Federal Commissioner of Taxation v Australia and New Zealand Banking Group Ltd.
(1979) 143 CLR 499(Judgment by: Jacobs)
FEDERAL COMMISSIONER OF TAXATION v AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD.
Court:
Judges:
Stephen J
Gibbs A.C.J.
Mason
JacobsMurphy JJ.
Judgment date: 9 NOVEMBER 1979
Judgment by:
Jacobs
In my opinion the two notices to the Bank in the long form (as it has been described) dated 23rd February 1977 were valid notices. I agree with the reasons of Mason J. for this conclusion, and there is nothing that I wish to add to his reasons. I also agree that the other two notices to the Bank were defective in the manner and for the reasons which Mason J. describes. I would therefore allow the appeal of the Commissioner and his officers in respect of the two notices first referred to. (at p541)
On the appeal by the Smorgons against the finding of Stephen J. that the notices to them under s. 264 (1) were valid I take a different view from Mason J. I would dismiss the Smorgons' appeal. The notices each required the particular member of the Smorgon family to attend and give evidence
"concerning the following matters -
- (a)
- the income of; and/or
- (b)
- the ascertainment of the taxable income and the tax payable thereon by -
the persons referred to in the Schedule annexed hereto and marked with the letter 'A' for the years ended 30th June 1965 to 1976 inclusive (including income derived by the said persons as trustees or income tax payable by the said persons in the capacity of trustees during the said period, except where all the beneficiaries are persons not listed in the said Schedule A) AND IN CONNECTION THEREWITH I DO FURTHER HEREBY REQUIRE YOU to produce at the said place and time all books, documents and other papers located in safety deposit boxes numbered 1019 and 1848 situate at the Australia and New Zealand Banking Group Limited, Stock Exchange Branch, 351 Collins Street, Melbourne."
The question is whether the words sufficiently or at all indicate that the books, documents and other papers required to be produced are all those relating to the income or assessment of the persons referred to in the annexed schedule. The answer turns on the effect of the words "in connection with". These words refer back to the attending and giving evidence, not evidence generally but evidence on the specified matters. There is therefore a requirement that in connexion with the giving of evidence concerning the income of and/or the ascertainment of the taxable income and the tax payable thereon by the specified persons the addressee of the notice should produce all books, documents and other papers in and at the specified place. In my opinion each notice thus sufficiently indicates that the books, documents and papers required to be produced are those relating to the matters upon which evidence is required to be given, and the requirements of s. 264 (1) are met. (at p542)
As to the other objections to the notices, I find none of them sustainable for the reasons which Mason J. has given. (at p542)
In the statement of claim the Commissioner and other plaintiffs alleged that the Smorgons and the Bank refused to permit them to have access to the safe deposit boxes or to the books, documents and other papers contained in the boxes. A declaration was claimed that the plaintiffs were entitled to access to the documents contained in each of the boxes. The Smorgons and the Bank each denied the allegation that they had so refused. The Smorgons by counterclaim sought a declaration that they were not obliged to give the Commissioner and the other plaintiffs access to the safe deposit boxes or to the books, documents or other papers contained therein. Stephen J. made neither declaration. The issue whether or not access had been denied does not appear to have been litigated before him. The Commissioner and his officers do not, as against the Bank, appeal against the fact that Stephen J. did not make the declaration sought, but in their cross-appeal to the Smorgons' appeal they seek a declaration of entitlement to access under s. 263. I am not satisfied that the matter was litigated before Stephen J. There can be no doubt that the Commissioner and his officers are entitled to access because s. 263 distinctly says so. Of the precise rights or duties given or incurred as a consequence of his statutory right I do not propose to attempt any exposition. There is no proof that the Commissioner or his officers made particular requests to the Bank or the Smorgons which were refused.
Much could turn on the nature of the request and the nature of the refusal to permit access when considering whether the refusal was of a kind which could amount to the obstruction of a public officer in the exercise of his statutory power and thus be a misdemeanour at common law. (See Halsbury's Laws of England 4th ed., vol. 11, par. 928: R. v. Smith (1780) 2 Dougl KB 441 ( 99 ER 283 ) .) If it were so, this would in my opinion entitle the Commissioner and his officers to invoke the assistance of the civil courts to prevent continued obstruction of the exercise of his statutory power. Whether or not a refusal to open locked doors to which a person has the key or keys amounts to obstruction is a question upon which I express no opinion without evidence that these things have happened and in what circumstances they happened. In the circumstances I would dismiss the cross-appeal. (at p543)
In summary, therefore, I would allow with costs the Commissioner's and his officers' appeal against the Bank; I would dismiss with costs the Smorgons' appeal against the Commissioner and his officers and the latter's cross-appeal against the Smorgons. (at p543)