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WEBB v DFC of T

Judges:
Cooper J

Court:
Federal Court

Judgment date: Judgment handed down 27 August 1993

Cooper J

This is an application by the applicant for inspection of eighty-nine (89) documents contained in a file described in an affidavit of Ms Saarimaki, an officer of the respondent, as ``the taxation debt file''. In relation to those documents the respondent resists an order for inspection on the ground of legal professional privilege.

The background to the application may be briefly stated. In February, 1986 the respondent forwarded to the Australian Government Solicitor (``A.G.S.'') material and instructions to institute recovery proceedings against the applicant for money allegedly due as arrears of tax for past financial years. In consequence, writ action 1033 of 1986 was commenced in the Supreme Court of Queensland. Those proceedings were compromised by a deed between the parties agreed in 1989 and executed in 1990. The deed required payment by instalment of an agreed sum of $200,000.00.

Notices of Instalments of Quarterly Provisional Tax issued on 29 July, 1988, 22 October, 1988, 20 January, 1989 and 21 February, 1990. On 20 March, 1990 a Notice of Assessment for the 1989 financial year issued. The assessment included a sum under the heading ``OTHER AMOUNTS PAYABLE'' of $179,246.91. This amount did not represent the balance due under the deed. The figure appears to include unpaid instalments of provisional tax for the 1988 and 1989 financial years and additional tax for late payment of those instalments. Disputes arose as to how the respondent had calculated the applicant's tax liability, whether the obligation to pay the 1988 provisional tax was included within the compromise, the power of the applicant to require a credit for provisional tax to be offset against an instalment due under the deed, and the entitlement of the respondent to include and impose additional tax for late payment on quarterly provisional tax in instalments once a final assessment for the year issued. The quarterly provisional tax instalments were not paid during this period. Nor was the income tax for the 1989 financial year.

On 26 October, 1992 the A.G.S., on behalf of the respondent, demanded payment of $209,801.21 being the quarterly provisional tax for the 1988 and 1989 financial years together with additional tax for late payment calculated to 13 October, 1992. On 23 November, 1992 the respondent conceded that the quarterly provisional tax for the 1988 financial year was compromised in the deed and issued a new demand for payment of the amount $69,224.54 as the tax due for the 1989 financial year together with additional tax for late payment alleged to be calculated in accordance with the

ATC 4681

decision in
Kinny v. DFC of T 88 ATC 4049. The primary tax claimed was $29,158.65 and the additional tax for late payment was $40,065.89.

The applicant applied for an extension of time to pay under section 206 of the Income Tax Assessment Act (``ITAA'') and for remission of the additional tax for late payment under section 207(1A) of the ITAA. The request for an extension of time was refused on 19 January, 1993. The request for remission was refused on 10 February, 1993.

The applicant on 10 March, 1993 applied to this court for review of the decision to refuse remission. The applicant relies upon a number of grounds to support his application. Included in those grounds are the following:-

``3(B) The Respondent took into account irrelevant considerations namely:

  • (i) That the Applicant should be punished for having been in dispute with the Respondent for many years before entering a Deed of Compromise with the Respondent on or about June 1990;
  • ...
  • (iii) That the Applicant ought be punished for disputing the seriously erroneous, both in principle and amount, claim by the Respondent on 26th October 1992 for $209,801.21. The Respondent subsequently acknowledged only after detailed and persistent submissions by the Applicant, that the claim, both in principle and amount, was substantially erroneous.
  • ...

(C) The Respondent acted with bias and in breach of his statutory duty to act impartially in determining the Applications in that:

  • (i) The admission of the error referred to in paragraph 3(B)(iii) was such a serious embarrassment to a member of the Respondent's staff, Ms Leena Saaramaki [sic], as to prevent her, shortly after that event, from acting with such an open and impartial mind in relation to the Applicant's affairs as would be necessary to take only relevant considerations into account;
  • (ii) Accordingly, the Respondent ought to have prevented Ms Saaramaki [sic] from having any significant influence upon the decisions upon the Applications;
  • (iii) The Respondent failed to so prevent.''

