Industrial Equity Ltd v Commissioner of Taxation

Grounds of review 13 Counsel for the applicants raised the following three points: (i) The first point relates to the form of the notice, in that the second applicant is required to attend "before any or all of Ms Jan Farrell, Ms Jillian Saint, Mr Frank Breen and Mr John Sheldon whom I authorise for that purpose and myself". The notice was given by the second respondent and it was not in dispute that the second respondent had a relevant delegation from the Commissioner of Taxation, the first respondent. However, for reasons to which I shall refer to in a moment, the applicants argued that this form of notice was invalid. (ii) The second point was that the errors which had been made in relation to the previous purported notices and the unsatisfactory nature of the reasons given in relation to them meant that, in the absence of any further reasons, there was sufficient probability that the same errors vitiated the new notice as to warrant the grant of a stay pursuant to s 15 of the ADJR Act to enable the issue to be investigated. (iii) The third point was that the circumstances of the issue of the notice provided a proper basis for alleging that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made and perhaps also a basis for review under some other heads under the ADJR Act. Counsel for the applicants conceded that this point was not pleaded and would necessitate amendment to the pleadings. This point was also put in relation to the application for an interlocutory stay. 14 The first point is a question of construction of the Act which does not depend upon any facts save for the form of the notice. The parties agreed that this could be argued on a final basis, and this took place. The other points require to be dealt with on an interlocutory basis. I shall deal with the question of construction first.

Construction of s 264(1)(b) 15 The relevant part of s 264(1) is as follows: "264(1) The Commissioner may by notice in writing require any person …: (a) … (b) to attend and give evidence before him or before any officer authorized by him in that behalf concerning his or any other person's income or assessment …" 16 Counsel for the applicants attacked two aspects of the form of the notice. The first is that the notice contemplates that the persons before whom evidence is to be given can include both the second respondent and one or more officers. He argued that s 264(1)(b) contains a true disjunctive "or" in the phrase "before him or before any officer authorized by him in that behalf". The second point is that this notice is uncertain or unauthorised in that it does not specify which person or persons the second applicant is to attend and give evidence before. 17 Counsel for the respondents, in answer to the first point, relied upon authorities such as Unity APA Ltd v Humes Ltd (No 2) (1987) VR 474, particularly at 481-2; Ormerod v Blaslov (1989) 52 SASR 263, particularly at 269-270; Commissioner of Taxation (Cth) v Citibank Ltd (1989) 20 FCR 403, particularly at 413; and Minister for Immigration & Ethnic Affairs v Baker (1997) 73 FCR 187, particularly at 194-5, which, he said, establish that "or" need not be a true disjunctive. It was then submitted that as the Full Court in Wouters v Deputy Commissioner of Taxation (NSW) (1988) 20 FCR 342 at 348-9 decided that "officer" in the phrase to which attention is directed in this case can include the plural (so that more than one officer may be authorised for the relevant purpose), there is no rational basis for excluding the Commissioner (or his deputy) from any multi-person panel so constituted. In this regard, counsel for the respondents also draw my attention to the decision of Lockhart J in Johns v Connor (1992) 35 FCR 1, particularly at 8-9, and Dunkel v Commissioner of Taxation (1990) 27 FCR 524 at 525 and 528. 18 In my opinion, the section does contain a true alternative as submitted by counsel for the applicants. I have considered each of the cases to which reference has been made, and, beyond the general proposition that "or" may sometimes not be a true disjunctive, I find little assistance in construing this section. The only direct guidance to be gleaned from these authorities is, if anything, in favour of the applicants. In Wouters (supra) their Honours noticed an argument by counsel for the appellants to the following effect, at 348-9: "However, they argue that there is here an expression of a contrary intention; the provision for attendance before "any officer" is an alternative to attendance before the Commissioner. The Commissioner is necessarily a single person. So, according to counsel, the intention of Parliament was examination by a single person; …" Although the construction contended for by counsel for the appellants in that case was not acceded to, their Honours said nothing to cast doubt upon the foundation for that particular submission . 19 I should also say something about Commissioner of Taxation (Cth) v Citibank Ltd (supra) as counsel for the respondents placed some emphasis upon it because it related to s 263 of the Act, which has obvious connections with s 264. Although the time available does not enable me to indulge in a complete analysis of this decision, it seems to me that the general nature of the authorisation which that decision accords in the context of s 263 has no counterpart in s 264(1)(b), where a particular notice is required for a particular attendance. 20 This consideration also gives substance to the second point advanced on behalf of the applicants, namely, that a notice pursuant to s 264(1)(b) must specify the person or persons before whom the examinee is to attend. Although the view as to construction which I have expressed in relation to the first point is sufficient to decide the case, and I do decide the case on that basis, I incline to the view that the notice is bad on the second basis as well, as a matter of authority rather than uncertainty. I take that view because s 264(1)(b) operates by way of notice requiring a particular attendance, and it seems to me that the better view is that you should know before whom you are to attend.

Conclusion and orders 21 It was submitted by counsel for the respondents that a s 264 notice may be severable and that this notice could be saved by taking a blue pencil to it. Assuming for the purposes of argument that severance might be possible, I do not think that it can be applied in the present case. There is a choice between alternatives on each ground of attack and it is not for the Court to make that choice. 22 These conclusions mean that it is unnecessary for me to consider the other arguments advanced and enable the proceedings to be disposed of. Accordingly, I order that the notice directed by the second respondent to the second applicant dated 25 October 1999 for attendance pursuant to s 264 of the Income Tax Assessment Act 1936 (Cth) on 28 October 1999 be set aside. I also order that the respondents pay the costs of the applicants.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Counsel for the Applicants: Mr AH Slater QC with Mr NJ Williams

Solicitor for the Applicants: Blake Dawson Waldron

Counsel for the Respondents: Mr A Robertson SC with Mr IS Young

Solicitor for the Respondents: Australian Government Solicitor

Date of Hearing: 26, 27 October 1999