as a step along the way to determining whether the first respondent, the Commissioner, had acted unlawfully or in contravention of the Public Service Act 1999 (Cth), the applicant submitted that it would be necessary for the Court to form a view upon whether the conduct of the ACC in providing material to the Commissioner for the purposes of assessment was lawful. Whether it was ultimately necessary to obtain relief against the ACC in order to succeed against the Commissioner, the applicant would nevertheless be seeking adverse findings against the ACC as set out in the originating application filed on 23 April 2013. After referring to r 9.02 of the Federal Court Rules, the applicant, Mr Seller, submitted that the relief sought by him was a direct and necessary consequence of the facts and matters pleaded in the originating application.

31    Rule 9.02 of the Federal Court Rules was in the following terms:

31.02    Joinder of parties—general

An application may be made by 2 or more persons, or against 2 or more persons, if:

(a)    a separate proceeding could be made by or against each person in which the same question of law or fact might arise for decision; and

(b)    all rights to relief claimed in the proceeding (whether joint, several or alternative) arise out of the same transaction or event or series of transactions or events.

32    It was submitted that the ACC’s discharge of its statutory duties lay at the heart of the claim against the Commissioner and reference was made, by way of analogy, to Evans v Superannuation Complaints Tribunal [2002] FCA 79. In that case, at [6], Finn J said:

I am satisfied that the [CSS] Board ought to have been joined as a party. The proper discharge of its statutory responsibilities provides the substantial question to be determined. It properly should be heard on that matter. Mr Evans cannot defeat that necessity by the contrivance of claiming that all that is in issue in this proceeding is the bare question of the Tribunal’s jurisdiction to hear and determine an application for review made to it. The Board has a vital interest in the matter which bears directly on its discharge of its statutory responsibilities: cf Strickland and Nudding on behalf of the Maduwongga People v Native Title Registrar [1999] FCA 1089 at [23]-[24]. I would add, echoing the view taken by French J in that case that, with the Tribunal properly taking the stance it has in this proceeding, it is in the interests of justice and the proper administration of the Superannuation Act 1976 that the Court have the benefit from parties properly joined of submissions on both sides of the argument. The Board put submissions to the Tribunal in respect of its decision and it is, correspondingly, the proper adversarial party in this proceeding: Commonwealth v Human Rights and Equal Opportunity Commission (1998) 152 ALR 182 at 206-207; Geographical Indications Committee v The Honourable Justice O’Connor [2000] FCA 1877.

33    Mr Seller submitted that the validity of the search warrants and the validity and lawfulness of the disclosure by the ACC of Mutual Assistance Material, Mutual Assistance Derivative Material and Search warrant Material, to the Commissioner for the purpose of assessment were real questions of fact and law to be tried. Relief was sought directly against the ACC. It would be procedurally unfair for the ACC not to be a party with appeal rights. In the alternative, it was submitted, even if it was not necessary to give relief against the ACC, for the applicant to be successful in quashing the assessments, the Court would be required to make findings that officers of the ACC had committed offences. The judgment of the Court in relation to the Commissioner, it was submitted, may have a direct effect on the rights and liabilities of the ACC including as to the return or destruction of documents. For those reasons the ACC was a necessary party.

34    The ACC originally submitted that even if the Court found that it had jurisdiction, in relation to paragraphs 9, 10 and 11 of the originating application, the Court should dismiss those parts of the application on the basis that the Court would ultimately refuse the relief sought on discretionary grounds. This was a reference to the dangers of fragmentation of the criminal justice process.

35    The ACC submitted that the applicant could challenge the validity of the search warrants as an interlocutory step in the criminal proceedings in the Supreme Court.

36    The ACC submitted that if the Court dismissed paragraphs 9, 10 and 11 of the originating application, the ACC’s position as to whether it should be a party would be the same as its position in relation to Mr McCarthy’s application in its amended form.

37    The ACC submitted the bare declarations sought against the ACC in paragraphs 4 and 5 served no utility and should be struck out.

Consideration

38    In my opinion, attention must be focused on the decision of the High Court in Commissioner of Taxation v Futuris Corp Ltd [2008] HCA 32; 237 CLR 146, which forms the basis of each applicant’s s 39B challenge to the validity of the assessments.

39    That judgment explains the interrelationship between ss 175 and 177 of the Income Tax Assessment Act 1936 and Pt IVC of the Taxation Administration Act and what the plurality (Gummow, Hayne, Heydon and Crennan JJ) described at [23] as the scope of judicial review outside Pt IVC with particular reference to s 39B of the Judiciary Act.