On or about 10 February, 1993 the respondent gave written reasons for the decision to refuse to remit the additional tax for late payment. The reasons are those of Ms Saarimaki who was the officer of the respondent who made the relevant decision.

Ms Saarimaki filed an affidavit in which she deposed:-

``2. At the time I made the said decision I had before me a taxation file relating to the applicant's outstanding tax debt (`the taxation debt file') and the application which is Annexure `MJH18' to the affidavit of Michael James Hart sworn herein on 29 April 1993. I assumed responsibility within the office for the taxation debt file on 16 September, 1992. On reviewing that file on taking it over I noted then that neither provisional tax nor income tax for the 1989 year had been paid by the applicant, nor had 1988 provisional tax. By the time I came to make the decision under review I had reached the view that amounts outstanding in respect of the 1988 year had been compromised under the Deed of Settlement to which I refer later in this affidavit and that save for the issue of additional tax for late payment of instalments, the indebtedness generated by the 1989 provisional tax instalment notices had been subsumed by the subsequent issue of the applicant's 1989 year notice of assessment. I studied both the taxation debt file and the aforesaid application before making my decision. I ascertained the facts which I found in my Statement of Reasons from the correspondence and information contained on the taxation debt file as well as the aforesaid application.''

On 30 July, 1993 I ordered that inspection be given of ``the taxation debt file'' subject to the respondent's right to withhold from inspection documents in respect of which legal professional privilege was claimed.

ATC 4682

The documents in issue were produced to the court for inspection. They fall into the following categories:-

  • (a) Advice, communications, file notes etc. of and passing between the A.G.S. and the respondent relating to the institution and compromise of the recovery proceedings in the Supreme Court of Queensland. In this category are documents relating solely to the giving of legal advice and documents brought into existence for the sole purpose of the litigation.
  • (b) Advice, communications, file notes etc. of and passing between the A.G.S. and the respondent relating to the performance by the applicant of his obligations under the deed and as to possible action in respect thereof. In this category are documents relating to the giving of legal advice and documents which were brought into existence solely in contemplation of the institution of recovery proceedings under the deed and additionally for recovery of tax and additional tax for late payment for the 1989 financial year.
  • (c) Advice, communications etc. of and passing between the A.G.S. and the respondent relating to the application for an extension of time made by the applicant and refused by the respondent.
  • (d) Advice, communications etc. of and passing between the A.G.S. and the respondent relating to the decision the subject of these proceedings.

The applicant appeared in person and submitted:-

  • (a) The documents were relevant because they formed part of the material which was before the decision-maker and to which she referred in making the decision under review.
  • (b) The documentation relating to the compromised proceedings in the Supreme Court were brought into existence for the purpose of that litigation and that that litigation having concluded, legal professional privilege no longer attached to them for the purpose of these proceedings or alternatively that reference to them for the purpose of making the decision, the subject of these proceedings, meant that any legal professional privilege which previously may have attached to them was lost.
  • (c) The documentation other than that relating to the earlier litigation was not brought into existence for the sole purpose of the proceedings now before the court and thus did not satisfy the test in
    Grant v. Downs (1976) 135 CLR 674.
  • (d) The documentation relating to the decision in issue having formed part of the material to which reference was made by the decision-maker was not material to which legal professional privilege attached.

The respondent submitted that:-

  • (a) There existed as between the A.G.S. and the respondent a solicitor/client relationship.
  • (b) The documentation was brought into existence for the purpose of either giving legal advice or for the purposes of litigation or anticipated litigation.
  • (c) Legal professional privilege attached to the material at the time it came into existence and remained thereafter irrespective of what use the material may thereafter be put to by the respondent. In this respect the respondent relied on the decision of the Full Court of the Supreme Court of South Australia in
    Electricity Trust of South Australia v. Mitsubishi Australia Ltd. & Ors (1991) 57 SASR 48.
  • (d) The respondent had not intentionally or impliedly waived the privilege by the decision-maker referring to the documents before making her decision.
  • (e) No basis for a case in terms of paragraphs 3(B)(i) and (iii) and 3(C) of the principal application had been established on the material before the court and the application for inspection was ``fishing''.

The applicant did not contest that a relationship of solicitor and client existed between the A.G.S. and the respondent, nor that the material in the documentation in issue came into existence and was communicated on a confidential basis. A perusal of the documentation shows that such is clearly the case. Nor did the applicant contend that legal professional privilege could not arise in relation to legal advice between one department or branch of government and another. That it can is established by the decision of the High Court in
Waterford v. The Commonwealth of Australia (1986-1987) 163 CLR 54.

The applicant did not refer the court to any authority in support of the propositions he

ATC 4683

contended for. Such support as there is for the contention that legal professional privilege has no role to play when the legal advice forms part of an administrative decision making process, as opposed to legal advice when government is engaged in the legal process eg litigation, is to be found in the judgments of Dawson J. in
Attorney-General (N.T.) v. Kearney (1985) 158 CLR 500 at 532-533 and in Waterford v. The Commonwealth at 100-101. Deane J. in Waterford v. The Commonwealth accepted that legal professional privilege may extend to protect communications with or within the Executive Government. However, his acceptance was subject to one qualification the extent of which it was unnecessary for his Honour to determine in Waterford v. The Commonwealth. His Honour said (at 83):-

``The qualification is that it is unnecessary for present purposes to determine the extent, if at all, to which the principle of legal professional privilege entitles an administrative officer to keep confidential legal advice, which constituted an actual basis of a purported exercise by him of statutory powers in the performance of a public duty, in proceedings involving a challenge to that purported exercise upon the ground that it was vitiated by fundamental misapprehension or collateral purpose. At least in that limited area, I see great force in the observations of Dawson J. in his dissenting judgment in
Attorney-General (N.T.) v. Kearney (1985) 158 C.L.R., at pp. 532-533 to the effect that, for some purposes, the doctrine of public interest immunity should be recognized as solely governing the right to insist upon the confidentiality of professional legal advice.''

The majority of the court (Mason, Wilson and Brennan JJ.) rejected the dissenting opinion of Dawson J. in Kearney (Mason and Wilson JJ. at 65; Brennan J. at 74).

In their joint judgment, Mason and Wilson JJ. said (at 63-64):-

``The common law, in the view that we have taken, recognizes that legal professional privilege attaches to confidential, professional communications between government agencies and their salaried legal officers undertaken for the sole purpose of seeking or giving legal advice or in connexion with anticipated or pending litigation. Provided that the sole purpose test enunciated in Grant v. Downs is satisfied, there is no warrant to draw an arbitrary line through the functions of government in order to exclude the privilege from those described as of an administrative nature. All the functions of the executive government may be so described. No distinction can be drawn between a decision to grant a pension and a decision whether to defend a claim in tort or contract. The growing complexity of the legal framework within which government must be carried on renders the rationale of the privilege, as expressed in Grant v. Downs, increasingly compelling when applied to decision-makers in the public sector. The wisdom of the centuries is that the existence of the privilege encourages resort to those skilled in the law and that this makes for a better legal system. Government officers need that encouragement, albeit, perhaps, for reasons different to those which might be expected to motivate the citizen.''

Brennan J. said (at 74-75):-

``In any event, I should think that the public interest is truly served by according legal professional privilege to communications brought into existence by a government department for the purpose of seeking or giving legal advice as to the nature, extent and the manner in which the powers, functions and duties of government officers are required to be exercised or performed. If the repository of a power does not know the nature or extent of the power or if he does not appreciate the legal restraints on the manner in which he is required to exercise it, there is a significant risk that a purported exercise of the power will miscarry. The same may be said of the performance of functions and duties. The public interest in minimizing that risk by encouraging resort to legal advice is greater, perhaps, than the public interest in minimizing the risk that individuals may act without proper appreciation of their legal rights and obligations. In the case of governments no less than in the case of individuals, legal professional privilege tends to enhance application of the law, and the public has a substantial interest in the maintenance of the rule of law over public administration. Provided the sole purpose for which a

ATC 4684

document is brought into existence is the seeking or giving of legal advice as to the performance of a statutory power or the performance of a statutory function or duty, there is no reason why it should not be the subject of legal professional privilege.''