40    The plurality in Futuris said, at [25], [54]-[57], [60] and [66]:

But what are the limits beyond which s 175 does not reach? The section operates only where there has been what answers the statutory description of an “assessment”. Reference is made later in these reasons to so-called tentative or provisional assessments which for that reason do not answer the statutory description in s 175 and which may attract a remedy for jurisdictional error. Further, conscious maladministration of the assessment process may be said also not to produce an “assessment” to which s 175 applies. Whether this be so is an important issue for the present appeal.

…

If this finding as to mental element in the making of the assessment were to withstand the challenge in this Court by the Commissioner, would that, contrary to what has been concluded thus far in these reasons, enliven principles respecting jurisdictional error?

The issue here is whether, upon its proper construction, s 175 of the Act brings within the jurisdiction of the Commissioner when making assessments a deliberate failure to comply with the provisions of the Act. A public officer who knowingly acts in excess of that officer's power may commit the tort of misfeasance in public office in accordance with the principles outlined earlier in these reasons. Members of the Australian Public Service are enjoined by the Public Service Act (s 13) to act with care and diligence and to behave with honesty and integrity. This is indicative of what throughout the whole period of the public administration of the laws of the Commonwealth has been the ethos of an apolitical public service which is skilled and efficient in serving the national interest. These considerations point decisively against a construction of s 175 which would encompass deliberate failures to administer the law according to its terms.

Such failures manifest jurisdictional error and attract the jurisdiction to issue the constitutional writs. To the extent that there is any indication to the contrary in what was said by Mason and Wilson JJ in F J Bloemen Pty Ltd v Federal Commissioner of Taxation that should not be followed.

It should be added that, with respect to the remedy of injunction, what was said in the joint reasons in Plaintiff S157/2002 v The Commonwealth indicates that injunctive relief clearly is “available for fraud, bribery, dishonesty or other improper purpose”.

…

Allegations that statutory powers have been exercised corruptly or with deliberate disregard to the scope of those powers are not lightly to be made or upheld. Remarks by Hill, Dowsett and Hely JJ in Kordan Pty Ltd v Federal Commissioner of Taxation are in point. Their Honours said:

“The allegation that the Commissioner, or those exercising his powers by delegation, acted other than in good faith in assessing a taxpayer to income tax is a serious allegation and not one lightly to be made. It is, thus, not particularly surprising that applications directed at setting aside assessments on the basis of absence of good faith have generally been unsuccessful. Indeed one would hope that this was and would continue to be the case. As Hill J said in San Remo Macaroni Co Pty Ltd v Federal Commissioner of Taxation it would be a rare case where a taxpayer will succeed in showing that an assessment has in the relevant sense been made in bad faith and should for that reason be set aside.”

…

What of the operation of s 177(1) as a limitation upon the evidence which may be received in an application for judicial review under s 75(v) of the Constitution or s 39B of the Judiciary Act? What will be in issue there, as explained earlier in these reasons, are allegations of corruption and other deliberate maladministration. The attribution “correct” given by the concluding word of s 177(1) is inapt to describe the situation which would arise were such allegations (properly pleaded) made good in the judicial review proceeding. Considerations applied above in the construction of s 175 apply here also. The result is that, on its proper construction and its application to the present s 39B case, s 177(1) did not conclude against Futuris curial consideration of alleged deliberate maladministration of the Act with respect to the second amended assessment.

(Citations omitted.)

41    One thing which is clear from this authority is that the judicial review proceedings under s 39B with which the Court is presently concerned have at their centre (properly pleaded) allegations of deliberate or conscious maladministration by the Commissioner and his officers.

42    It is also to be borne in mind that the proper purpose of the proceedings, in association with the Pt IVC proceedings, is to have the tax assessments set aside.

43    In my view, it is inappropriate, and unnecessary in this particular case, for relief to be sought against the ACC and for the ACC to be joined in the judicial review proceedings challenging the validity of the assessments. As I have said at [42] above, this application is, or should be, a proceeding which goes to the validity of the assessments. The question of the validity of the assessments does not involve any relief against the ACC since the focus is, or should be, on the state of mind of the Commissioner.

44    Further, adding the claim for declaratory relief against the ACC and adding the ACC as a party would change the focus of the proceedings unnecessarily and inappropriately from the Commissioner’s state of mind to the ACC’s actions and state of mind. It would, in my opinion, be potentially confusing, embarrassing in the legal sense, to permit evidence to be before the Court in the s 39B proceedings, looking at events otherwise than from the point of view of the Commissioner.

45    I turn to the submissions made on behalf of the applicants.

46    I do not consider that the proposition that the ACC did not accept that it had done anything unlawful, or that either applicant would be able to prove to the contrary, provides any basis for the proposed amendment and joinder.