In my opinion the majority decision in Waterford v. The Commonwealth supports the conclusion that the fact that the advice relates to the exercise of a statutory power or the performance of a statutory duty or function does not preclude legal professional privilege attaching to it. (See also
Re Proudfoot and Human Rights and Equal Opportunity Commissioner (1992) 16 AAR 411 at 415 (O'Connor J. (President), Travers and Attwood (Members)). The documentation relating to advice given by the A.G.S. on the issues of extension of time and remittance of additional tax for late payment is therefore privileged. The privilege is not limited to documents brought into existence for the sole purpose of litigation. It extends to documents relating to the giving of general legal advice. In each case the sole purpose test must be met.

In my opinion the documents which came into existence solely for the purpose of the litigation in the Supreme Court and for the purpose of anticipated litigation to enforce performance of the deed of compromise and further to recover the tax assessed together with additional tax for late payment for the 1989 financial year, satisfy the tests laid down in Grant v. Downs at 682-683;
National Employers' Mutual General Insurance Association Ltd. v. Waind & Anor (1979) 141 CLR 648 and Waterford v. The Commonwealth to support a claim to immunity from disclosure on the basis of legal professional privilege. That privilege comes into existence at the time the documents come into existence. The privilege is not limited to that litigation but exists generally and in respect of later litigation whether or not it is associated with the earlier litigation (
Baker v. Campbell (1983) 153 CLR 52 at 96, 114;
Re Director of Investigation and Research and Shell Canada Limited (1975) 55 DLR (3d) 713 at 723;
Waterford v. Department of the Treasury (1985) 5 FCR 76 at 82;
Calcraft v. Guest [1898] 1 Q.B. 759 at 761; Bray on Discovery (1885) at 371).

The use of the documents for a subsequent different purpose from that for which they were brought into existence does not mean that the original legal professional privilege is lost unless the documents are used in such a way that their contents are disclosed in circumstances which would constitute an implied or actual waiver of the privilege by the client (Electricity Trust of South Australia v. Mitsubishi Australia Ltd. at 59).

Is the legal professional privilege which attached to the documents in issue lost merely because the decision-maker had reference to them in the circumstances disclosed in her affidavit? The applicant submits it is because the process of judicial review of administrative decisions exposes the material before the decision-maker and in consequence reference to the material constituted a waiver of the privilege on the part of the decision-maker. Although waiver was not argued in Waterford v. The Commonwealth, the underlying reasoning of the majority is against such a result. If legal professional privilege attaches to confidential professional communications for the sole purpose of giving legal advice or in connection with anticipated or pending litigation where the particular function of government in issue is an administrative process, to hold that reference to the advice in the making of the administrative decision is a waiver of the privilege is to render nugatory the recognition of the privilege. More importantly authority is against the contention of the applicant.

Mere reference of itself to the material to which legal professional privilege attaches and without its disclosure does not amount to a waiver by implication of the privilege. There must be additionally some conduct on the privilege holder's part which makes it unfair to maintain the privilege before waiver will be implied. In
Attorney-General (N.T.) v. Maurice & Ors (1986) 161 C.L.R. 475, Gibbs C.J. said (at 481):-

``There was of course no express waiver in the present case and there is nothing to suggest that the claimants had any actual intention to waive privilege in the source documents. The principle applicable in these circumstances seems to me to be well stated in Wigmore op. cit., par. 2327:

`In deciding it, regard must be had to the double elements that are predicated in every waiver, i.e., not only the element of implied intention, but also the element of fairness and consistency. A privileged

ATC 4685

person would seldom be found to waive, if his intention not to abandon could alone control the situation. There is always also the objective consideration that when his conduct touches a certain point of disclosure, fairness requires that his privilege shall cease whether he intended that result or not. He cannot be allowed, after disclosing as much as he pleases, to withhold the remainder. He may elect to withhold or to disclose, but after a certain point his election must remain final.'