47    Secondly, that the same issue arose against the Commissioner in the s 39B proceeding does not make it convenient, in the circumstances of the present case, to seek the same declaration in relation to the ACC because, as I have said, it is only the state of mind of the Commissioner which bears upon the validity of the assessments and because relief against the ACC is not a prerequisite to the relief that is sought against the Commissioner.

48    Thirdly, I am not persuaded by the submission that the point, so far as concerns the ACC, also affected other proceedings. In my opinion, if the applicants were successful in the s 39B application against the Commissioner, the point concerning the use of the materials by the Commissioner would have been decided and a declaration in respect of the ACC would be of no added utility for that purpose, whether in relation to other or further assessments or in relation to recovery proceedings.

49    Fourthly, in relation to the Taxation Administration Act Pt IVC proceedings, the proposed declaration in relation to the ACC would not bear on any consideration in those proceedings, by reference to s 43B of the Mutual Assistance in Criminal Matters Act, of the source of any material sought to be tendered. Neither, in my view, would the ACC be a necessary or appropriate party for that purpose.

50    Fifthly, the reference to s 11.2 of the Criminal Code does not take further the matter of the proposed declaration against the ACC and its consequent joinder. As I have said, it is the state of mind of the Commissioner that is relevant to the question of the validity of the assessments and those matters are to be considered from that perspective. This Court is not exercising criminal jurisdiction and will not be determining the guilt or innocence of the ACC of an offence.

51    Sixthly, as to the common issues contention, if either applicant wishes to bring proceedings against the ACC and there is a justiciable and real issue apart from the issue of the validity of the assessments issued by the Commissioner, then he may perhaps do so, but no such proceedings were identified. As to the “common issue” of the source of the documents relied upon and provided to the Commissioner and any factual question as to which documents were directly or indirectly obtained, as I have said, the proposed declaration in relation to the ACC would not bear on the source of any material and neither would the ACC be a necessary or appropriate party for that purpose.

52    Seventhly, the submission on behalf of the applicants as to the unlikelihood of the Commissioner having direct or detailed knowledge of the source of the relevant material and of the internal workings of the ACC is a strong reason not to have joined proceedings and thus to tend to confuse the issue of his knowledge with the knowledge of another entity, the ACC. Further, any properly identified issue of fact as to the source of the relevant material can be determined in the usual way and without the proposed declaration or the ACC being a party.

53    Lastly, to seek to overcome a possible effect of the statutory immunity, s 51(3) of the Australian Crime Commission Act, does not of itself provide a proper basis for joinder where that proper basis is not otherwise established.

54    As to the reliance on Evans v Superannuation Complaints Tribunal, see [32] above, in my opinion, the relevant analogy is between the Commissioner in this case and the Board in that case. In my view, the decision says nothing about the position of the ACC as a party in a s 39B challenge to the validity of tax assessments.

55    I now turn to consider paragraphs 9, 10 and 11 of the applicants’ originating or proposed originating applications.

56    The submission in relation to the search warrants on behalf of Mr Seller was that the issue of each search warrant was invalid for the reason that the person who applied for the warrant had no authority, not being a constable. That was an aspect of the claim that the notices of assessment were invalidly issued. The argument ran that Mr Economou applied for a search warrant; he was not authorised; nevertheless a search warrant was issued. It was submitted that that was not a valid search warrant. Nevertheless that warrant was relied upon to conduct search and seizure of various premises. The Commissioner was present at those searches. Material was collected, the applicant contended unlawfully because the search warrant was invalid. That material was then passed over to the ACC and the process was done unlawfully even if the search warrants were valid because a decision which was required under s 3F of the Crimes Act was not taken.

57    In my opinion, the relief sought in these paragraphs is either unnecessary or irrelevant to the determination of the state of mind of the Commissioner in relation to the impugned assessments, as considered in Futuris. Put differently, neither applicant needs the declaration in paragraph 9 in order to attack the validity of the assessments, and paragraphs 10 and 11 are irrelevant to that attack.

Conclusion

58    For these reasons, in the proceeding number NSD 1440 of 2012 in which Mr McCarthy is the applicant, I refuse the applicant’s interlocutory application to amend to add the proposed claims for relief against the ACC and I refuse the applicant’s interlocutory application to join the ACC.

59    In the proceeding number NSD 704 of 2013 in which Mr Seller is the applicant, the claims for relief in paragraphs 4, 5, 9, 10 and 11 of the applicant’s originating application should be dismissed and the second respondent should be removed as a party to the proceedings.

60    I will hear the parties on costs. Any submissions as to costs should be made at the next listing of these matters on 9 December 2015.

Associate:

Dated: 2 December 2015