The decisions in which this question has been considered seem to me to be particular applications of the rule that in a case where there is no intentional waiver the question whether a waiver should be implied depends on whether it would be unfair or misleading to allow a party to refer to or use material and yet assert that that material, or material associated with it, is privileged from production. Thus it has been held that the privilege in respect of a document is not waived by the mere reference to that document in pleadings (
Roberts v. Oppenheim (1884) 26 Ch.D. 724;
Buttes Oil Co. v. Hammer [No. 3] [1981] Q.B. 223, at pp. 252) or in an affidavit (
Lyell v. Kennedy (1884) 27 Ch.D. 1, at p. 24;
Infields, Ltd. v. P. Rosen & Son [1938] 3 All E.R. 591, at p. 597
Tate & Lyle `International Co. Ltd. v. Government Trading Corporation', The Times, 24 October, 1984), although the position will be different if the document is reproduced in full in the pleading or affidavit:
Buttes Oil Co. v. Hammer [No. 3] [1981] Q.B., at p. 252. These cases may be explained by saying that it is not unfair or misleading to refer to a document in a pleading or affidavit which is not put into evidence but that if the document is set out in full the privilege is waived. A fortiori, of course, privilege in respect of materials used in drawing a pleading or an affidavit and not referred to therein, would not lose their privilege because they had been used in that way.''

(See also Mason and Brennan JJ. at 487-488, Deane J. at 492-493, Dawson J. at 496-497.)

In the instant case there was no intention to waive the privilege nor has there been any partial disclosure of the contents of the material in the reasons for the decision furnished by the decision-maker or in the affidavit material filed in these proceedings by the respondent. Where is the unfairness in maintaining the privilege from disclosure? The applicant submits that the unfairness lies in his not knowing what the legal advice was and what was communicated by the respondent to the A.G.S. for the purpose of obtaining the advice or in preparing or undertaking the actual or threatened litigation. However, that is an ``unfairness'' which is the inevitable consequence of the operation of legal professional privilege. For that reason the privilege is confined. As Mason and Brennan JJ. said in Attorney-General (N.T.) v. Maurice (at 487):-

``When the privilege applies, it enables the client to keep the communication from disclosure and interferes with the public's `right to every man's evidence':
Cobbett's Parliamentary History (1812), vol. 12, p. 675. Because of this conflict between the public interest in ensuring the availability of all relevant evidence in a particular case and the public interest in the administration of justice through effective legal representation, the privilege is confined within strict limits:
Grant v. Downs (1976) 135 C.L.R. 674, at p. 685, per Stephen, Mason and Murphy JJ.''

Further, it is difficult to see that disclosure of the privileged material is necessary to the applicant in the preparation of his case, save perhaps in one area which I will deal with shortly.

The grounds relied upon by the applicant are that the respondent failed to take into account relevant considerations (paragraph 3(A)), took into account irrelevant considerations (paragraph 3(B)) and acted with bias and in breach of statutory duty (paragraph 3(C)).

The matters particularised in paragraph 3(A)(i)-(v) are matters of fact, the proof and relevance of which is not in any way assisted or dependent upon disclosure of the privileged material. The matters particularised in 3(B)(ii) and (iv) require consideration of communications passing between the parties, their meaning and effect and what relevance ought, if any, to have been given to them by the decision-maker. Again proof and relevance of them is in no way assisted by disclosure of the privileged material.

The allegations in paragraphs 3(B)(i) and (iii) ``[t]hat the Applicant ought to be punished''

ATC 4686

and paragraph 3(C) amount to an allegation of an abuse of a statutory power or duty for an improper purpose. Where such conduct is alleged, it is not a question of waiver of the privilege or the exercise of some discretionary power in the court to order inspection notwithstanding the privilege; it is a question of whether the conduct is such as to bring the matter within the category of exceptions which denies privilege to documents which would otherwise normally obtain the benefit of legal professional privilege. Such a position was considered by the High Court in
Attorney- General (N.T.) v. Kearney (1985) 158 CLR 500.

In Attorney-General (N.T.) v. Kearney the allegation was that the power to make regulations under the Town Planning Ordinance 1964 (N.T.) had been used to defeat Aboriginal land claims made under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). Legal professional privilege was claimed in respect of advice and communications between the Northern Territory government and the government's legal officers relating to the making of the regulations. The court by a majority (Gibbs CJ., Mason, Wilson and Brennan JJ.) held that the communications were not privileged. Gibbs CJ. said (at 515-516):-

``In my opinion the present case comes within the principle which forms the basis of the rule that denies privilege to communications made to further an illegal purpose. It would be contrary to the public interest which the privilege is designed to secure - the better administration of justice - to allow it to be used to protect communications made to further a deliberate abuse of statutory power and by that abuse to prevent others from exercising their rights under the law. It would shake public confidence in the law if there was reasonable ground for believing that a regulation had been enacted for an unauthorized purpose and with the intent of frustrating legitimate claims, and yet the law protected from disclosure the communications made to seek and give advice in carrying out that purpose. It is unnecessary to consider whether the decision in
Crescent Farm (Sidcup) Sports Ltd. v. Sterling Offices Ltd. [1972] Ch. 553 was too restrictive, or whether the view expressed in the modern United States cases that the principle extends to communications made for the purpose of committing a tort is too wide. The law strikes a balance between securing proper representation by encouraging full disclosure on the one hand, and requiring the production of all relevant evidence on the other, but the balance more readily inclines in favour of disclosure where privilege from disclosure might conceal an abuse of delegated powers to enact legislation, and thus obstruct a proper challenge to the validity of part of the law itself. The basis of the privilege is not endangered if it is held that it does not protect communications made by a public authority for the purpose of obtaining advice or assistance to exceed its statutory powers.

The privilege is of course not displaced by making a mere charge of crime or fraud or, as in the present case, a charge that powers have been exercised for an ulterior purpose. This was made clear in
Bullivant v. Attorney-General (Vict.) [1901] A.C., at pp. 201, 203, 205 and in
O'Rourke v. Darbishire [1920] A.C. 581, at pp. 604, 613-614, 622-623, 632-633. As Viscount Finlay said in the latter case [1920] A.C., at p. 604, `there must be something to give colour to the charge'. His Lordship continued:

`The statement must be made in clear and definite terms, and there must further be some prima facie evidence that it has some foundation in fact... The Court will exercise its discretion, not merely as to the terms in which the allegation is made, but also as to the surrounding circumstances, for the purpose of seeing whether the charge is made honestly and with sufficient probability of its truth to make it right to disallow the privilege of professional communications.'''

(See also Mason and Brennan JJ. at 517; Wilson J. at 524-525.)

In the instant case there is no material which would satisfy a finding that a prima facie case exists that there has been a deliberate abuse of statutory power in the manner alleged by the applicant, as was the case in Attorney-General (N.T.) v. Kearney, nor even that a colourable one has been made out. The decision-maker has given written reasons for her decision, and identified and provided copies of all documents she says she relied upon in making her decision.

ATC 4687

Those reasons and the documents do not disclose any colour of a deliberate abuse of statutory power or bias but do expose a process of reasoning which may or may not ultimately be held to be unobjectionable.

The applicant alleges against the respondent in paragraphs 4 to 30 of his affidavit filed on 24 April, 1993 conduct which he contends demonstrates that his allegations in paragraphs 3(B)(i) and (iii) and 3(C) are made out. Certain of the conduct relates to the respondent having had struck out before the Administrative Appeals Tribunal a number of taxation appeals due to the non-appearance of the applicant or his legal representatives on directions hearings before the Tribunal. The appeals were struck out on two occasions.

On the first occasion they were reinstated by the Tribunal on the applicant's request without objection by the respondent. On the second occasion the Tribunal refused to reinstate the appeals. Those appeals concerned a taxation minimisation scheme of a type which was subsequently upheld. The applicant alleges that although the respondent gave the benefit of the ruling to others similarly placed to the applicant who had appeals pending, the respondent refused to do the same for the applicant on the basis that he had no current appeal pending. The applicant contends that to the knowledge of the respondent it was always his intention to prosecute the appeals and that the respondent acted in seeking the striking out of them to deny him the benefit of the deduction in issue which was substantial.

Without going into the merits of this complaint, the fact remains that the Tribunal refused to reinstate the proceedings presumably on what appeared to it to be good and substantial grounds. Further, all or some of the matters, the subject of the appeals, were compromised in the deed executed by the parties.

The applicant also complains of the conduct of a Mr Pulverenti, an officer of the respondent, who used information of the assets of the applicant in ``without prejudice'' negotiations after dismissal of the appeals to seize those assets while negotiations were continuing and without due compliance with section 218 of the ITAA. This conduct of the respondent, it is alleged, caused the applicant acute embarrassment.

In the negotiations in the later part of 1989 the applicant's solicitors requested a reconciliation of the amounts being claimed by the respondent in order that the applicant and his advisers could make an offer to resolve all outstanding matters. It is alleged that the information was not provided. Without the information the applicant alleges that he was in a position of disadvantage in negotiating the compromise and only signed the deed to avoid bankruptcy.

The amount of tax and additional tax for late payment claimed by the respondent prior to the compromise for the years 1977 to 1988 was $435,343.50 being $160,693.91 for primary tax and $274,649.59 for additional tax. The tax payable was compromised into an obligation under the deed to pay $200,000.00. The deed also recited that all appeals which had been referred to the Administrative Appeals Tribunal ``with the consent of the taxpayer now have been settled or withdrawn''. Prima facie the matter was compromised to the applicant's advantage and resolved the issues in dispute up to and including the 1988 financial year.

The applicant concedes in his affidavit that relations between himself and Mr Pulverenti were not good. However Mr Pulverenti seems to have had nothing to do with the relevant file since 16 September, 1992 when Ms Saarimaki took responsibility for it.

Controversy between the parties was renewed with the demand for payment made on 26 October, 1992.

The applicant in his affidavit details a number of requests for information to the respondent which were not replied to, confusion as to the form in which assessments issued, claims for amounts which were subject of the deed of compromise, claims for both the provisional tax and the tax as finally assessed in the 1989 income year and miscalculation of the additional tax payable. Some of these matters were conceded by the respondent; others were not. Whilst they are matters to ground arguments of relevancy of the matters to which the decision-maker ought to have taken account, they do not in themselves colour the conduct of the respondent as an abuse of statutory power or duty as particularised by the applicant.

What a perusal of the material shows is that the applicant appears to have understood the amount in the assessments under the heading

ATC 4688

``OTHER AMOUNTS PAYABLE'' as the balance outstanding under the deed which was not the case. Whether or not he was entitled to do so and whether or not the respondent made an adequate and timely explanation of what was claimed and the basis of the assessment are issues in the primary application. However, the parties being at cross-purposes does not of itself bespeak an abuse of statutory power or duty. Nor does the fact that the respondent conceded the correctness of the applicant's contentions and substantially reduced the amount demanded.

There are further reasons against making the order sought. Discovery and inspection in the context of judicial review will not be allowed where an applicant is ``fishing'' for a ground upon which the decision can be attacked (
Nestle Australia Limited v. FC of T 86 ATC 4499; (1986) 11 FCR 453 and on appeal
FC of T v. Nestle Australia Ltd. 86 ATC 4760; (1986) 12 FCR 257. In the instant case the applicant has had access to all of the documentation other than that in respect of which legal professional privilege is claimed. The applicant does not put any of that material forward to ground a case of abuse of statutory power or duty or bias. The respondent has undertaken to make Ms Saarimaki available for cross-examination on the hearing of the application so that the applicant does not run any risk that he will be denied an opportunity to test the basis upon which the decision was made. Further, I have inspected the documents to satisfy myself that the plea of legal professional privilege has not been used to cover any abuse of statutory power or duty as alleged. In my opinion there is nothing in the documents in issue which would assist the applicant to make out such a ground.

In the final result I am satisfied that the claim to legal professional privilege is well-founded, has not been waived and does not operate to cause an injustice to the applicant in the prosecution of his application. The application will be dismissed.

THE COURT ORDERS:

The application for inspection of the documents in respect of which the respondent claims legal professional privilege is dismissed.


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